Osborne v. Twin Town Bowl, Inc.

GILDEA, Justice.

Appellants, Michael Riley’s survivors, bring this action under Minn.Stat. § 340A.801 (2006) (“Dram Shop Act”), contending that respondent’s illegal sale of alcohol to Riley caused them injury. Specifically, appellants allege in the complaint that because of respondent’s illegal sale of alcohol, Riley’s judgment was so impaired that he thought he could safely avoid arrest by jumping off a bridge and into the river below. Rather than swimming to safety, Riley drowned, and appellants allege that they suffered injury as a result of his death. After the conclusion of discovery, respondent successfully moved for summary judgment.

The majority reverses the entry of summary judgment and grounds this result on two faulty premises. First, the majority holds that intoxication does not need to be the sole cause of injuries for liability to attach under the Dram Shop Act. Second, the majority holds that expert testimony is not necessary to create a fact issue on causation in this case because the general effects of alcohol are within the common knowledge of jurors. The majority accordingly concludes that there is a genuine issue of fact on the causation question presented in this case. I disagree with both of the premises that the majority uses to support its conclusion. In my view, appellants did not sustain their burden at the summary judgment stage to create a genuine issue as to whether the intoxication caused Riley’s death. I would affirm.

I.

Summary judgment is to be awarded to the defendant when the plaintiffs evidence on an essential element of his claim does not create a genuine issue of material fact as to that element. See Minn. R. Civ. P. 56.03 (“Judgment shall be rendered forthwith if * * * there is no genuine issue as to any material fact”); DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn.1997) (holding that “there is no genuine issue of material fact for trial when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue”); Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn.1995) (“A defendant is entitled to summary judgment as a matter of law when the record reflects a complete lack of proof on an essential element of the plaintiffs claim.”). The element at issue in this case is causation within the context of the Dram Shop Act.

A.

The element of causation under the Dram Shop Act is met if the plaintiff proves that she incurred “pecuniary loss * * * by the intoxication of another person.” Minn.Stat. § 340A.801, subd. 1. To sustain her burden of proof under the Dram Shop Act, we have said that the plaintiff must show a “causal connection between the intoxication and the injury” that is more than simply an occasion for the injury. Kryzer v. Champlin Am. Legion No. 600, 494 N.W.2d 35, 37-38 (Minn.1992) (citing Childs v. Standard Oil Co., 149 Minn. 166, 170, 182 N.W. 1000, 1001 (1921) (expressly rejecting the “but for” test for causation)).

With respect to the element of causation, we long ago recognized that “[i]f the facts furnish no sufficient basis for inferring which of several possible causes produced the injury, a defendant who is responsible for only one of such possible *383causes cannot be held liable.” Alling v. Nw. Bell Tel. Co., 156 Minn. 60, 63, 194 N.W. 313, 315 (1923). More recently, in E.H. Renner & Sons, Inc. v. Primus, 295 Minn. 240, 243, 203 N.W.2d 832, 835 (1973), we cited Ailing and said that if the evidence supports “two or more inconsistent inferences so that one inference does not reasonably preponderate over the others, the complainant has not sustained the burden of proof on the proposition * * * [and][i]t becomes the duty of the trial court to direct a verdict” in favor of the defendant. See also Wall v. Fairview Hosp., 584 N.W.2d 395, 405-08 (Minn.1998) (applying E.H. Renner and affirming the district court’s direction of verdict on the statutory claim in favor of defendant); Lubbers, 539 N.W.2d at 402 (noting that where the record requires “speculation and conjecture” as to the cause of the accident, summary judgment should be awarded to defendant). The majority seemingly concludes that these cases do not apply to the Dram Shop Act. I disagree.

The majority holds that the dram shop owner is liable even if the intoxication was only one of several contributing causes of the injury. In my view, the broad formulation of causation under the Dram Shop Act that the majority applies in this case is not consistent with the language of the statute or with our precedent.

The statutory language does not support the majority’s expansion of liability. The statute provides a right of action when a person incurs loss “by the intoxication.” Minn.Stat. § 340A.801, subd. 1 (emphasis added). The Dram Shop Act does not say that a plaintiff has a right of action if she incurs damage by intoxication and something else. We are to “strictly construe[ ]” the Dram Shop Act so as not to enlarge it “beyond its definite scope.” Urban v. Am. Legion Dep’t of Minn., 723 N.W.2d 1, 6 (Minn.2006) (internal quotation omitted). The majority’s expansive view of causation is not a strict construction of the statute, but is one that extends the Dram Shop Act well “beyond its definite scope.” Id.1

The majority’s new rule is also inconsistent with our precedent. If, as the majority concludes, intoxication could be one of many causes for the injury, it seems to me that the intoxication becomes simply the occasion for the injury. But that is precisely what we said in Kryzer was not sufficient evidence of causation to sustain an action under the Dram Shop Act. 494 N.W.2d at 37 (noting that “intoxication may have been the occasion for [Kryzer’s] ejection from the legion club, but it did not cause” the injury).

