Stewart v. Ryan

• Citation: 520 N.W.2d 39
• Decision Date: 18 July 1994
• Docket Number: No. 930329,930329
• Parties: Eric STEWART, Jennifer Stewart, and their minor child, Amanda Stewart, individually and Eric Stewart as a trustee for the Workers' Compensation Bureau of North Dakota, Plaintiffs and Appellants, v. Robert E. RYAN, individually and Ryan Bar, Inc., D/B/A Johnny's Bar; Bill G. Ferrell, individually and D/B/A Red Dog Saloon, and The Larimore Improvement Association, Defendants and Appellees. Civ.
• Court: United States State Supreme Court of North Dakota

Page 39

520 N.W.2d 39

Eric STEWART, Jennifer Stewart, and their minor child Amanda Stewart, individually and Eric Stewart as a trustee for the Workers' Compensation Bureau of North Dakota Plaintiffs and Appellants, v. Robert E. RYAN, individually and Ryan Bar, Inc., D/B/A Johnny's Bar; Bill G. Ferrell, individually and D/B/A Red Dog Saloon, and The Larimore Improvement Association Defendants and Appellees.

Civ. No. 930329.

Supreme Court of North Dakota.

July 18, 1994.

Richard A. Ohlsen, of Moosbrugger, Ohlsen, Dvorak & Carter, Grand Forks, for plaintiffs and appellants.

Thomas L. Zimney, of Vaaler, Warcup, Woutat, Zimney & Foster, Grand Forks, for defendant and appellee Robert E. Ryan.

Michael J. Morley, of Morley, Morley & Light, Ltd., Grand Forks, for defendant and appellee Bill G. Ferrell.

Jay H. Fiedler, of Letnes, Marshall, Fiedler & Clapp, Ltd., Grand Forks, for defendant and appellee Larimore Improvement Ass'n.

VANDE WALLE, Chief Justice.

Eric Stewart, his wife, Jennifer, and their minor child, Amanda, ("Stewarts") appealed from a summary judgment dismissing their dram shop action against Robert Ryan, individually, and Ryan Bar, Inc., d/b/a Johnny's Bar ("Johnny's Bar"); Bill Ferrell, individually and d/b/a Red Dog Saloon ("Red Dog"); and the Larimore Improvement Association ("LIA"). We affirm in part, reverse in part, and remand for further proceedings.

I

Stewart was seriously injured on May 4, 1990, when, on duty as Chief of Police of Emerado, he was shot twice in the head by Dale Densmore while investigating an altercation involving Densmore. According to Densmore, he and a companion, Devin Johnson, began drinking at Johnny's Bar in Emerado at about 5:30 p.m. on May 4, and during that time, Johnny's Bar served him between 15 and 20 mixed drinks. Densmore and Johnson subsequently went to Larimore and stopped at two more bars, the Red Dog and LIA. According to Densmore, LIA served him one mixed drink, but Red Dog did not serve him any drinks. Densmore and Johnson ultimately returned to Johnny's Bar, where they were served additional drinks. An altercation ensued and, as Densmore was leaving, he brandished a gun. An employee at Johnny's Bar called the police, and Stewart confronted Densmore outside the bar. After a brief pursuit and struggle, Densmore shot Stewart twice in the head. Densmore subsequently pled guilty to attempted murder.

Stewarts brought this dram shop action against the defendants, alleging the defendants had all knowingly served alcoholic beverages to Densmore while he was obviously intoxicated. The defendants denied those allegations and alternatively asserted that Densmore's intentional criminal act was unforeseeable and was an intervening and superseding cause of the Stewarts' injuries.

The district court concluded that there were genuine issues of material fact about whether Johnny's Bar and LIA had knowingly served Densmore alcoholic beverages while he was obviously intoxicated, but that it was undisputed Red Dog had not served Densmore alcoholic beverages on May 4. The court further concluded

"that there is no material question of fact on the issue of causation, and the action of Densmore in committing the crime of attempted murder against the Plaintiff with the use of a handgun was a superseding, intervening cause of the injuries suffered by the Plaintiff, and that, as a matter of law, the conduct of Densmore was not foreseeable by the Defendants, requiring that the motion for summary judgment be granted."

Stewarts appealed. ¹

II

Under N.D.R.Civ.P. 56, summary judgment is appropriate if, viewing the evidence in the light most favorable to the party opposing the motion and giving that party the benefit of all favorable inferences which can reasonably be drawn from the evidence, there is no genuine dispute as to either the material facts or the inferences to be drawn from undisputed facts, or if only a question of law is involved. E.g., Osterman-Levitt v. MedQuest, Inc., 513 N.W.2d 70 (N.D.1994). In determining if a genuine issue of material fact exists, the court may examine the pleadings, depositions, admissions, affidavits, interrogatories, and inferences to be drawn therefrom. Miller Enterprises, Inc. v. Dog N' Cat Pet Centers of America, Inc., 447 N.W.2d 639 (N.D.1989). A movant for summary judgment has the initial burden of establishing the absence of any genuine issues of material fact. Sime v. Tvenge Associates Architects & Planners, P.C., 488 N.W.2d 606 (N.D.1992). However, "[a] party resisting a motion for summary judgment has the responsibility of presenting competent admissible evidence by affidavit or other comparable means, ... and, if appropriate, drawing the court's attention to evidence in the record ... raising a material factual issue, or from which the court may draw an inference creating a material factual issue." Binstock v. Tschider, 374 N.W.2d 81, 83 (N.D.1985), quoting First Nat'l Bank of Hettinger v. Clark, 332 N.W.2d 264, 267 (N.D.1983).

