Carlson v. Thompson

G. BARRY ANDERSON, Judge

(dissenting).

I respectfully dissent because I do not believe that there is evidence in the record establishing that a sale of alcoholic beverages took' place at a time when Eric Thompson was obviously intoxicated.

Respondent places great weight on the cover charge paid by Thompson and the beer tickets purchased by Thompson. While the stipulated facts make clear that Thompson used the tickets to purchase beer when he was not obviously intoxicated, the stipulated facts also make equally clear that, after the initial exchange of tickets for beer, no further consideration passed between Thompson and the Fire Fighters Relief Association. Critically, after using one or two tickets, the stipulated facts lay out what followed,

Thompson gave the remainder or his tickets to a friend, and from that point forward, the Fire Fighter’s (sic) continued to serve Thompson beer but they did not collect any additional tickets. At no time did Thompson expect or receive a refund for the unused tickets he had purchased. By 10:30 p.m., Thompson had become obviously intoxicated, however, the Fire Fighters continued to serve Thompson beer, as indicated, without an exchange of tickets. The beer served to Thompson between 10:30 p.m. and 11:45 p.m. further contributed to his intoxication.

Thompson’s decision to give away his tickets is the critical fact upon which liability pivots. The medium of exchange in this ease, beer tickets, is no longer in his possession following his decision to givé those tickets away. This is not a mildly interesting fact or something of historical interest; it is critical to establishing liability under the Civil Damages Act. A right of action exists against the person causing intoxication of that person only by “illegally selling alcoholic beverages.” Minn.Stat. § 348.801 (1998) (emphasis added). As the supreme court recognized in Koehnen v. Dufuor, 590 N.W.2d 107 (Minn.1999), in discussing the legislative history of the Civil Damages Act, the legislature clearly recognized the difference between sales and gifts because in 1977 the legislature amended the act by deleting the word “giving” from the statute.

It certainly is possible to construct scenarios involving cover charges and beer tickets where liability could exist under the Civil Damages Act, but those are not our *391facts. Here, there is no dispute that the medium of exchange then prevailing for the sale of alcohol in exchange of tickets for beer was not used and beer was simply given to Thompson over an extended period of time while he was obviously intoxicated. There is thus no illegal sale of an alcoholic beverage and no liability can be imposed on appellant. If the legislature had intended that commercial vendors incur liability for the illegal provision or gift of alcohol it could have done so. It did not.

Under these circumstances, while the result is unsatisfactory from an equitable viewpoint, I believe the conclusion is inescapable that no liability under the Civil Damages Act attaches to appellant and reversal is required.