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Henson v. Uptown Drink, LLC

Supreme Court of Minnesota

January 23, 2019

David Lee Henson, et al., Respondents,
v.
Uptown Drink, LLC, Appellant, Assurance Company of America, Respondent.

          Court of Appeals Office of Appellate Courts

          Bernie M. Dusich, Ryan T. Gott, Sieben Polk, P.A., Hastings, Minnesota, for respondents David Lee Henson, et al.

          Steven E. Tomsche, Beth L. LaCanne, Tomsche, Sonnesyn, & Tomsche, P.A., Golden Valley, Minnesota, for appellant.

          Matthew J. Barber, James S. Ballentine, Schwebel, Goetz & Sieben, P.A., Minneapolis, Minnesota, for amicus curiae Minnesota Association for Justice.

          Mark A. Solheim, Kevin T. McCarthy, Larson King, LLP, Saint Paul, Minnesota, for amicus curiae Minnesota Defense Lawyers Association.

         SYLLABUS

         1. The doctrine of implied primary assumption of risk does not apply to a claim in negligence for injuries arising out of the operation or patronage of a bar.

         2. On a claim of innkeeper negligence, there was enough evidence on the element of foreseeability to create a disputed issue of material fact or disputed reasonable inferences from undisputed facts, making summary judgment improper.

         3. On a claim of violation of the Dram Shop Act, Minn. Stat. §§ 340A.801- .802 (2018), there was enough evidence on the element of proximate cause to create a disputed issue of material fact or disputed reasonable inferences from undisputed facts, making summary judgment improper.

         Affirmed.

          OPINION

          LILLEHAUG, JUSTICE.

         This case arises from the death of an off-duty bar employee who was fatally injured while helping other bar employees eject an aggressive patron from a Minneapolis bar. The employee's family sued the bar for the death, pleading innkeeper-negligence and dramshop claims. The district court granted the bar's motion for summary judgment. On the innkeeper-negligence claim, the court determined that the bar owed no duty based on the doctrine of implied primary assumption of risk. On the dram-shop claim, the court decided as a matter of law that the claim failed on the element of proximate cause. The court of appeals reversed and remanded on both claims. We affirm.

         FACTS

         Maxwell Henson, an off-duty employee of Uptown Drink, a Minneapolis bar, was fatally injured on the evening of March 23, 2011. The sequence of events that led to his death began when two friends, Nicholas Anderson and Jason Sunby, met for drinks at a restaurant near Uptown Drink. Anderson had been drinking at home before he met Sunby. Both men believe they drank alcohol during their hour and a half at the restaurant. The pair left the restaurant to continue drinking at Uptown Drink.

         Over the next two hours, Anderson, by his own estimate, drank between 6 and 10 glasses of beer, along with a couple of shots of hard liquor. Sunby admitted having 12 or 14 drinks that evening.

         The record contains a video from Uptown Drink's surveillance camera covering the approximately 20 minutes before Henson's fatal injury. The events shown in the video are best described in the present tense.

         The video shows Anderson and Sunby drinking frequently from what appear to be glasses of beer and several shot glasses of hard liquor. At 9:24 p.m., Anderson leaves camera view. A server, Natalie Cooper, and an off-duty coworker appear to have a discussion about Anderson and Sunby. Apparently, Anderson sat down at a table with two women he did not know.

         In the 11 minutes while Anderson is off camera, Sunby appears to take a shot of liquor, leans forward onto the bar, and struggles for several minutes to keep his balance. At 9:29 p.m., he slips off the bar stool entirely. After steadying himself, Sunby turns and speaks to patrons seated at the bar to his left. They stand up and move away. One of the patrons stated in an affidavit that Sunby "was obviously drunk, he was slurring his speech, he was loud, rude, and was swearing[, ] and by his tone it was our ...


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