Peggy Husbands individually and as parent and natural guardian of Ashley Diane Husbands, Christina Nicole Husbands, Minor Children, et al., Respondents, vs. City of Baudette, d/b/a City of Baudette Municipal Liquor Store, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002). STATE OF MINNESOTA

IN COURT OF APPEALS

A03-415

Peggy Husbands individually

and as parent and natural guardian of Ashley Diane Husbands,

Christina Nicole Husbands, Minor Children, et al.,
Respondents,
 
vs.
 
City of Baudette,

d/b/a City of Baudette Municipal Liquor Store,

Appellant.

 

Filed December 16, 2003

Reversed and remanded

Gordon W. Shumaker, Judge

 

Lake of the Woods County District Court

File No. C6-02-0084

 

 

Alan B. Fish, Rita Fish-Whitlock, Alan B. Fish, P.A., 109 Second Street Northeast, Roseau, MN 56751 (for respondents)

 

Steven E. Tomsche, Bryan B. Carroll, Tomsche, Sonnesyn & Tomsche, P.A., 610 Ottawa Avenue North, Minneapolis, MN 55422 (for appellant)

 

 

            Considered and decided by Wright, Presiding Judge; Shumaker, Judge; and Crippen, Judge.*

           

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

In this dram shop action, the district court granted partial summary judgment to respondents, ruling that appellant made an illegal after€‘hours sale of alcohol to respondents' decedent, who was thereafter killed in an automobile accident.  The court also certified as important and doubtful the question of whether the facts show an illegal sale of alcohol.  Appellant contends that the court erred in determining that an illegal sale was made.  Because there is a genuine issue of material fact to be decided before the statutory definition of "sale" may be applied, we reverse and remand.  The existence of a fact issue also precludes us from answering the certified question.

FACTS

It is undisputed that respondents' decedent, Joseph Husbands, Sr., bought and drank mixed alcoholic beverages at appellant's Baudette Municipal Liquor Store between 11:00 p.m. on Tuesday, February 19, 2002, and 1:00 a.m. on Wednesday, February 20, 2002.  It is also undisputed that, after 1:00 a.m., Husbands poured and consumed his own drink at the liquor store; that he paid no money for that drink; and that the bartender was aware that Husbands had helped himself to one after€‘hours beverage.  Finally, it is undisputed that after Husbands left the liquor store alone in his automobile, he was killed in a single€‘vehicle accident.

There is some dispute about the circumstances of Husbands' consumption of the after€‘hours drink.  Respondents contend that, at about 1:30 a.m., Husbands asked the bartender if he could have another drink and the bartender directed him to help himself.  Appellant asserts that Husbands simply poured the drink without the bartender's prior approval or direction.

Without material contradiction, the recordprincipally the bartender's depositionshows that after closing time the bartender, Husbands, and Husbands' wife remained at the liquor store.  Husbands and his wife assisted the bartender, who had a broken arm, in cleaning the store.  Referring to Husbands and his wife in his deposition testimony, the bartender stated that they "thought they would help me clean up."  At some point during the cleaning, Husbands mixed his own alcoholic drink and then continued to help clean up.  The bartender testified that he was in the back room when Husbands mixed his own drink, but he acknowledged knowing that Husbands had poured the drink:

Yeah, he justthey just continued doing what they were doin'. Washing ashtrays.  Or, I don't remember specifically what he was doin'.  Puttin' up stools, whatever.  Take a drink, do a little bit.  Take another drink.  I mean he did not make the drink and then sit down and just sit there and drink it.  They just continued doin' what they were doing.

 

After denying the parties' cross€‘motions for partial summary judgment on the issue of an after€‘hours sale, the district court reconsidered, granted respondents' partial summary judgment motion, denied appellant's motion, and certified as important and doubtful this question:

If an allegedly intoxicated person has paid for and consumed drinks provided by a municipal on€‘sale liquor establishment for two continuous hours during legal hours of service, and continued to remain on the premises after legal serving hours, then pours and consumes a drink after such legal hours for which the municipal employee bartender does not charge the person but is aware of it and acquiesces, is such a "sale" of alcohol for the purposes of liquor liability?

Ruling that a "sale" had occurred, the district court relied not only on uncontroverted facts, but on additional factual inferences noted in the court's memorandum:

It is also apparent that neither Mr. Husbands nor his wife paid for the last drink that he consumed.  However, the Court is of the belief someone must have paid for it.  This is, after all, a municipal corporation.  Presumably, the City of Baudette is not in the business of giving away or allowing people to take liquor away from the public coffers without compensation.  Some type of at least implied consideration is therefore the only thing that would allow for alcohol to be "given" by municipal employees to patrons of the liquor store.

 

The district court also stated that "it is not uncommon for a bar to give one drink periodically to a patron ‘on the house,'" and that "the exchange of consideration lies in the anticipated goodwill or future business of this type of practice, which commonly occurs."

On appeal, the City of Baudette contends that the district court erred in concluding that Husbands' self€‘help pour of an after€‘hours drink was a "sale" of that drink.

D E C I S I O N

Summary judgment is appropriate when there are no genuine issues of material fact to be decided by a trier of fact and when a party is entitled to judgment as a matter of law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  We review the grant of summary judgment to determine whether that standard has been met.  Id.  An appeal may also be taken from the denial of a summary judgment motion if the district court certifies the question as important and doubtful.  Minn. R. Civ. App. P. 103.03(i).  We review certified questions of law de novo.  Dohney v. Allstate Ins. Co., 632 N.W.2d 598, 600 (Minn. 2001).  Cross€‘motions for summary judgment will not obviate the need for a trial if genuine issues of material fact exist.  St. Paul Fire & Marine Ins. Co. v. Nat'l Computer Sys., Inc., 490 N.W.2d 626, 630 (Minn. App. 1992).

