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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

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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 impression [Sunby] was

trying to incite an altercation.” The patron detected “a racial overtone to what [Sunby] was

saying.”

After moving, a patron signals to bartender Jordan Shaw, who had stepped away,

and tells Shaw “that [Sunby] needs to leave” because “he is drunk and out of line.” At

9:34 p.m., Shaw takes a glass away from Sunby and tells him to leave. As Shaw is stepping

out from behind the bar, there is some physical jostling between Sunby and the patrons

until Shaw reaches the group.

At 9:36 p.m., Anderson returns to view, escorted by Frank Thalacker, the general

manager of Uptown Drink. Server Cooper had asked Thalacker to intervene with

Anderson, because she “thought the women looked uncomfortable” when Anderson sat

down at their table. Thalacker asked Anderson to leave the two women alone.

For the next 90 seconds Anderson and Sunby talk while Sunby struggles to put on

his coat. Both men appear to be swaying.

At 9:37:45 p.m., as Anderson moves toward the exit, Sunby attempts to punch

Thalacker. He misses and tumbles into the bar. Thalacker gets Sunby on his feet and

bartender Shaw grabs Sunby from behind. At the same time, Anderson grabs Thalacker

from behind. As Thalacker staggers backward, Maxwell Henson, an off-duty bar

employee, appears and pulls Anderson off of Thalacker. Henson and Thalacker pull

Anderson toward the exit while Shaw, after gaining control of Sunby, follows with Sunby.

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Approximately 30 seconds elapse between Sunby’s punch and the time Sunby and

Anderson exit the bar.

Off camera, as Thalacker, Henson, and Anderson reached the front door of the bar,

all three tripped and fell onto the sidewalk. Henson hit his head, was knocked unconscious,

and was transported to Hennepin County Medical Center. He suffered a traumatic brain

injury and never regained consciousness. He died six days later.

In February 2012, Henson’s family1 sued Uptown Drink, LLC, for innkeeper

negligence and violation of the Dram Shop Act, Minn. Stat. §§ 340A.801–.802 (2018).

Uptown Drink moved for summary judgment, arguing that the lawsuit was barred by the

Workers’ Compensation Act. After a workers’ compensation judge determined that

Henson’s death arose out of and in the course of his employment at Uptown Drink, the

district court granted Uptown Drink’s summary-judgment motion. Henson v. Uptown

Drink, LLC, No. A15-0493, 2015 WL 9264078, at *2 (Minn. App. Dec. 21, 2015), rev.

denied (Minn. Mar. 15, 2016). The court of appeals reversed the district court, holding that

the evidence was insufficient to establish that Henson’s death arose out of and in the course

of his employment. Id. at *8.

On remand to the district court, Uptown Drink again moved for summary judgment

on the innkeeper-negligence and dram-shop claims. The district court granted Uptown



1 The innkeeper-negligence claim was brought by Maxwell Henson’s father, David Henson, and Noah Cashman, as co-trustees for Henson’s estate. The dram-shop claim was brought by members of Henson’s family in their personal capacities, as required by Minn. Stat. § 340A.801, subd. 1.



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Drink’s motion, deciding sua sponte that, although the innkeeper-negligence claim

presented “close questions of fact,” the doctrine of implied primary assumption of risk

applied as a complete bar to recovery. Henson v. Uptown Drink, LLC, No. 27-CV-12

10634, 2017 WL 4220906, at *5 (Henn. Cty. Dist. Ct. filed Feb. 8, 2017). The district

court also decided that the dram-shop claim failed on the element of proximate cause,

because Anderson’s and Sunby’s intoxication was “too remote” to be the cause of Henson’s

injuries. Id. at *4. After supplemental briefing on the applicability of the assumption-of

risk doctrine, the district court denied Henson’s family’s motion to reconsider.

In December 2017, the court of appeals again reversed and remanded to the district

court. Henson v. Uptown Drink, LLC, 906 N.W.2d 533, 536 (Minn. App. 2017). The court

of appeals held that the district court had improperly applied the doctrine of implied

primary assumption of risk “[b]ecause reasonable persons could reach different

conclusions on whether Henson had actual knowledge of the particular risks presented.”

Id. at 540. Even if the doctrine did apply, said the court, there was sufficient evidence for

a reasonable fact-finder to conclude that Uptown Drink had enlarged the risk. Id. The

court also reversed the grant of summary judgment on the proximate cause element of the

dram-shop claim, reasoning that “[i]ntoxication need only be a substantial factor in

bringing about the injury.” Id. at 543. “Viewed in a light most favorable to [Henson’s

family], there is sufficient evidence that intoxication was a substantial factor in causing

Henson’s injury, and there is sufficient evidence of a direct link between that intoxication

and the injury.” Id. We granted review as to both claims.



