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Bicknell v. Dakota GM, Inc.: US District Court : DRAM - Questions of fact regarding intoxication visibility; no special relationship as spouse; no triable questions regarding spousal complicity; nursing expert question; collateral source questions

Civil No. 07-3529 (JRT/RLE)
Philip L. Sieff, Craig O. Sieverding, and Patricia Yoedicke, ROBINS
KAPLAN MILLER & CIRESI, 800 LaSalle Avenue, Suite 2800,
Minneapolis, MN 55402, for plaintiff.
George C. Hottinger and Nicholas H. Jakobe, ERSTAD & REIMER,
P.A., 8009 34th Avenue South, Suite 200, Minneapolis, MN 55425, for
This case is before the Court on defendant Dakota GM, Inc., d/b/a Green Mills
(Green Mill) and plaintiff Gina Bicknells (plaintiff) motions for summary judgment.
Green Mill seeks summary judgment, arguing that plaintiff is unable to show Green Mill
violated the Minnesota Civil Damages Act, Minn. Stat. 340A.801, and, in the
alternative, that plaintiff is not entitled to recover her husbands medical or nursing
expenses. Plaintiff moves for partial summary judgment that she was not contributorily
negligent and seeks a ruling on the treatment of collateral sources for the purpose of
determining damages. For the reasons discussed below, the parties motions are granted
in part and denied in part.
On Friday, August 5, 2005, plaintiff and her husband, Charles Chaz Bicknell
(Mr. Bicknell), traveled to Ruttgers Birchmont Lodge (Ruttgers Lodge) on Lake
Bemidji, Minnesota, to attend a wedding later that day. (Pl.s Dep., Docket No. 27, Ex.
A at 89-91.) The following day, August 6, plaintiff, Mr. Bicknell, and several others
attended dinner between approximately 5:30 P.M. and 7:30 P.M at Tutto Bene, an Italian
restaurant. (Id. at 107.) At dinner, Mr. Bicknell consumed two glasses of wine and later,
while relaxing by the Ruttgers Lodge pool, Mr. Bicknell consumed one or two gin and
tonics. (Id. at 109-10.) Mr. Bicknell then proceeded to a bar at Ruttgers Lounge with the
group with whom he had spent the day. Between approximately 9:00 P.M. and 12:00
A.M., Mr. Bicknell continued to drink alcoholic beverages. (Id. at 112, Ex. K at 7.)
Members of the group described Mr. Bicknells behavior at the bar as animated,
outgoing, very loud, and intoxicated. (Austad Dep., Docket No. 49, Ex. 5 at 85;
Pl.s Dep., Docket No. 49, Ex. 1 at 125.)
At or around midnight, the Bicknell group, which comprised more than ten
individuals, traveled by boat from Ruttgers Lodge to Green Mill, arriving at about
12:30 A.M. (Pl.s Dep., Docket No. 27, Ex. K.) At Green Mill, the group continued to
consume alcohol. Green Mill records indicate that from midnight until close on the
morning of August 7, Green Mill sold a total of forty-four drinks to all customers.
(Docket No. 50, Ex. 22.) Plaintiff contends that from 12:30 A.M. onward, the Bicknell
group were virtually the only patrons in the bar, but it remains uncertain what portion of
the drinks consumed after midnight were consumed by the Bicknell group. (Pl.s Oppn
Mem., Docket No. 46 at 14.) A credit card slip indicates that Mr. Bicknell paid for 2
Glennfiddich, 6 Jameson drinks at 12:36 A.M. at Green Mill, but it also remains unclear
which of those drinks, if any, Mr. Bicknell consumed. (Docket No. 27, Ex. J.)
At approximately 1:30 A.M., the group departed Green Mill by boat to return to
Ruttgers Lodge. (Id., Ex. K at 8.) As the boat approached the Ruttgers Lodge dock, two
individuals from the group, Courtney McKercher and Chris Clayton, jumped off the boat
into the water. (Clayton Dep., Docket No. 49, Ex. 10 at 72.) As the boat neared the
dock, Mr. Bicknell also decided to jump off the boat, diving head-first into the water.
(Pl.s Dep., Docket No. 27, Ex. A at 172-73.) The water proved too shallow, however,
and Mr. Bicknell fractured his spine after his head collided with the lake bottom. As a
result of that injury, Mr. Bicknell has been rendered quadriplegic. Green Mill maintains
that throughout the course of these events, plaintiff failed to act appropriately to prevent
Mr. Bicknells injury. (Def.s Oppn Mem., Docket No. 62 at 3-5.)
