Osborne v. Twin Town Bowl, Inc.

730 N.W.2d 307, 2007 Minn. App. LEXIS 52, 2007 WL 1191702

• Court: Court of Appeals of Minnesota
• Decided: April 24, 2007
• Docket: A06-1007
• Status: Published

Opinions

OPINION

TOUSSAINT, Chief Judge.

In this civil-damage action, appellants Erin J. Osborne, individually and as parent and natural guardian of Alexia Ray Osborne Riley, Michael R. Riley Sr., Marie A. Riley, and Kelly M. Riley challenge the summary judgment entered in favor of respondent Twin Town Bowl, Inc. d/b/a Jerry Dutler Bowl on the issue of proximate cause. Because the undisputed facts do not support a proximate-causal relationship between the decedent’s intoxication and his drowning, we affirm.

FACTS

After drinking with friends, Michael Riley Jr. left Jerry Dutler Bowl. Shortly thereafter, about 1:30 a.m., on April 20, 2001, a state trooper clocked Riley driving 74 miles per hour in a 50-mile-per-hour zone. Based on the radar reading, the trooper turned around, speeded up, and activated his squad car’s emergency lights and siren. He followed as Riley took an exit ramp, maneuvered as if to avoid the trooper, took a right turn, drove on the shoulder, and pulled over on a bridge across the Minnesota River.

When the trooper approached the vehicle and Riley opened the window, the trooper smelled alcohol. Riley failed a variety of field sobriety tests; a preliminary breath test indicated his alcohol concentration was .18.

The trooper informed Riley that he was going to place him under arrest for driving while intoxicated. When he turned his back on Riley to put the breath-test equipment back into his patrol ear, the trooper heard Riley say, “I’m out of here.” The trooper turned around and saw Riley on the bridge barrier. The trooper yelled, “No,” but Riley jumped. The parties agree that Riley jumped to escape arrest. The river was swollen and far above flood levels; Riley’s body was recovered several months later.

Appellants are Riley’s daughter, girlfriend, parents, and sister. Their civil-damage complaint alleges that respondent caused Riley’s death. Appellants obtained a postmortem report by psychologist George V. Komaridis, Ph.D., that concluded that Riley’s inebriation played “a substantial part in bringing about his decision to jump.” Respondent’s motion to dismiss the complaint for lack of causation was denied, but, after additional discovery, its motion for summary judgment on the causation issue was granted.

ISSUE

Did the district court err in ruling as a matter of law that the decedent’s intoxication was not a proximate cause of his drowning?

ANALYSIS

“On appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact, and (2) whether the [district] court[ ] erred in [its] application of the law.” State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990).

A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law. On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.

Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993) (citation omitted). When the district court grants summary judgment based on the application of a statute to undisputed facts, the result is a legal con-elusion, reviewed de novo by the appellate court. Lefto v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 856 (Minn.1998).

The statute at issue here is the Minnesota Civil Damage Act, which provides:

A spouse, child, parent, guardian, employer, or other person injured in person, property, or means of support, or who incurs other pecuniary loss by an intoxicated person or by the intoxication of another person, has a right of action in the person’s own name for all damages sustained against a person who caused the intoxication of that person by illegally selling alcoholic beverages.

Minn.Stat. § 340A.801, subd. 1 (2006). To state a claim under the Act, a plaintiff must prove that the intoxication was a proximate cause of the plaintiffs injuries. Hartwig v. Loyal Order of Moose, Brainerd Lodge No. 1246, 253 Minn. 347, 363, 91 N.W.2d 794, 806 (1958). A “direct causal relationship between the intoxication and the injury” is required. Kryzer v. Champlin Am. Legion No. 600, 494 N.W.2d 35, 36 (Minn.1992).

