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Henson v. Uptown Drink, LLC

Court of Appeals of Minnesota

December 26, 2017

David Lee Henson and Noah A. Cashman, co-trustees for the Estate of Maxwell David Henson; et al., Appellants,
v.
Uptown Drink, LLC, Respondent, Jason Alan Sunby, et al., Defendants,
v.
Assurance Company of America, intervenor, Respondent.

         Hennepin County District Court File No. 27-CV-12-10634

          Bernie M. Dusich, Ryan T. Gott, Sieben Polk, P.A., Hastings, Minnesota (for appellants)

          Steven E. Tomsche, Beth L. LaCanne, Tomsche, Sonnesyn & Tomsche, P.A., Golden Valley, Minnesota (for respondent Uptown Drink)

          Considered and decided by Jesson, Presiding Judge; Kirk, Judge; and Florey, Judge.

         SYLLABUS

         I. Primary assumption of the risk does not bar, as a matter of law, a negligent-innkeeper claim if the evidence is inconclusive on whether the injured party had actual knowledge of the particular risks associated with helping to remove an intoxicated patron from a premises, and there is evidence that the innkeeper enlarged those risks.

         II. For purposes of a dram-shop claim, proximate cause is not lacking, as a matter of law, despite the injured party assuming risk in helping to remove an intoxicated patron from a premises, so long as there is sufficient evidence that the intoxication was a substantial factor in causing the injury, and a direct link exists between the intoxication and the injurious act.

          OPINION

          FLOREY, Judge.

         Appellants brought a wrongful-death action. The district court granted summary judgment for respondent thereby disposing of all of appellants' claims. Appellants argue that the district court erred by determining that the doctrine of primary assumption of the risk precluded innkeeper liability; determining that the decedent's voluntary intervention in the removal of an intoxicated patron precluded liability under a dram-shop claim; and failing to consider the emergency, rescue, and continuing-duty-of-care doctrines. We reverse and remand.

         FACTS

         This case arises from the tragic death of Maxwell Henson, who was fatally injured trying to help an employee of respondent Uptown Drink, LLC in ejecting an aggressive patron. The events leading to that incident were set in motion on March 23, 2011, when Jason Sunby and Nicholas Anderson met up at a restaurant. Sunby and Anderson believe they consumed some beer at the restaurant, and prior to arriving, Anderson had approximately two beers at home.

         Sunby and Anderson left the restaurant and arrived at Uptown Drink between 7:00 and 7:30 p.m. Sunby does not remember anything other than being at the restaurant and then waking up in jail the following morning. Sunby told the arresting officer that he had 12 or 14 drinks that night. Anderson stated he had between 6 and 10 beers and a couple shots at Uptown Drink. Bartender Jordan Shaw was working at Uptown Drink and indicated that Anderson and Sunby came to the bar, and he served them one to two beers.

         There is a surveillance video of Anderson and Sunby at Uptown Drink, and from looking at the video, Anderson described Sunby as being overly intoxicated because Sunby was being stubborn and stumbling. Anderson stated that he was intoxicated on the night in question and became more intoxicated during his time at Uptown Drink. Anderson stated that he felt sober when he entered Uptown Drink and that Sunby was his normal self when he came into Uptown Drink.

         Appellants, the estate and relatives of Henson, retained experts in toxicology and pharmacology. Based upon the description of the amount of alcohol consumed by Sunby and Anderson, the experts reported that Sunby would have had a blood alcohol concentration (BAC) in the range of 0.24 to 0.30 g/dL at approximately 9:37 p.m. on March 23, 2011, the time of the incident. The experts reported that Anderson would have had a BAC in the range of 0.25 to 0.30 g/dL at the time of the incident, and both individuals would have been severely impaired. The experts described the serious impairment of reasoning and judgment that would have occurred, exaggerated emotional states resulting in aggression and violent behavior, impaired balance, muscular incoordination, disorientation and mental confusion, decreased inhibitions, and decreased pain sensation. The experts further indicated that both Anderson and Sunby would have had a BAC in the range of 0.23 to 0.29 g/dL when served their respective last alcoholic beverages.

         In a surveillance video, Sunby and Anderson can be seen drinking shots at 9:21 p.m., and Sunby can be seen drinking another shot at 9:26 p.m. Through much of the video footage, Sunby and Anderson were drinking from glasses of beer. At 9:33 p.m., two individuals who were talking with Sunby moved, and at around 9:34 p.m., Shaw took a drink from Sunby. At around 9:35 p.m., Shaw came to the front of the bar. At around 9:36 p.m., Anderson returned to the bar while talking with the manager, Frank Thalacker. At 9:37 p.m., Sunby started to put his jacket on, while wobbling and stumbling, and Anderson began dancing. At around 9:38 p.m., Sunby threw a punch at Thalacker, others came into the fray, and Anderson then jumped Thalacker from behind and put him in a headlock. Henson rushed to the aid of Thalacker and peeled Anderson off of Thalacker.

         Thereafter, the video shows Anderson being escorted out of the establishment with Henson on one side and Thalacker on the other. During this time, Anderson was resisting and fighting Thalacker. Once they got out the doors onto a step, someone fell and dragged the others down. In the process, Henson fell and hit his head. He suffered a traumatic brain injury and later died.

         Appellants filed suit alleging that Uptown Drink was negligent (negligent-innkeeper claim) and violated Minn. Stat. § 340A.502 (2016) by providing liquor to an obviously intoxicated person (dram-shop claim).[1] Appellants also sued Sunby and ...


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