Plaintiff brought this action, alleging that Green Mill is liable for Mr. Bicknells
injuries under the Minnesota Civil Damages Act (CDA), Minn. Stat. 340A.801,
because it illegally sold alcohol to Mr. Bicknell. Green Mill now moves for summary
judgment, arguing that plaintiff has failed to produce evidence that Mr. Bicknell was
obviously intoxicated when Green Mill sold him alcohol and that Green Mill illegally
sold alcohol by acting unreasonably and permitting Mr. Bicknell to consume alcohol offpremises.
Green Mill argues in the alternative that it is entitled to summary judgment
that plaintiff may not recover damages under the CDA as they relate to Mr. Bicknells
medical and nursing expenses.
Plaintiff moves for partial summary judgment, arguing that as a matter of law,
plaintiff is not contributorily negligent for Mr. Bicknells injuries. Plaintiff further seeks
a ruling that evidence of health and disability insurance proceeds paid to Mr. Bicknell
should not be considered in determining plaintiffs damages.
Summary judgment is appropriate where there are no genuine issues of material
fact and the moving party can demonstrate that it is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(c). A fact is material if it might affect the outcome of the suit,
and a dispute is genuine if the evidence is such that it could lead a reasonable jury to
return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986). A court considering a motion for summary judgment must view the facts in the
light most favorable to the non-moving party and give that party the benefit of all
reasonable inferences that can be drawn from those facts. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
A. Illegal Sale of Alcohol to an Obviously Intoxicated Person
Under the Minnesota CDA,
[a] spouse . . . 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 persons 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.
The sale of alcohol to an obviously intoxicated person is an illegal sale of alcohol
under the CDA. Minn. Stat. 340A.502; Strand v. Village of Watson, 72 N.W.2d 609,
614-16 (Minn. 1955). In order for a seller to be liable under such a claim, there must be
such outward manifestation of intoxication that a person using his reasonable powers of
observation can see or should see that such person has become intoxicated. Strand, 72
N.W.2d at 615. Further,
[a] finding of intoxication does not require proof of any specified amount of
drinking or any degree of intoxication, but simply proof that, as a result of
drinking intoxicants, a person has lost control to any extent of his mental or
physical faculties and that such condition is, or should be, observable or
apparent to the seller.
Murphy v. Hennen, 119 N.W.2d 489, 493 (Minn. 1965). Such outward manifestations of
intoxication may include a persons loss of reason or faculty, incoherent speech, or loss
of control of bodily motions or actions. Strand, 72 N.W.2d at 614-16.
Green Mill argues that witness testimony demonstrates that Mr. Bicknell was not
manifesting obvious signs of intoxication at the time Green Mill sold him alcohol. Green
Mill claims that those witnesses, who were present with Mr. Bicknell at the Ruttgers
Lodge bar and Green Mill, testified that Mr. Bicknell was in control of his body motions,
was not overly friendly, and generally was not manifesting outward signs of intoxication
while at Green Mill. (Def.s Supp. Mem., Docket No. 24 at 9-15.)
Further, Green Mill contends that only plaintiff and Paul Smith, who were part of
the Bicknell group at Green Mill, testified that Mr. Bicknell appeared obviously
intoxicated. Smith testified, however, that he did not notice that Mr. Bicknell was
exhibiting signs of intoxication until immediately after the group left Green Mill and
prepared to board the boat for the return trip to Ruttgers Lodge. (Smith Dep., Docket No.
27, Ex. E at 57-58.) Green Mill concedes that plaintiff testified that Mr. Bicknell was
obviously intoxicated at Green Mill, but argues that plaintiff makes only conclusory
statements about Mr. Bicknells behavior, without citing any specific instances of
observable signs of intoxication. (Def.s Supp. Mem., Docket No. 24 at 16-17.) Green
Mill, however, fails to demonstrate that based on witness testimony, there is no genuine
dispute of fact that Mr. Bicknell was obviously intoxicated at the time Green Mill sold
him alcohol.