The sole issue before the district court and this court on appeal is whether there is sufficient evidence of proximate cause for the action to survive summary judgment. Although proximate cause generally is a question of fact for the jury, “where reasonable minds can arrive at only one conclusion,” proximate cause becomes a question of law and may be disposed of by summary judgment. Lubbers v. Anderson, 539 N.W.2d 398, 402 (Minn.1995).

Kryzer is the controlling easelaw on the issue of proximate cause in a civil-damage action.¹ In Kryzer, an intoxicated person injured her wrist while she was being removed from a bar by the bar’s employee. 494 N.W.2d at 35. The supreme court reinstated the district court’s judgment of dismissal of the action based on the lack of a causal connection between the person’s intoxication and her broken wrist. The Kryzer court stated that the person’s “intoxication may have been the occasion for her ejection from the legion club, but it did not cause either her injury or that sustained by the plaintiff [her husband].” Id. at 37. The Kryzer court reiterated its rejection of a “but for” test to show proximate cause between the intoxication and the injury. Id.

In civil-damage cases, courts must distinguish “between the occasion and the cause of an injury.” Id. For its holding, the Kryzer court relied on Nelson v. Chicago, M. & St. P. Ry. Co., 30 Minn. 74, 14 N.W. 360 (1882), cited with approval in Kryzer, 494 N.W.2d at 37. There, a railroad’s failure to erect a fence may have been the “occasion” for a chain of events leading to an escaped mule running along an unfenced track and eventually breaking its leg. But the mule’s act of stepping into a hole, not the railroad’s failure to fence, was the direct and natural cause of the mule’s broken leg. Nelson, 30 Minn. at 76, 14 N.W. at 361. Similarly, in civil-damage actions, a patron’s intoxication must be more than the occasion for the injury, it must be the direct cause of the injury.² Kryzer, 494 N.W.2d at 35. Accordingly, intoxication was not the cause of injuries when an overserved, intoxicated patron encouraged a third party to fight another, who was injured in the fight, Crea v. Bly, 298 N.W.2d 66 (Minn.1980), cited with approval in Kryzer, 494 N.W.2d at 38, or when an overserved, intoxicated person assaulted the passenger in his car, who then was injured while exiting the vehicle to avoid the assault. Kunza v. Pantze, 531 N.W.2d 839 (Minn.1995) (summarily reinstating summary judgment entered in favor of bar on issue of proximate cause and citing Kryzer), rev’g 527 N.W.2d 846 (Minn.App.1995).

Appellants argue that Riley’s intoxication directly caused his death. The district court concluded, as a matter of law, it did not. We agree with the district court.

Events occurring between Riley’s intoxication at Jerry Dutler Bowl and his drowning preclude the conclusion that the intoxication caused the drowning. First, Riley drove 24 miles over the speed limit and was stopped for speeding. No evidence indicates that Riley’s speed-limit violation or that the trooper’s decision to stop Riley for speeding was directly caused by the intoxication. In fact, the trooper stated that Riley’s speed was the only reason he stopped him. Only after these events, did the trooper smell alcohol, test Riley, and then advise him he was under arrest. The parties do not dispute that Riley jumped off the bridge to “escape arrest.”³ Absent evidence that Riley’s intoxication was the reason for his speeding, the trooper’s stop, or Riley’s fleeing arrest, these actions constitute breaks in the chain of causation between Riley’s intoxication and his drowning.

No genuine issue for trial exists “[wjhere the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997) (alteration in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)). “[T]he party resisting summary judgment must do more than rest on mere averments.” Id. at 71. “[W]hen the nonmoving party bears the burden of proof on an element essential to the nonmoving party’s case, the nonmoving party must make a showing sufficient to establish that essential element.” Id.; see also Schroeder v. St. Louis County, 708 N.W.2d 497, 507 (Minn.2006) (clarifying that “summary judgment is inappropriate if the nonmov-ing party has the burden of proof on an issue and presents sufficient evidence to permit reasonable persons to draw different conclusions” (emphasis in original)); Nicollet Restoration v. St. Paul, 533 N.W.2d 845, 848 (Minn.1995) (stating that nonmoving party obligated to present “specific admissible facts” on summary judgment). “[Wjhen determining whether a genuine issue of material fact for trial exists, the court is not required to ignore its conclusion that a particular piece of evidence may have no probative value, such that reasonable persons could not draw different conclusions from the evidence presented.” DLH, Inc., 566 N.W.2d at 70.