The majority attempts to find support for its new rule in Lefto v. Hoggsbreath Enterprises, Inc., 581 N.W.2d 855, 857 (Minn.1998). The majority contends that Lefto stands for the proposition that intoxi*384cation needs to have been only one of several “contributing causes” of an injury under the statute. The majority over reads Lefto. The issue in Lefto was not what caused the plaintiffs injuries. The issue in Lefto was whether the plaintiffs were proper victims under the statute. Id. at 857 (noting that question presented required construction of “the Act’s term ‘other person’ ”). Lefto did not present an occasion for us to address causation under the Dram Shop Act and it provides no basis for the broad causation standard the majority engrafts onto the statute.

The majority also relies on Kryzer and notes that the illegal sale of alcohol does not have to be the sole cause of the intoxication. But that is a different question from the one presented in this ease. The issue in this case is not who provided alcohol to Riley or how he became intoxicated. The issue in this case is what caused the plaintiffs injuries. The sentence from Kryzer that the majority appears to quote does not relate to the causation question presented in this case, which is whether the intoxication caused the damage. Rather, the sentence the majority selectively quotes addresses whether the liquor illegally sold caused the intoxication. See Kryzer, 494 N.W.2d at 36 (noting that “the liquor illegally sold need not be the sole cause of intoxication, that it is enough if it be a proximately contributing cause.” (internal quotation marks omitted)).2 The relevant sentence from Kryzer provides: “Thirty-seven years ago this court ruled that a claimant seeking recovery pursuant to the civil damage act must show that the defendant illegally sold intoxicating liquor which caused intoxication and ‘that such intoxication was the proximate cause of plaintiffs injuries.’ ” Id. (quoting Strand v. Village of Watson, 245 Minn. 414, 419, 72 N.W.2d 609, 614 (1955) (emphasis added)).3 In my view, this formulation of the proximate cause rule is in accord with Ailing and its progeny, and I would apply the rule of law from those cases here.4

B.

Appellants’ theory on causation is that Riley’s intoxication proximately caused his death. The question of causation is often one for the jury. But when the issue of causation presents a matter that is outside the common understanding of lay people, we require expert testimony to support the element of causation in order for a plaintiff to get her case to the jury. See, e.g., Gross v. Victoria Station Farms, Inc., 578 *385N.W.2d 757, 762 (Minn.1998). This is such a case in my view.

The majority concludes that a genuine issue exists on the causation question because “the effects of intoxication are within common knowledge of lay people.”5 General knowledge about the effects of alcohol is not enough to answer the causation question in this case, because, as even the majority seems to concede, this is not a typical case. This is not case about driving conduct, such as the example the majority poses about an intoxicated driver running a red light because alcohol has impacted his driving ability. This case is also unlike Kvanli v. Village of Watson, 272 Minn. 481, 485, 139 N.W.2d 275, 278 (1965), where the jury, based on general knowledge about and its experience with the effects of alcohol, may have been able to infer that the reason an intoxicated person drove his car into a pedestrian was because his driving skills were impaired by alcohol. This case involves, as the majority notes, “unconventional facts,” and raises a causation question that is, as the majority seems to concede, “more complicated than the more common drunk driver or bar fight scenarios” presented in our earlier cases.

This case is complicated because the evidence revealed during discovery shows that Riley had a long history of substance abuse, and that this abuse had taken its toll on his system before the night of his death. The psychologist appellants retained described Riley as someone who “had the classic traits of marijuana abusers, including * * * lack of concern for situations, with what appeared to be a very nonchalant attitude towards outcomes or consequences affecting his life.” The record does not explain precisely how his history of substance abuse impacted Riley’s decision-making ability, but the record does show that Riley was predisposed toward risky behavior. The record also shows that Riley was predisposed to attempt to evade police and that, prior to his death, Riley had even bragged about his willingness to jump into a river and his ability to swim away in order to keep from being arrested. Riley discussed this method of escape with his mother, according to the record, and she reported trying to dissuade her son from attempting such an escape should he find himself in that position because she told him it was impossible. Testimony from law enforcement also confirmed Riley’s predisposition. One officer said, “when you dealt with [Riley], either he was running or he was fighting.”