Minnesota courts have concluded that circumstantial evidence, in the absence of or
in addition to direct evidence, is admissible to establish obvious intoxication. See e.g.,
Larson v. Carchedi, 419 N.W.2d 132, 134 (Minn. App. 1988) (Direct evidence is not
essential, and intoxication sufficient to constitute a violation may be established by
circumstantial evidence which reasonably supports a jury verdict on the ultimate
question.). Notably, Minnesota courts have found that an allegedly intoxicated persons
(AIP) appearance and behavior before and after leaving an establishment may raise a
fact question of intoxication for a jury. Carchedi, 419 N.W.2d at 135-36.
The Minnesota Supreme Court has also previously held that being loud or
boisterous are among the usual characteristics of an intoxicated person. Strand, 72
N.W.2d at 612. Here, Smith testifies that while at Green Mill, Mr. Bicknell was
boisterous, louder, and overly friendly. (Smith Dep., Docket No. 49, Ex. 7 at 99.)
Moreover, Smith testified that when Mr. Bicknell left Green Mill he was yelling around
outside, and had to be told to be quiet. (Id. at 103-04.) Plaintiffs testimony could
further support a finding that Mr. Bicknell was obviously intoxicated at Green Mill:
plaintiff testified that Mr. Bicknell was very loud, extremely friendly, draping his arms
around people. He always had a drink, and . . . [h]is eyes were also bleary. (Pl.s Dep.,
Docket No. 49, Ex. 1 at 154-55.)
Although the number of witnesses (eight) testifying that they could not recollect if
Mr. Bicknell was outwardly manifesting signs of intoxication at Green Mill outnumber
the witnesses (two) that testify that Mr. Bicknell was exhibiting signs of obvious
intoxication around the time of the alleged illegal sale, that is insufficient by itself to
demonstrate that there is no triable issue of fact. Plaintiff has presented sufficient
evidence from witness testimony to survive a motion for summary judgment.
Accordingly, Green Mills motion is denied to the extent that it seeks summary judgment
on plaintiffs allegation of a sale to an obviously intoxicated person.
Green Mill also seeks to exclude from consideration plaintiffs expert report from
Lowell Van Berkom and affidavit from Donald Marose. Van Berkom, a toxicologist,
opines that Mr. Bicknell was likely obviously intoxicated at Green Mill and relates
Mr. Bicknells estimated blood alcohol content to the likelihood that Mr. Bicknell would
have displayed outward signs of intoxication while at Green Mill. Marose, a Minnesota
State Patrol officer, draws on his twenty years of experience with the Minnesota State
Patrol to state with a reasonable degree of certainty that Mr. Bicknell would likely
show visible signs and symptoms of intoxication while at Green Mill. (Marose Aff.,
Docket No. 47.) Given the Courts conclusions regarding disputes of fact in witness
testimony, it is unnecessary to determine the admissibility of this evidence at this stage,
and these admissibility issues may be addressed more fully at trial if still disputed.1
B. Illegal Sale of Alcohol Based on Off-Premises Consumption
Plaintiff also alleges that Green Mill made an illegal sale to Mr. Bicknell based on
Mr. Bicknells off-premises consumption of alcohol sold by Green Mill. The sale of
alcohol in an open container by an on-sale vendor without safeguarding against offpremises
consumption is an illegal sale under the CDA. Englund v. MN CA Partners/MN
Joint Ventures, 555 N.W.2d 328, 331-32 (Minn. App. 1996). [That] is not to say that an
on-sale liquor vendor is liable every time a customer evades the vendors safeguards and
smuggles liquor off-premises. Id. at 332. Rather, a vendor will only be liable if it is
1 Green Mill also opposes plaintiffs submission of photographs of Mr. Bicknell and the
Bicknell group to establish that Bicknell was obviously intoxicated while at Green Mill.
Although it is questionable whether photographs that do not include Mr. Bicknell are relevant to
the ultimate question here, it is clear from witness testimony that facts about Mr. Bicknells
obvious intoxication remain disputed. Thus at this stage of the litigation, the Court need not
determine which, if any photographs, are admissible to a jury.
established that the vendor did not operate as a reasonable vendor, acting in good faith
to sell liquor to be consumed only on the licensed premises. Id.
