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Date: 01-25-2019

Case Style:

David Lee Henson, et al. vs. Uptown Drink, LLC, Assurance Company of America

Case Number: A17-1066

Judge: David Lillehaug

Court: STATE OF MINNESOTA IN SUPREME COURT

Plaintiff's Attorney: Bernie M. Dusich
Ryan T. Gott

Defendant's Attorney: Steven E. Tomsche
Beth L. LaCanne

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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.

6
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
15
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.

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

Plaintiff's Experts:

Defendant's Experts:

Comments: Matthew J. Barber James S. Ballentine for amicus curiae Minnesota Association for Justice Mark A. Solheim Kevin T. McCarthy for amicus curiae Minnesota Defense Lawyers Association.



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