This is a lawsuit under the civil damages act in Minn. Stat. § 340 A. 801 (2002), also known as the dram shop act.  Liability under the act is limited to commercial vendors of alcoholic beverages.  Koehnen v. Dufour, 590 N.W.2d 107, 110-11 (Minn. 1999).  It is undisputed that appellant's liquor store is a commercial vendor of liquor.  Liability is also restricted to illegal "sales" of alcohol and does not extend to other means of obtaining alcoholic beverages from a commercial vendor.  See Knese v. Heidgerken, 358 N.W.2d 177 (Minn. App. 1984) (finding no sale by a commercial vendor when minors entered through an inadvertently unlocked door before business hours and took a case of beer).

Minn. Stat. § 340 A. 504, subd. 2 (2002), treats as illegal any "sale" of intoxicating liquor for consumption on the licensed premises "between 1:00 a.m. and 8:00 a.m. on the days of Monday through Saturday."  Anyone injured by an intoxicated person to whom an illegal sale of alcohol was made has a right of action against the seller under the dram shop act.  Minn. Stat. § 340 A. 801, subd. 1 (2002).  It is undisputed that Husbands obtained and consumed one alcoholic beverage at the liquor store on a Wednesday after 1:00 a.m.

The single issue on appeal is whether, by knowingly allowing Husbands to pour and consume one after€‘hours drink without monetary charge at the liquor store, the bartender made an illegal "sale" of alcohol as a matter of law.

The dram shop act does not define the term "sale."  When there is no special or technical definition of a word in a statute, we are to construe the word in its "common and approved usage."  Minn. Stat. § 645.08(1) (2002).  It seems unarguable that standard dictionary definitions reveal common and approved usages of non€‘technical words.

The American Heritage Dictionary of the English Language 1591 (3d ed. 1992) defines "sale" as the "exchange of goods or services for an amount of money or its equivalent."  In Webster's New World Dictionary 1255-56 (2d College ed. 1980), a "sale" is defined to be an "exchange of property of any kind, or of services, for an agreed sum of money or other valuable consideration."  One Minnesota case adopted and elaborated on these usages in the context of the dram shop act: "A sale . . . of liquor involves a bargained€‘for exchangei.e., consideration which is ‘the voluntary assumption of an obligation by one party on the condition of an act or forbearance by the other.'"  Knese, 358 N.W.2d at 179-80 (citing, among other authorities, 1 A. Corbin, Corbin on Contracts § 116 (1963)).

When interpreting statutory language, remedial legislation is to be given liberal construction so as to suppress the mischief at which it is aimed, and penal legislation is not to be enlarged beyond the meaning of clear and explicit statutory language.  Id.  Furthermore, in construing the word "sale" under the dram shop act, we are not to use a hypertechnical definition.  Carlson v. Thompson, 615 N.W.2d 387, 389 (Minn. App. 2000) (citation omitted). 

The definition of "sale" taken from contract law by the court in Knese seems to serve both the remedial and penal purposes of the dram shop act and avoids the hypertechnicality cautioned against in Carlson.  Thus, a commercial vendor of alcohol is subject to liability under the dram shop act if that vendor has illegally provided an alcoholic beverage for consideration either in the form of money or through a bargained€‘for receipt of valuable goods or services.  To survive a summary judgment motion, a party asserting dram shop liability must identify a genuine issue of material fact as to whether there was an illegal "sale."

This record shows that money was not the consideration for the after€‘hours drink.  But we hold that there exists a genuine fact issue as to whether the consideration took the form of Husbands' assistance with cleaning the store, or some other form of assistance or support of the business.  Under contract law, consideration need not always be expressed but can be implied from the circumstances if there is a basis for the inference.  Bergstedt, Wahlberg, Berquist Assoc., Inc. v. Rothchild, 302 Minn. 476, 479, 225 N.W.2d 261, 263 (1975).  There is reference in the record to past practices of Husbands helping to clean the store after€‘hours and sometimes receiving after€‘hours drinks. Whether Husbands' conduct on the date of his death impliedly provided consideration for the after€‘hours drink is a question within the purview of a fact-finder who can assess credibility and draw appropriate inferences from a complete factual context.  In Donnay v. Boulware, the supreme court characterized the nature of summary judgment:

Summary judgment is a "blunt instrument" and should not be employed to determine issues which suggest that questions be answered before the rights of parties can be fairly passed upon. It should be employed only where it is perfectly clear that no issue of fact is involved, and that it is not desirable nor necessary to inquire into facts which might clarify the application of the law.

 

Donnay v. Boulware, 275 Minn. 37, 45, 144 N.W.2d 711, 716 (1966) (citation omitted).

In holding that there exists a genuine fact issue that makes summary judgment inappropriate, we also reject the district court's speculation that someone must have paid for Husbands' after€‘hours drink and that bars commonly give drinks "on the house" to provide goodwill and future business.  These are facts or inferences unsupported by the record.

Because fact issues must be decided, we cannot make the legal determination invited by the certified question.  See Staples v. Zinn, 302 Minn. 149, 152-53, 223 N.W.2d 415, 417-18 (1974) (stating when the facts are insufficient to raise the certified question, the court may decline to answer it).

Reversed and remanded. 

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.