In response to respondent’s motion for summary judgment, appellants submitted a psychologist’s report for the proposition that Riley’s intoxication was the cause of his drowning. Without ruling on the report’s admissibility, the court stated in a footnote that the report was of “minimal evidentiary value.”⁴ The court noted that the report was “dated three and a half years after Riley’s death, and was based on a review of medical and legal records and statements of Riley’s family and friends.” None of the report’s supporting records or statements are part of the record, and the report did not state that the psychologist had ever seen or treated Riley.⁵

Generally, “unless otherwise agreed by the parties, expert opinions are to be presented through expert testimony.” Kelly v. Ellefson, 712 N.W.2d 759, 771 (Minn.2006) (affirming trial court’s exclusion of toxicologist’s affidavit at trial); see Minn. R. Evid. 702 (allowing testimony, not affidavit, of expert’s “specialized knowledge”). This requirement avoids the laundering of inadmissible hearsay evidence through an expert’s report. Kelly, 712 N.W.2d at 771 (citing State v. DeShay, 669 N.W.2d 878, 886 (Minn.2003)). Furthermore, expert psychiatric opinion on the effects of mental illness and intoxication is generally inadmissible because it is within the common knowledge of laypeople. State v. Griese, 565 N.W.2d 419, 425 (Minn.1997) (reviewing district-court decision to limit scope of expert-witness testimony about mental condition of defendant charged with first-degree murder). The facts of intoxication and alcohol concentration may be admissible, but not expert testimony on how intoxication may have impaired a party’s capacity to form specific intent. Id.

The district court properly assessed the value of the expert report submitted to defeat respondent’s summary-judgment motion. As evidence offered to show the effects of Riley’s intoxication on his decision to jump, the report had minimal evi-dentiary value. Absent evidence permitting reasonable persons to conclude that Riley’s intoxication caused his drowning, the court properly granted summary judgment for respondent.

DECISION

The district court did not err in granting summary judgment in appellants’ civil-damage action on the essential element of proximate cause when the record contained insufficient probative evidence of a direct causal relationship between the decedent’s intoxication and his drowning.

Affirmed.

1 . Appellants apply language from Ponticas v. K.M.S. Investments, Inc., 331 N.W.2d 907, 915 (Minn. 1983) (concluding that owner and operator of apartment building were negligent in failing to investigate apartment manager and failure to investigate was proximate cause of tenant’s sexual assault). Ponticas is not a civil-damage action and, although decided a decade before Kryzer, was not cited in Kryzer.

2 . Appellants argue that the district court failed to consider whether Riley’s decision to jump "was infected by the level of intoxication he achieved at Twin Town Bowl." Caselaw under the Civil Damage Act does not require such an inquiry. The sole issue is whether the intoxication proximately caused the injury-

3 . Appellants contend that it was irrelevant that Riley "jumped to escape, not to commit suicide.” The district court's acceptance of this undisputed fact is supported by the record. The reason for the jump is also relevant to the proximate cause inquiry.

4 . Although, in their primary brief, appellants question the propriety of the district court's statement, they claim in their reply brief that respondent cannot address the statement without a notice of review. The district court's statement did not constitute a ruling on the admissibility of the report. As part of its reasoning in its decision to grant summary judgment, the statement by the district court is properly considered by this court without a notice of review.

5 . Appellants’ counsel argued at the summary-judgment hearing that Dr. Komaridis once saw Riley professionally, but this fact does not appear in the record. The report itself states only that Riley was seen at the same clinic 11 years earlier.