Zueger v. Carlson

• Decision Date: 11 January 1996
• Docket Number: No. 950205,950205
• Citation: 542 N.W.2d 92
• Parties: Lillian ZUEGER and LeRoy J. Kudrna, Plaintiffs and Appellants, v. Mark R. CARLSON, Defendant, and Bentley, Inc. d/b/a Boomers, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 92

542 N.W.2d 92

Lillian ZUEGER and LeRoy J. Kudrna, Plaintiffs and Appellants, v. Mark R. CARLSON, Defendant and Bentley, Inc. d/b/a Boomers, Defendant and Appellee.

Civ. No. 950205.

Supreme Court of North Dakota.

Jan. 11, 1996.

Scott K. Porsborg of Smith Bakke Hovland & Oppegard, Bismarck, for plaintiffs and appellants.

Brent J. Edison of Zuger Kirmis & Smith, Bismarck, for defendant and appellee.

SANDSTROM, Justice.

Lillian Zueger and LeRoy Kudrna appeal from a district court summary judgment dismissing their claims against Bentley, Inc., doing business as Boomers ("Boomers"). We reverse and remand for further proceedings, holding release of dram shop claims does not release all tort claims against a bar, and holding a bar owner has a duty to exercise reasonable care to prevent and stop assaults on its patrons.

I

On October 29, 1993, Zueger and Kudrna were injured in a fight at Boomers, a bar in Mandan, North Dakota. According to the complaint, Mark Carlson, an off-duty bouncer at Boomers, violently and without provocation attacked Zueger and Kudrna, causing serious and permanent injuries. Zueger and Kudrna assert Boomers failed to provide adequate security, and Boomers' employees and security personnel failed to come to their aid during the attack. Zueger and Kudrna further assert the assault was stopped only when other patrons finally restrained Carlson.

Boomers had two separate liability policies, a dram shop liability policy with Acceptance Insurance Company and a comprehensive general liability policy with Capital Indemnity Corporation. Zueger and Kudrna eventually settled their dram shop claim with Boomers and Acceptance Insurance for $10,000. The release specifically provided Zueger and Kudrna were releasing only their dram shop claims, and not their claims against Boomers "under Boomers' premises liability policy for any claims for negligent security, failure to provide adequate security, failure to stop an assault or any other premises liability claims."

Zueger and Kudrna subsequently brought this action on their remaining claims against Carlson and Boomers. Boomers moved for summary judgment, asserting the premises liability claims asserted were, in effect, dram shop claims by another name. The trial court concluded the dram shop statute, N.D.C.C. § 5-01-06.1, superseded all other forms of bar owner liability, and Zueger and Kudrna had failed to establish any common law duty of a bar owner to provide adequate security on its premises. The court ordered entry of summary judgment in favor of Boomers, and, after Zueger and Kudrna resolved their claims against Carlson, judgment was entered dismissing all claims against Boomers. Zueger and Kudrna appeal. ¹

The district court had jurisdiction under Art. VI, § 8, N.D. Const., and N.D.C.C. § 27-05-06. This Court has jurisdiction under Art. VI, § 6, N.D. Const., and N.D.C.C. §§ 28-27-01 and 28-27-02. The appeal was timely under N.D.R.App.P. 4(a). ²

II

Boomers contends summary judgment was appropriate because Zueger failed to present competent admissible evidence raising a genuine issue of material fact for trial. Boomers contends Zueger was required to present affidavits or comparable evidence supporting her factual claims that Boomers provided inadequate security and failed to come to her aid.

If a motion for summary judgment under N.D.R.Civ.P. 56(e) is made and supported, the opposing party may not rest upon mere allegations or denials in the pleadings, but must present admissible evidence establishing a genuine issue of material fact. Resolution Trust Corp. v. Gosbee, 536 N.W.2d 698, 700 (N.D.1995); Hummel v. Mid Dakota Clinic, P.C., 526 N.W.2d 704, 707 (N.D.1995). The moving party, however, has the initial burden of showing the absence of genuine issues of fact. American State Bank and Trust Co. v. Sorenson, 539 N.W.2d 59, 61 (N.D.1995); Resolution Trust Corp., supra, at 700. If the moving party fails to meet this initial burden, summary judgment is inappropriate even if the adverse party fails to respond with proof in opposition to the motion. Marsh v. Binstock, 462 N.W.2d 172, 174 (N.D.1990); Federal Land Bank of St. Paul v. Asbridge, 414 N.W.2d 596, 598 (N.D.1987); First State Bank of Casselton v. McConnell, 410 N.W.2d 139, 141 (N.D.1987).