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ANALYSIS This is an appeal from a grant of summary judgment, which “is appropriate when there is no genuine issue of material fact and a party is entitled to judgment as a matter of

law.” Senogles v. Carlson, 902 N.W.2d 38, 42 (Minn. 2017). We review a grant of

summary judgment de novo. Commerce Bank v. W. Bend Mut. Ins. Co., 870 N.W.2d 770,

773 (Minn. 2015). When conducting this review, “we view the evidence in the light most

favorable to the nonmoving party . . . and resolve all doubts and factual inferences against

the moving parties.” Rochester City Lines Co. v. City of Rochester, 868 N.W.2d 655, 661

(Minn. 2015). Summary judgment is “inappropriate when reasonable persons might draw

different conclusions from the evidence presented.” Osborne v. Twin Town Bowl, Inc.,

749 N.W.2d 367, 371 (Minn. 2008) (citation omitted) (internal quotation marks omitted).

Henson’s family pleads two claims. The first is innkeeper negligence. There are

four elements to a claim of innkeeper negligence: (1) notice of the offending party’s

“vicious or dangerous propensities” by “some act or threat,” (2) adequate opportunity for

the innkeeper to protect the injured patron, (3) failure on the part of the innkeeper to take

reasonable steps to do so, and (4) foreseeable injury. Boone v. Martinez, 567 N.W.2d 508,

510 (Minn. 1997).

Henson’s family’s second claim is under the Civil Damages Act, Minn. Stat.

§ 340A.801–.802 (2018), commonly referred to as the Dram Shop Act. It creates a right

of action for a plaintiff “injured in person, property, or means of support, or who incurs

other pecuniary loss by an intoxicated person.” Id., subd. 1. The purposes of this act are

“to punish an offending vendor and deter others from making illegal sales of liquor” and

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“to compensate those who would under ordinary negligence or other tort principles obtain

no recovery for their injuries.” Randall v. Vill. of Excelsior, 103 N.W.2d 131, 134 (Minn.

1960).

To prove a dram-shop claim, a plaintiff “must first prove that the sale of alcohol

was illegal under Minn. Stat. ch. 340A.” Osborne, 749 N.W.2d at 372. The plaintiff

“ ‘must show by competent proof’ ” that the illegal sale of alcohol caused or contributed

to the intoxication and “ ‘was a proximate cause of the [plaintiff’s] injuries.’ ” Kryzer v.

Champlin Am. Legion No. 600, 494 N.W.2d 35, 36–37 (Minn. 1992) (quoting Hartwig v.

Loyal Order of Moose, Brainerd Lodge, 91 N.W.2d 794, 801 (Minn. 1958)).

I.

We start with the innkeeper-negligence claim. We must first consider whether the

claim is barred because Henson impliedly assumed the risk of injury.

Primary assumption of risk is a common-law doctrine that “completely bars a

plaintiff’s claim because it negates the defendant’s duty of care to the plaintiff.” Daly v.

McFarland, 812 N.W.2d 113, 119 (Minn. 2012). It “arises ‘only where parties have

voluntarily entered a relationship in which plaintiff assumes well-known, incidental

risks.’ ” Bjerke v. Johnson, 742 N.W.2d 660, 669 (Minn. 2007) (quoting Olson v. Hansen,

216 N.W.2d 124, 127 (Minn. 1974)). Primary assumption may be express or implied. See,

e.g., Armstrong v. Mailand, 284 N.W.2d 343, 351 (Minn. 1979).

In this case, neither party argues that there was an express relationship between Max

Henson and Uptown Drink regarding bar security. Thus, the issue is whether the doctrine

of implied primary assumption of risk applies. This is the first case in which we have been

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asked to extend the doctrine to foreclose claims arising out of the operation and patronage

of bars. We decline to do so.

We have said that “[t]he doctrine of assumption of risk is not favored, and should

be limited rather than extended.” Suess v. Arrowhead Steel Prods. Co., 230 N.W. 125, 126

(Minn. 1930). “The classes of cases involving an implied primary assumption of risk are

not many . . . .” Springrose v. Willmore, 192 N.W.2d 826, 827 (Minn. 1971).

Since Springrose, we have limited the doctrine “to [only] certain types of

circumstances,” largely in the arena of “participants and spectators of inherently dangerous

sports.” Daly, 812 N.W.2d at 120; see Wagner v. Thomas J. Obert Enters., 396 N.W.2d

223, 226 (Minn. 1986) (“One of the few instances where primary assumption of the risk

applies is in cases involving patrons of inherently dangerous sporting events . . . .”) As the

court of appeals correctly observed in Schneider ex rel. Schneider v. Erickson, “Minnesota

courts rarely apply primary assumption of the risk, and have found that its application is

only appropriate under limited circumstances.” 654 N.W.2d 144, 149 (Minn. App. 2002).