Plaintiff has not produced evidence sufficient to persuade a reasonable juror that
Green Mill failed to operate as a reasonable vendor, acting in good faith to sell alcohol to
Mr. Bicknell for consumption only on licensed premises. Although there is testimony
that three individuals left Green Mill with alcohol, Green Mill is not liable merely
because customers are able to smuggle alcohol from the premises. Plaintiff points to
evidence that Green Mill violated its policy requiring the removal of patrons drinks
promptly at closing time. The sole evidence provided in support of this contention is a
photograph that allegedly shows drinks on the restaurant table almost a half-hour after
Green Mills closing. (Docket No. 50, Ex. 34.) There is no indication on the photo or
outside of plaintiffs assertion, however, that the photo was, indeed, taken after closing.
Moreover, even if the photo suggests that drinks were not cleared after closing, the Court
is not persuaded that such evidence could lead a rational trier of fact to conclude that
Green Mill acted unreasonably and in bad faith.
Plaintiff also claims that Green Mill acted unreasonably by serving multiple drinks
at last call when Green Mill knew that the Bicknell group would be leaving shortly
thereafter. But only one individual in the group, James Austad, claimed that he was
provided with a beer when he had not finished his previous drink. (Austad Dep.,
Docket No. 49, Ex. 6 at 121.) Austad stated, I think I ordered the second beer because
they said last call and I hadnt finished my first beer. (Id.) This evidence alone is
insufficient to establish that Green Mill illegally sold alcohol to Mr. Bicknell without
safeguarding against off-premises consumption.
Accordingly, Green Mills motion for summary judgment is granted as to the
claim for illegal sale of alcohol based on off-premises consumption.
C. Plaintiffs Recovery for Mr. Bicknells Medical or Nursing Expenses
Green Mill further seeks a ruling that, as a matter of law, plaintiff may not recover
damages resulting from medical or nursing costs related to Mr. Bicknells care after his
accident. (Pl.s Supp. Mem., Docket No. 24 at 29-32.) Under the CDA,
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 persons own name for all damages sustained against a person
who caused the intoxication of that person by illegally selling alcoholic
Minn. Stat. 340A.801, subd. 1. One who voluntarily becomes intoxicated, however,
may not recover for his own injuries under the CDA. Jones v. Fisher, 309 N.W.2d 726,
728 (Minn. 1981).
Mr. Bicknell could not recover his own damages here because he was voluntarily
intoxicated on the night in question. See Jones, 309 N.W.2d at 728. Plaintiff, however,
argues that she can recover those expenses because they constitute property loss damages
to her. That is, plaintiff claims that she is jointly and severally liable as Mr. Bicknells
wife for Mr. Bicknells medical and nursing expenses under state law. Plaintiff further
asserts that health care expenses that are not covered by insurance will be paid from the
couples joint funds.
Minnesota case law clearly contemplates that plaintiff may recover damages under
the CDA. Minn. Stat. 340A.801, subd. 1 (spouse); see also Lefto v. Hoggsbreath
Enters., Inc., 581 N.W.2d 855, 857-58 (Minn. 1998) (holding that a fiance to an AIP and
the fiances daughter were entitled to exercise their right of action under the Act). Case
law, however, does not clearly resolve whether plaintiff may recover the type of damages
sought here. Both Green Mill and plaintiff cite State Farm Mut. Auto. Ins. Co. v. Village
of Isle, 122 N.W.2d 36 (Minn. 1963), to support their positions on damages. In Village of
Isle, the Minnesota Supreme Court reviewed a plaintiff-wifes claim for loss of means of
support as a result of injuries sustained by her husband in a car accident after the
defendant illegally sold him alcohol. Id. at 38. Among the damages claimed by the
plaintiff was the depletion of the couples joint funds by the husband to pay for hospital,
medical, ambulance, and nursing expenses arising out of the accident. Id. A jury
returned a verdict in the plaintiffs favor, and the defendant appealed the trial courts jury
instruction, which described what constituted means of support for the purposes of
damages. Id. at 39.
The Supreme Court held that the plaintiff was entitled to recover for the loss of
means of support, stating:
There is nothing to indicate that any part of this award was based upon
plaintiff's payment of the medical items described. The trial court did not
instruct the jury that such expenses were to be considered in computing
such damages. Normally, the husband's liability for such expenses incurred
in his wife's behalf is regarded as an injury to property, but here no award
for injury to property was made to plaintiff. The medical expenses were
paid from funds owned jointly by plaintiff and her husband which she could
look to as a source of support and which were depleted to the extent of the
payments described. Accordingly, it might logically be said that the jury
could properly have considered them in determining a fair amount due
plaintiff for her loss of support. Under the circumstances described, we feel
that the amount awarded plaintiff for loss of means of support should be
Id. at 40 (citations omitted).