In addition, the psychologist appellants retained noted that Riley “appeared to *386have a tendency to defy and flee from police when encountering them and, especially, if he anticipated arrest. This occurred clearly on one arrest where he attempted to run and, when stopped, fought and bit the arresting police officer.” The psychologist also confirmed that shortly before his death, Riley told friends that he believed he could escape police by swimming across a river.6

This history makes this case more complicated than one where a jury’s general knowledge about and experience with the effects of alcohol might provide a rational basis for deciding causation. In my view, whether someone with Riley’s history made the decision that resulted in the loss of his life because he was predisposed toward risky behavior and running from police, or whether he made this decision because he was intoxicated, is beyond the common knowledge and understanding of lay people. The causation question presented in this case involves complicated mental processes of decision-making and, like other medical questions, requires expert testimony. Leaving this question to the jury unassisted by experts will lead only to speculation and conjecture, a result that is inconsistent with our precedent.

We have recognized that “[ejxpert opinion is required to prove causation if the issue is outside the realm of common knowledge.” Gross, 578 N.W.2d at 762; cf. Roche v. Lincoln Prop. Co., 175 Fed.App’x 597, 603 (4th Cir.2006) (affirming summary judgment of the plaintiffs personal injury negligence claim because without expert testimony the plaintiffs could not establish that mold in their apartment, as opposed to other potential causes, was the proximate cause of their alleged respiratory problems); Terry v. Caputo, 115 Ohio St.3d 351, 875 N.E.2d 72, 79 (2007) (reinstating summary judgment because the claimant could not establish a prima facie case of toxic exposure without expert testimony to establish causation); Creanga v. Jardal, 185 N.J. 345, 886 A.2d 633, 639-40 (2005) (finding that plaintiffs expert testimony, which consisted of a differential diagnosis that eliminated other potential causes for premature labor, was admissible on element of proximate cause). This case presents precisely the kind of causation question we described in Gross where we held that expert testimony on causation was necessary for a plaintiff to survive summary judgment. 578 N.W.2d at 762. We said there that when

a question involves obscure and abstruse medical factors such that the ordinary layman cannot reasonably possess well-founded knowledge of the matter and could only indulge in speculation in making a finding, there must be expert testimony, based upon an adequate factual foundation that the thing alleged to have caused the result not only might have caused it but in fact did cause it.

Id. (internal quotation omitted); see also Saaf v. Duluth Police Pension Relief Ass’n, 240 Minn. 60, 64-65, 59 N.W.2d 883, 886 (1953) (reversing judgment for plaintiffs where expert testimony did not “ex-clu[de] * * * other * * * possible causes” and did not provide a basis for the conclusion beyond “mere possibility, suspicion, or conjecture” that a blow to decedent’s jaw was “an initiating and proximate cause of’ his death).

*387In Gross, the plaintiff sought damages because his horse, Traffic Secretary, was lame. 578 N.W.2d at 758. The question was whether Traffic Secretary’s lameness was caused by an accident at the defendant’s boarding facility or because of earlier, unrelated problems. Id. at 762 (“The lengthy medical history of Traffic Secretary’s lameness before the [date of the] accident underscores the complex nature of Traffic Secretary’s current lameness and the need for competent expert opinions on the causation of such lameness.”). We held that expert testimony was required to sort out this causation question in order for the plaintiff to withstand a properly supported summary judgment motion. Id. Because the plaintiff offered no admissible expert testimony as to causation, we held that the defendant was entitled to summary judgment. Id.

Similarly in this case, appellants have provided no basis to determine whether someone with a predisposition toward risky behavior and a predisposition to evade police, like Riley, jumped into the river to avoid arrest because of his predisposition, because he was intoxicated, or because of some combination of the two. This question is beyond the realm of a lay person’s understanding of the effects of alcohol and therefore requires expert testimony to sort out the potential causes. See id.

Appellants offered a report from a psychologist. Significantly for purposes of the element of causation, appellants’ psychologist opined that Riley’s “apparent recent fascination with the idea of being able to escape arrest by jumping into and swimming across a river appeared to be a significant factor in his fatal decision on the night of his death.” (Emphasis added.) But respondent had nothing to do with — and cannot be held responsible under the Dram Shop Act for injuries caused by — Riley’s predisposition. Thus, consistent with the causation rule of Ailing, respondent is entitled to summary judgment.7

But, the majority says, in addition to his opinion that Riley’s predisposition was a “significant factor in his fatal decision,” appellants’ psychologist also opined that Riley’s “alcohol inebriation played a substantial part in bringing about his decision to jump into the river, and that he almost certainly would not have done so if sober.” The majority contends that these contradictory opinions — on the one hand, opining that Riley’s predisposition was a significant factor in his decision to jump, and on the other hand, opining that Riley’s intoxication played a substantial part in causing him to jump — provide sufficient evidence for appellants to survive summary judgment. The majority’s conclusion is inconsistent with our precedent that holds that a party cannot create an issue for trial by offering contradictory evidence on an element of that party’s claim. See Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534, 541 n. 4 (Minn.2001) (noting that “affidavits that contradict earlier deposition testimony generally may not be used to create a genuine issue of fact”).