III

Section 5-01-06.1, N.D.C.C., authorizes "person[s] who [are] injured by any obviously intoxicated person" to bring a dram shop action against "any person who knowingly disposes, sells, barters, or gives away alcoholic beverages to ... [the] obviously intoxicated person." See Born v. Mayers et al., 514 N.W.2d 687 (N.D.1994) [N.D.C.C. § 5-01-06.1 creates a cause of action against a social host who disposes, sells, barters, or gives away alcoholic beverages].

Stewarts assert that they presented competent admissible evidence "by affidavit or other comparable means" to raise a genuine issue of material fact about whether Red Dog served alcoholic beverages to Densmore on May 4. We disagree.

In support of its motion for summary judgment, Red Dog relied upon Densmore's sworn affidavit, which stated that he

"did not drink anything at the Red Dog Saloon. I only walked through the Red Dog Saloon looking for Mr. Vageline. After meeting with Mr. Vageline, we then drove back to Johnny's Bar."

Red Dog also submitted a sworn statement of an employee, Leslie Cole, which stated

"Densmore and Devin Johnson did come into the bar that night, anywhere between 9:00 to 10:00 pm. They walked in the front door and stood and just looked around. I waited for them to walk up to the bar counter to see if they wanted anything, and they never did order anything, just stood there a bit more, then left. They never did return back to the Red Dog after that time. Note: I remember this so clearly, because they never did order anything."

Stewarts initially resisted the defendants' motion for summary judgment and requested a continuance to, among other things, obtain an affidavit from Johnson. The court continued the summary judgment hearing from May 24, 1993, to July 15, 1993. However, Stewarts did not submit an affidavit by Johnson and, instead, offered his June 25, 1993 unsworn statement, which said

"I traveled with Dale Densmore to the Red Dog Saloon in Larimore. We went to the Red Dog Saloon to meet with Pete Vageline and pay a bill. While at the Red Dog Saloon both myself and Dale Densmore consumed alcoholic beverages."

In Hadland v. Schroeder, 326 N.W.2d 709 (N.D.1982), we considered the use of unsworn and uncertified letters in the context of a motion for summary judgment. We recognized that courts may generally consider only materials which would be admissible at trial and that unsworn, uncertified, or otherwise inadmissible documents may be considered only if no timely objection is made. See Pfeil v. Rogers, 757 F.2d 850 (7th Cir.1985), cert. denied, 475 U.S. 1107, 106 S.Ct. 1513, 89 L.Ed.2d 912 (1986); Ramsay v. Cooper, 553 F.2d 237 (1st Cir.1977). See generally 10A Wright & Miller, Federal Practice and Procedure 2nd, § 2722 (1983); 6 Moore's Federal Practice, p 56.22 (1993). In Hadland, supra, we concluded that the district court properly considered unsworn and uncertified letters because the parties did not object to those documents.

In this case, Red Dog objected to consideration of Johnson's unsworn statement. During oral argument to this court, Stewarts' counsel acknowledged that Johnson's unsworn statement was the only evidence indicating Red Dog served alcoholic beverages to Densmore on May 4. ² Counsel also conceded that if Johnson's unsworn statement was false, Johnson could not be prosecuted for perjury. Stewarts nevertheless argue that Johnson's unsworn statement has similar reliability to an affidavit and qualifies as "other comparable means" of raising a factual issue under Binstock, supra, and Clark, supra. We disagree.

Johnson's unsworn statement is not a written declaration made under oath and therefore is not an affidavit under N.D.C.C. § 31-04-02. See Pfeil, supra. Stewarts did not present any compelling reason to justify the absence of an affidavit by Johnson, and, other than their initial request for a continuance, which was granted, they did not request additional time under N.D.R.Civ.P. 56(f), to present an affidavit by Johnson. Johnson's unsworn statement was not made under penalty of perjury and does not have the similar reliability of an affidavit. It does not qualify as "other comparable means" for raising a disputed factual issue. We hold that Johnson's unsworn statement is insufficient to raise a genuine issue of material fact about whether Red Dog served alcoholic beverages to Densmore on May 4. We affirm the summary judgment dismissal of Red Dog.

IV

Stewarts assert that, under the dram shop and comparative fault statutes, the district court erred in concluding, as a matter of law, that Densmore's intentional criminal act was a superseding, intervening cause which was unforeseeable to the defendants. Our analysis of this issue involves the interpretation of the dram shop and the comparative fault statutes.

In 1987, the Legislature amended our dram shop law, N.D.C.C. §§ 5-01-06.1 and 5-01-09, ³ and also enacted the comparative fault provisions in N.D.C.C. Chapter 32-03.2. ⁴ See ...