In recent years we have been invited to extend implied primary assumption of risk

to new areas and have declined to do so. See, e.g., Daly, 812 N.W.2d at 120–21 (declining

to relieve the defendant of his duty to operate his snowmobile reasonably by extending the

doctrine to recreational snowmobiling). And today we have declined to extend the doctrine

to recreational downhill skiing and snowboarding. Soderberg v. Anderson, ___ N.W.2d

___, ___ (Minn. Jan. 23, 2019).

We see no good reason to extend the doctrine to preclude liability for injuries arising

out of the operation and patronage of bars. Although the service and consumption of

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alcohol can most certainly lead to incidents such as the one here, we have never considered

operating and patronizing bars to be inherently dangerous activities. The operation and

patronage of bars is not—and should not be—a contact sport. To the contrary, our

precedent is clear that bar owners, as do all innkeepers, have a duty of care. As we have

said, “Tavern owners in Minnesota have the duty to exercise reasonable care under the

circumstances to protect their patrons from injury.” Alholm v. Wilt, 394 N.W.2d 488, 490

(Minn. 1986); see also, e.g., Swanson v. Dugout, Inc., 98 N.W.2d 213, 215 (Minn. 1959)

(explaining the duty of an “operator of an establishment where beer and liquor are sold”);

Priewe v. Bartz, 83 N.W.2d 116, 119 (Minn. 1957) (expressing “no doubt” that a tavern

operator “owed a duty to those coming upon his premises”); Windorski v. Doyle,

18 N.W.2d 142, 145 (Minn. 1945) (stating the “general” rule that a bar owner “was

required to use reasonable care to protect its guests and patrons”). That is not to say that a

bar owner’s liability is unlimited; the four well-established elements of innkeeper

negligence—especially foreseeability—sufficiently mark the duty of innkeepers to prevent

injuries.

Our decision not to extend the doctrine of implied primary assumption of risk to the

operation and patronage of bars makes it unnecessary for us to reach two related issues

decided by the court of appeals: whether Henson voluntarily assumed the risk of injury

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and whether Uptown Drink enlarged the risk.2 Instead, we turn to an issue that is no

stranger to us: the element of foreseeability in the context of barroom brawls.

II.

Uptown Drink contends that, as a matter of law, it is not liable in negligence because

Henson’s death was not foreseeable. Our precedent has announced no categorical rule

governing which bar injuries are foreseeable and which are not; rather, our holdings are

heavily fact dependent.

For example, in Boone, we relied on the defendant’s testimony that “he deliberately

took [the plaintiff] by surprise in his initial assault,” on witness testimony that “the fight

broke out suddenly and without any warning,” and on the bar employees’ testimony that

“by the time they arrived at the scene of the fight, it already had been broken up.”

567 N.W.2d at 511. We held that “the fight was sudden and unforeseeable” and, therefore,

the bar was not liable. Id.

Similarly, in Devine v. McLain, 306 N.W.2d 827 (Minn. 1981), we held that, based

on specific facts, it was unforeseeable that Dale Devine would be shot by Darlene McLain.

Id. at 830–31. McLain was a new resident in the locality, she had never been to the bar

before, and “there was nothing, except the fight that broke out between the McLains and



2 The court of appeals, relying on its precedent of Rusciano v. State Farm Mutual Automobile Insurance Co., 445 N.W.2d 271 (Minn. App. 1989), held in the alternative that there was sufficient evidence to preclude application of implied primary assumption of risk because “Uptown Drink, by providing alcohol to an already intoxicated Anderson and allowing Henson to physically assist in Anderson’s removal, enlarged the risks that Henson may have assumed . . . .” 906 N.W.2d at 540. We have never explicitly decided whether there is an enlargement-of-the-risk exception to the doctrine of implied primary assumption of risk, and we need not do so today.

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one of the plaintiffs [30 minutes before the shooting], to put the bar on notice . . . The fight

[had] ended and the McLains [had] left.” Id. at 830; see also Schwingler v. Doebel,

309 N.W.2d 760, 762 (Minn. 1981) (determining that, because “there was no evidence that

Doebel was obviously intoxicated, loud, argumentative, or belligerent prior to the beer

throwing incident,” the injury was unforeseeable); Filas v. Daher, 218 N.W.2d 467, 470

(Minn. 1974) (concluding that it was unforeseeable that, in the midst of a sudden scuffle,

the plaintiff would be hit over the head with an empty beer bottle).