It is difficult to reconcile the language in Village of Isle with either partys
position. It appears that Village of Isle approved of the jurys consideration of the
husbands medical expenses in determining the plaintiffs damages for loss of means of
support. The Supreme Court, however, states that [a]ny resulting need for future
medical or nursing expenses therefor, as well as any requirement for his future care, must
be regarded as injuries personal to him or to his property for which he, rather than
plaintiff, would have a personal action. Id. at 42. This additional conclusion may
reflect the law of property damages at the time Village of Isle was decided more than a
damages analysis in a dram shop action: plaintiffs argue that in the 1960s . . . a wife
did not even have a property damages claim for her own medical expenses, much less
those of her husband. (Pl.s Oppn Mem., Docket No. 46 at 42 (citing Janke v. Janke,
195 N.W.2d 185 (Minn. 1972) (emphasis original).)
Without sufficiently clear guidance from Village of Isle, the Court returns its focus
to the language of the CDA. Under the CDA, a spouse . . . 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 persons own name. Minn.
Stat. 340A.801, subd. 1. Here, plaintiff has asserted claims for damages to her
property, means of support, and for pecuniary loss. Although Mr. Bicknell could not
recover for his own medical expenses, plaintiff is now largely responsible for her
husbands and her own livelihood. Thus, the depletion of plaintiff and Mr. Bicknells
joint funds, to which plaintiff now must contribute in significantly greater proportions,
could be considered plaintiffs property damages under the CDA.
The question of how speculative plaintiffs claims are or whether she may recover
for expenses paid from collateral sources are questions that may be further reviewed,
along with additional argument regarding the instant issue, in motions in limine if this
case proceeds to trial. Given the above analysis, the Court therefore denies without
prejudice Green Mills motion for summary judgment as to recovery of Mr. Bicknells
medical expenses.
Plaintiff moves for partial summary judgment that she was not contributorily
negligent and requests a ruling that disability and health insurance benefits provided to or
on Mr. Bicknells behalf cannot be deducted from plaintiffs requested damages.
A. Plaintiffs Comparative Fault
Any action brought under the CDA is governed by Minnesotas comparative
negligence statute. Minn. Stat. 340A.801, subd. 3. Thus, any damages allowed [under
the CDA] must be diminished in proportion to the amount of fault attributable to the
person recovering. Id. 604.01, subd. 1. Fault includes acts or omissions that are in
any measure negligent or reckless toward the person or property of the actor or others
. . . . The term also includes . . . the defense of complicity under section 340A.801. Id.
subd. 1a. [E]xcept in those rare cases where there is no dispute in the evidence and the
factfinder could come to only one conclusion, the apportionment of negligence should be
left to a jury. Campion v. Knutson, 239 N.W.2d 248 (Minn. 1976) (internal quotation
marks omitted).
Green Mill contends that plaintiff was negligent because she failed to take steps to
stop Mr. Bicknell from consuming additional drinks after becoming aware that he was
intoxicated. (Def.s Oppn Mem., Docket No. 62 at 4.) Green Mill also notes that
plaintiff failed to stop Mr. Bicknell from carrying a drink out of Green Mill and failed to
act to prevent her husband from diving head-first into Lake Bemidji. (Id. at 4-5.)
1. Plaintiffs Legal Duty to Mr. Bicknell
Plaintiff claims that as a matter of law she cannot be found negligent because
Minnesota law does not impose on her a legal duty to protect her husband. (Pl.s Supp.
Mem., Docket No. 57 at 10.) Under Minnesota law, the existence of a legal duty is a
required element of a negligence claim. Funchess v. Cecil Newman Corp., 632 N.W.2d
666, 672 (Minn. 2001). The existence of a legal duty is generally a question of law for
the Court and if there is no legal duty, summary judgment must be granted. Id. at 672,
a. Duty Based on a Special Relationship
The Minnesota Supreme Court, which has adopted the Restatement (Second) of
Torts, holds that [a] person generally has no duty to act for the protection of another
person, even if he realizes or should realize that action on his part is necessary.
Donaldson v. Young Womens Christian Assn, 539 N.W.2d 789, 792 (Minn. 1995).