In its motion for summary judgment, Boomers did not challenge the underlying factual basis for Zueger's claims. Rather, Boomers argued the release of the dram shop claims effectively released all claims against Boomers, and allowing Zueger to pursue separate premises liability claims would be an improper splitting of causes of action. Boomers argued, in essence, that, even if all facts alleged in the complaint were true, the release extinguished all claims for relief as a matter of law.

The degree of response required of a party opposing a motion for summary judgment is set by the scope of the motion. In this case, Boomers did not challenge the factual basis for Zueger's claims, but raised purely legal issues. Because Boomers did not meet its initial burden of establishing the absence of a genuine issue of material fact, Zueger was not required to present evidence supporting the underlying factual allegations of her claims.

III

Boomers asserts the dram shop act supersedes all common law liability of a bar owner, and therefore the release of Zueger's dram shop claims released Boomers from all potential liability.

The relevant dram shop statute provides in part:

"Every spouse, child, parent, guardian, employer, or other person who is injured by any obviously intoxicated person has a claim for relief for fault under section 32-03.2-02 against any person who knowingly disposes, sells, barters, or gives away alcoholic beverages to a person under twenty-one years of age, an incompetent, or an obviously intoxicated person, and if death ensues, the survivors of the decedent are entitled to damages defined in section 32-21-02."

N.D.C.C. § 5-01-06.1. Boomers argues this statute supersedes all common law liability of a bar owner, under N.D.C.C. § 1-01-06:

"Code excludes common law. In this state there is no common law in any case where the law is declared by the code."

We have recognized the dram shop laws are sui generis. Stewart v. Ryan, 520 N.W.2d 39, 45 (N.D.1994); Day v. General Motors Corp., 345 N.W.2d 349, 355 (N.D.1984). The legislature intended to create an entirely new form of liability for wrongful sale of alcohol:

" 'The liability created by the Civil Damage Act has no relation to any common law liability, or to any theory of tort. It was the intention of the legislature to create liability in a class of cases where there was no liability under the common law.' "

Aanenson v. Bastien, 438 N.W.2d 151, 153 (N.D.1989) (quoting Iszler v. Jorda, 80 N.W.2d 665, 667 (N.D.1957)).

Because the legislature intended to create a new, distinct cause of action unrelated to any recognized by the common law, it is axiomatic that the legislature did not intend thereby to supersede unrelated premises liability actions against bar owners. In similarly concluding dram shop statutes do not supersede the common law premises liability of bar owners, the Supreme Court of Michigan reasoned:

"The common law duty of a liquor establishment to maintain a safe place of business for its customers is the same duty any business owes to those it invites upon its premises. The dramshop act was not intended to affect that duty. Dramshop acts were passed because under the common law it was not a tort to sell or furnish intoxicating liquor to an ordinary able-bodied man, even though as a result of his becoming intoxicated injury resulted to himself or to others. Their purpose was to fill a void in the law, not to remove the well-recognized duty of a tavern keeper to exercise due care for the welfare and safety of invited patrons."

Manuel v. Weitzman, 386 Mich. 157, 191 N.W.2d 474, 476 (1971) (footnote omitted). See also Mt. Hope Inn v. Travelers Indemnity Co., 157 N.J.Super. 431, 384 A.2d 1159, 1162-1163 (1978).

Nor does the dram shop act purport, either expressly or implicitly, to cover the entire field of bar owner liability, which might provide a basis for superseding the common law. See Board of County Commissioners v. Peterson Excavating, Inc., 406 N.W.2d 674, 675-676 (N.D.1987). Under these circumstances, we conclude the dram shop act does not supersede premises-based liability of a bar owner.

Boomers argues our decision in Stewart requires a different result. In Stewart, we considered the applicability of the comparative fault statutes to dram shop claims, in light of 1987 statutory amendments.

Boomers relies upon the following language in Stewart to support its assertion that, under the 1987 amendments, the dram shop act includes all forms of liability, including negligence and willful conduct, and supersedes common law liability of bar owners:

"When the 1987 legislation is harmonized to give meaning to each word and phrase and to effectuate those remedial purposes, it plainly grants persons injured by an obviously intoxicated person a dram shop claim for relief under the comparative fault guidelines against persons who knowingly sell alcoholic beverages to the intoxicated person while that person is obviously intoxicated. N.D.C.C. § 5-01-06.1. The dram shop amendments specifically incorporate the requirement of N.D.C.C. § 32-03.2-02, for allocation of fault among all persons 'who contributed to the injury.' Sections 32-03.2-01 and 32-03.2-02, N.D.C.C., expressly define 'fault' in terms of 'negligence,' 'reckless or willful conduct,' and 'dram shop liability.' That definition indicates that negligence remains a separate theory from dram shop liability, and contemplates that negligence, willful conduct, and dram shop liability are all integrated for the allocation of fault among those 'who contributed to the injury.' ... The Legislature has therefore recognized that a person's willful or criminal conduct...