Unlike these cases of unanticipated incidents, when the totality of the facts and

circumstances put the innkeeper on notice, we have held that there was a duty based on

foreseeability. In Klingbeil v. Truesdell, 98 N.W.2d 134 (Minn. 1959), we held that “there

is ample evidence in the record from which the jury could find that [the patrons] were

intoxicated to the point where the proprietor or his servant should have been aware of the

fact that their conduct would lead to trouble.” Id. at 138; see also Mettling v. Mulligan,

225 N.W.2d 825, 828 & n.3 (Minn. 1975) (noting that we have “found liability in tavern

owners predicated upon intoxication of the offending patron” and listing cases).

In this case, 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. The district court observed that the issue of

foreseeability presented a close question of fact, and we agree. It was clear that Anderson

and Sunby were drinking together. As early as 9:24 p.m., when the server turned to watch

Anderson and alerted her off-duty coworker, Anderson’s behavior had come to the

attention of Uptown Drink employees. By 9:34 p.m., Sunby was in an altercation with

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other patrons, prompting the bartender to take Sunby’s drink and tell him to leave. As the

bartender said, “There already [was] a problem.” By 9:36 p.m., the general manager had

intervened with Anderson. Even before Sunby threw a punch and Anderson grabbed the

manager, there was evidence of both obvious intoxication and problematic interactions

with bar employees and other patrons. This evidence is enough to create a disputed issue

of material fact or disputed reasonable inferences from undisputed facts. The element of

foreseeability must therefore be decided by the fact-finder.3

III.

We turn now to the dram-shop claim and the question of whether the undisputed

facts and reasonable inferences show that Anderson’s intoxication was not the proximate

cause of Henson’s injury. For “proximate cause to exist between the intoxication and the

injury in a dram shop action, . . . the intoxication must have been a substantial factor in

bringing about the injury.” Osborne, 749 N.W.2d at 373. The intoxication need not be

“the sole cause of injury for liability to attach.” Id. at 375.

Thus, to survive summary judgment, Henson’s family need not show that

Anderson’s intoxicated actions were the sole cause of the injury to Henson, but rather that

there exists a genuine issue of material fact as to whether Anderson’s actions were a

proximate cause of the fall and injury. See id. at 375 (“[A]s articulated in Kvanli, our dram

shop case law supports our conclusion that the intoxication need not be the sole cause of



3 Uptown Drink would have us draw the foreseeability line at the moment a physical altercation began: when Sunby threw the punch, at 9:37:45 p.m. But a standard of foreseeability depending only on when an altercation begins is contrary to our decisions in Filas and Klingbeil, which were based on all of the facts and circumstances.

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injury.” (citing Kvanli v. Vill. of Watson, 139 N.W.2d 275, 278 (Minn. 1965))). Issues

relating to Henson’s own fault, if any, do not preclude liability, and are considered by the

fact-finder in its comparative-fault analysis. See id. (“The Dram Shop Act explicitly

provides that comparative negligence principles . . . apply to dram shop actions.”).

As we said in Osborne, “[w]hether proximate cause exists in a particular case is a

question of fact for the jury to decide.” Id. at 373. This case is not the rare exception to

that general rule. As in Osborne, there is sufficient evidence in the record for Henson’s

family’s dram-shop claim to survive a motion for summary judgment. There is abundant

evidence—in the form of video evidence, deposition evidence, and police reports—that

Anderson was intoxicated. Moreover, the record includes an expert report opining that

Anderson would have had a very high blood-alcohol reading, “impairing his reasoning,

balance, and muscle coordination, and causing aggression.” Henson, 906 N.W.2d at 541.

The record also shows exactly that: impaired reasoning, balance, motor coordination, and

aggression. A reasonable fact-finder could determine that Anderson’s intoxication, violent

outburst, and subsequent physical resistance, taken together, were the proximate cause of

the fall that killed Henson.

Uptown Drink seeks to distinguish Osborne by arguing that, in that case, the

intoxicated party harmed himself by jumping into the river, whereas in this case the

intoxicated party, Anderson, was not the person injured. This argument misapprehends

Osborne. It was not the fact that the intoxicated party harmed himself that was dispositive;

instead, it was the fact that the intoxicated person caused the harm, which happened to be

to himself. We concluded that “a person’s intoxication at the time of the injury-causing

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event has been sufficient to withstand summary judgment when the injury was caused by

the actions and choices of the intoxicated party.” 749 N.W.2d at 377. The same is true

here.

Therefore, summary judgment on the dram-shop claim was improper.

For the foregoing reasons, we affirm the decision of the court of appeals.

a href=”https://www.schwebel.com/attorney/jballentine/" target="_new"> James S. Ballentine
for amicus curiae Minnesota Association for Justice

a href=”http://www.larsonking.com/attorney.cfm#kevin_t__mccarthy/33798/attorney.cfm" target="_new"> Kevin T. McCarthy
for amicus curiae Minnesota Defense Lawyers Association.