However, [a] legal duty to act for the protection of another person arises when a special
relationship exists between the parties. Id. (citing Erickson v. Curtis Inv. Co., 447
N.W.2d 165,169 (Minn. 1989)); see also Restatement (Second) of Torts 314A (1965).
Minnesota case law has generally only found a duty to protect under this exception on
the part of common carriers, innkeepers, possessors of land who hold it open to the
public, and persons who have custody of another person under circumstances in which
that other person is deprived of normal opportunities of self-protection. Donaldson, 539
N.W.2d at 792. Typically, the plaintiff is in some respect particularly vulnerable and
dependent on the defendant, who in turn holds considerable power over the plaintiff's
welfare. Id. (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts
56, at 374 (5th ed. 1984)). Further, to properly find that there is a special relationship
between parties, the harm to be prevented by defendant must be that type of harm that
defendant is in a position to and should be expected to protect against. Erickson, 447
N.W.2d at 168.
Green Mill argues that a spousal relationship is the type of special relationship
that can give rise to a legal duty to act. In support of this proposition, Green Mill cites
Lind v. Slowinski, 450 N.W.2d 353, 356 (Minn. App. 1990) (citing Regan v. Stromberg,
285 N.W.2d 97, 99-100 (Minn. 1979)), which concluded that [u]nder certain
circumstances, . . . a duty [to protect] may . . . exist between husband and wife. Green
Mill argues that the Restatement (Second) of Torts further supports its position:
The duties stated in this Section arise out of special relations between the
parties, which create a special responsibility, and take the case out of the
general rule [that there is no duty to act]. The relations lists are not
intended to be exclusive, and are not necessarily the only ones in which a
duty of affirmative action for the aid or protection of another may be found.
There may be other such relations, as for example that of husband and
wife, where the duty is recognized by the criminal law, but there have as
yet been no decisions allowing recovery in tort jurisdictions where
negligence actions between husband and wife for personal injuries are
Restatement (Second) of Torts 314 A, cmt. B (1965) (emphasis added).
A spousal relationship, however, is not a per se special relationship for the
purpose of creating a legal duty. Lind cites to Regan v. Stromberg for its conclusion that
a duty may exist between a husband and wife, but Regan is not a special relationship
case. Rather, Regan examined the legal duty for someone who took charge of another
who was under a disability. Regan, 285 N.W.2d at 100. Moreover, the purpose of the
special relationship exception is to protect an individual who is particularly vulnerable
and dependent on the defendant, who in turn holds considerable power over the plaintiffs
welfare. Donaldson, 539 N.W.2d at 792. Here, plaintiff and Mr. Bicknells relationship
is not a special relationship that creates a legal duty: a party is not dependent on his or
her spouse for protection by virtue of any inherent vulnerability.
b. Duty Based on Taking Charge of Another
Green Mill argues that there is a second basis for establishing that plaintiff had a
legal duty to act. Under Minnesota law, an affirmative duty to protect another arises
[w]here one is in charge of another, or who being under no duty to do so
takes charge of another, and who knows or in the exercise of reasonable
care should know that the physical or mental condition of such person is
such that it is reasonably foreseeable that such person would be exposed to
injury, then the person in charge must use reasonable care to prevent such
Regan, 285 N.W.2d at 100.
Plaintiff does not address the question of whether Mr. Bicknell was under a
disability on the evening of August 6 and early morning of August 7. (Pl.s Supp.
Mem., Docket No. 57 at 15.) Plaintiff argues, however, that Green Mill has not presented
any evidence that plaintiff took charge of Mr. Bicknell or the circumstances attendant to
his accident. (Id.)
The Eighth Circuit, addressing legal duties under Iowa law, held that to take
charge requires specific action to exercise control or custody over the helpless
individual. Freeman v. Busch, 349 F.3d 582, 588-589 (8th Cir. 2003); see also Depue v.
Flateau, 111 N.W. 1, 3 (1907) (stating that when taking charge of a disabled individual,
there is an obligation as a matter of law, not mere sentiment, at least to refrain from any
affirmative action that might result in injury to [the disabled person]). Green Mill
asserts that the inquiry is whether a plaintiff took charge of the circumstances under their
control. (Def.s Oppn Mem., Docket No. 62 at 11.) As a result, Green Mill contends
that a question remains about whether plaintiff took control over the circumstances
because she suggested that her husband should stop drinking, told him not to remove a
drink from Green Mill, held his cigarette before he dove into Lake Bemidji, and
maintained control over the couples joint funds that were used by Mr. Bicknell to
purchase alcohol. (Id.)
Green Mill has failed to produce evidence showing that plaintiff took charge of
Mr. Bicknell or the circumstances surrounding his accident. Although plaintiff suggested
that Mr. Bicknell should stop drinking or should not remove his drink from Green Mill, it
is the view of the Court that such action is not specific enough to suggest plaintiff was
exercising control or custody over Mr. Bicknell. Indeed, it appears that plaintiff was
decidedly removed from the circumstances of this case. Accordingly, the law did not
impose on plaintiff a duty to act with respect to Mr. Bicknell.
2. Complicity
Plaintiff also seeks summary judgment on Green Mills anticipated assumption of
risk and imputation claims. Green Mill does not respond to these contentions and, after
reviewing plaintiffs arguments, the Court grants plaintiffs motion as to assumption of
risk and imputation. Those issues have, however, evolved into allegations of complicity
and arguments that plaintiff failed to avoid the injury or mitigate damages.
Complicity is merely an aspect of comparative fault. K.R. v. Sanford, 605 N.W.2d
387, 394 (Minn. 2000). Indeed, only an innocent third party is entitled to recover under
the CDA. Randall v. Village of Excelsior, 103 N.W.2d 131, 133 (Minn. 1960). The
term innocent third party, as used in [] case law interpreting the complicity doctrine
under the [CDA], means a party not complicit in the specific illegal act. Sanford, 605
N.W.2d at 393. Although simply accompanying a person who has become intoxicated
does not constitute complicity, Hempstead v. Minneapolis Sheraton Corp., 166 N.W.2d
95, 99 (Minn. 1969), one who has been an intentional accessory to the illegality could
be found complicit. Turk v. Long Branch Saloon, Inc., 159 N.W.2d 903, 906 (Minn.
Green Mill argues that plaintiffs presence at the establishments with her
husband, her alleged knowledge of his obvious intoxication, and her knowledge of drink
purchases with her funds create a genuine issue of material fact as to her complicity in the
alleged illegal sale. (Def. Opp. Mem., Docket No. 62 at 16.) The Minnesota Supreme
Court has been clear, however, that it is the action of providing or selling the alcohol to
the AIP that is relevant to the determination of complicity. Sanford, 605 N.W.2d at 393-
94. Green Mill presents no evidence that plaintiff was complicit in the illegal sale of
alcohol by providing the alcohol to Mr. Bicknell for example, by purchasing the alcohol
herself and then providing it to her husband and mere knowledge of Mr. Bicknells
drinking is insufficient. See Hempstead, 166 N.W.2d at 99; cf. Sanford, 605 N.W.2d at
393-94 (examining previous case law and concluding that in one case, a plaintiff was
complicit because he continued to provide alcoholic beverages once he knew or should
have known that his companion was obviously intoxicated; and in another case, noting
that the Supreme Courts decision turned not on the fact that the plaintiff caused
someone to become intoxicated, but on the illegality of providing a minor with alcohol
(emphasis added)). Thus, there is no triable fact question as to plaintiffs complicity in
the illegal sales.2
2 Green Mill also argues that there is a triable issue of fact regarding plaintiffs
complicity in the illegal sale of alcohol based on off-premises consumption. The Court,
however, grants Green Mills motion for summary judgment on the issue of an illegal sale based
(Footnote continued on next page.)
3. Duty to Avoid Injury and Mitigate Damages
The Minnesota comparative fault statute attributes fault to an individual for
unreasonable failure to avoid an injury or to mitigate damages. Minn. Stat. 604.01,
subd. 1a. Proof of such an unreasonable failure may be considered in determining the
damages to which the claimant is entitled. Id. Green Mill offers only conclusory
argument, however, that plaintiff breached a duty to avoid injury and mitigate damages:
[E]vidence indicates that Plaintiff unreasonably failed to avoid injury or
mitigate damages to herself. She says she knew her husband was
intoxicated. And since he is her husband, she had to know that injuries to
him could cause damages to her. A reasonable person would know that
allowing ones very intoxicated husband to jump off a boat into a lake at
nearly 2:00 a.m. could result in injury to him and in turn to oneself. . . .
Plaintiff could have asked her husband not to jump in. She was sitting right
next to him. But she chose not to.
(Def.s Oppn Mem., Docket No. 62 at 21.) This argument merely repeats Green Mills
comparative negligence arguments, which the Court has already found unpersuasive.
Given the above analysis, plaintiffs motion for summary judgment as to
comparative negligence is granted.
B. Treatment of Collateral Sources
Plaintiff further seeks a ruling that her claim for damages should be submitted to a
jury without mention of disability and health insurance benefits provided to Mr. Bicknell.
(Footnote continued.)
on off-premises consumption, and the issue of plaintiffs complicity in that offense is therefore
(Pl.s Supp. Mem., Docket No. 57 at 26-28.) Under Minnesota law, if the trier of fact
determines that a party is liable for damages to a plaintiff in a tort action, the court shall
determine . . . amounts of collateral sources that have been paid for the benefit of the
plaintiff . . . as a result of the losses except those for which a subrogation right has been
asserted. Minn. Stat. 548.251, subd. 2 (2008). A collateral source is a payment[]
related to the injury or disability in question made to plaintiff, or on plaintiffs behalf up
to the date of the verdict, by or pursuant to, inter alia, health insurance and accident
insurance that provide health benefits or income disability coverage. Id. 548.251,
subd. 1. On determining the amounts of the collateral sources, the Court will reduce any
jury award by such amounts. Notably, [t]he jury shall not be informed of the existence
of collateral sources or any future benefits which may or may not be payable to the
plaintiff. Minn. Stat. 548.251, subd. 5.
Plaintiff contends that Mr. Bicknells disability benefits may not diminish
plaintiffs recovery because the premiums were paid entirely by the Bicknells. See id.
548.251, subd. 1(4) (excluding from the definition of collateral sources benefits
received from a private disability insurance policy where the premiums were wholly paid
for by the plaintiff.) Plaintiff also argues that evidence of benefit payments by
Mr. Bicknells health insurance should not be presented to the jury or deducted from the
verdict because the health insurance company has asserted a subrogation interest in those
benefits. Minn. Stat. 548.251, subd. 2.
A collateral source is a payment related to an injury or disability to a plaintiff, and
Mr. Bicknell, who is not the plaintiff in this action, was the person who received
payments from these sources. Further, it appears that plaintiff seeks to submit to the
jurys consideration the full measure of damages, notwithstanding the fact that an award
of damages could therefore duplicate the recovery of benefits by Mr. Bicknell. See Do v.
Am. Fam. Mut. Ins. Co., 752 N.W.2d 109, 114 (Minn. App. 2008) (The statute prevents
double recovery by requiring the deduction of certain benefits received by a civil
plaintiff and thus abrogates the common law right to be overcompensated for injuries.
(quoting Johnson v. Farmers Union Cent. Exch., Inc., 414 N.W.2d 425, 432 (Minn. App.
Accordingly, the Court denies without prejudice plaintiffs request for a ruling that
Mr. Bicknells disability and health benefits constitute collateral sources that should not
be presented to the jury or deducted from a verdict. The Court will revisit this question in
motions in limine if the case proceeds to trial and the issue is not yet resolved.
This case will be placed on the Courts next available trial calendar
Based on the foregoing, all the files, records, and proceedings herein, IT IS
1. Defendant Dakota GM, Inc. d/b/a Green Mills Motion for Summary
Judgment [Docket No. 22] is GRANTED in part and DENIED in part as follows:
a. The motion is GRANTED as to plaintiffs claim of an illegal sale
based on off-premises consumption of alcohol;
b. The motion is DENIED without prejudice as to the inclusion of
plaintiffs husbands medical and nursing expenses in plaintiffs requested
damages; and
c. The motion is DENIED in all other respects.
2. Plaintiff Gina Bicknells Motion for Partial Summary Judgment [Docket
No. 55] is GRANTED in part and DENIED in part as follows:
a. The motion is GRANTED as to Green Mills assertion of theories
for comparative negligence, assumption of risk, imputation, complicity, and duty
to avoid or mitigate damages; and
b. The motion is DENIED in all other respects.
DATED: March 24, 2009 ____s/ ____
at Minneapolis, Minnesota. JOHN R. TUNHEIM
United States District Judge


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