In summary, this case is about what caused Riley to jump into the river on the night of his disappearance. If he jumped because he was intoxicated, respondent is responsible. But if Riley jumped because he thought it would provide him a means of escape from arrest, the Dram Shop Act does not make respondent liable for the damages resulting from that decision. Because appellants’ expert offered no testi*388mony that sorts out the potential causes, but simply identifies them, I would hold that appellants have not met their burden of proving that there is a genuine issue of material fact on the essential element of causation. See Lubbers, 539 N.W.2d at 402; Saaf, 240 Minn. at 64-65, 59 N.W.2d at 886; Alling, 156 Minn. at 63, 194 N.W. at 315. The district court therefore properly entered summary judgment in favor of respondent.

. The majority also relies on the fact that the Dram Shop Act was amended to provide that comparative fault principles operate under the statute. Minn.Stat. § 380A.801, subd. 3. The majority says that this addition means the legislature intended “to hold dram shop owners liable for an illegal sale of alcohol even if another party shares responsibility for causing the injury.” But the comparative fault statute relates to the fault of the plaintiff and there is no suggestion that the plaintiffs in this case were at fault in any way for the injuries they suffered. See K.R. v. Sanford, 605 N.W.2d 387, 390 (Minn.2000) (discussing plaintiff’s provision of alcohol to those who assaulted her). Thus, the comparative fault principles the legislature has written into the statute are not relevant to the causation question presented in this case. For the same reason, the majority’s discussion of the reference in Kvanli v. Village of Watson, 272 Minn. 481, 485, 139 N.W.2d 275, 278 (1965), to "[cjoncurring negligence” of the plaintiff is not relevant to the causation question presented here.

. The additional authorities the majority cites in note 3, Trail v. Village of Elk River, 286 Minn. 380, 390, 175 N.W.2d 916, 922 (1970), Hahn v. City of Ortonville, 238 Minn. 428, 432, 57 N.W.2d 254, 258-59 (1953), Fest v. Olson, 138 Minn. 31, 33-34, 163 N.W. 798, 798-99 (1917), are inapposite for the same reason.

. I acknowledge that the syllabus in Kryzer says: "[T]he liquor illegally sold need not be the sole cause of intoxication, but it must be a proximately contributing cause; and the intoxication caused by the illegal sale need not be the sole cause of injury, but it must be a proximately contributing cause.” 494 N.W.2d at 35-36. But we have long recognized that when a syllabus is different from the body of the opinion, we look to the body of the opinion and not to the syllabus. See Barrie v. N. Assur. Co., 99 Minn. 272, 273, 109 N.W. 248, 249 (1906) (noting that syllabus "is misleading” and looking to the text of the opinion for the rule).

.The majority attempts to distinguish the Ailing line of cases because these cases, according to the majority, "concern[ ] the sufficiency of the evidence and not the definition of proximate cause.” But the issue in this case is whether the plaintiff presented sufficient evidence on the causation element of their claim to survive summary judgment. Thus, the majority’s attempted distinction is unavailing.

. The majority cites two cases in support of its apparent conclusion that it is a matter of common knowledge that alcohol could have caused Riley to jump off the bridge into the river, State v. Griese, 565 N.W.2d 419 (Minn.1997), and Kvanli v. Village of Watson, 272 Minn. 481, 139 N.W.2d 275 (1965). These cases are inapposite. Griese was a criminal case and presented the question of whether the defendant could offer expert witness testimony to support his contention that he was too intoxicated to premeditate the murder. 565 N.W.2d at 425. We held that “expert testimony on how this intoxication may have impaired a defendant's capacity to form specific intent is inadmissible diminished capacity testimony.” Id. citing State v. Provost, 490 N.W.2d 93, 102 (Minn.1992). And in Kvanli "[ejxpert opinion was adduced to show that [the driver’s consumption of alcohol] would result in a blood alcohol content of .12 percent at the time of the collision with resultant loss of judgment and perception.” 272 Minn. at 485, 139 N.W.2d at 278. Neither case stands for the proposition that common knowledge about alcohol effects provides sufficient evidence of causation by itself to overcome a properly supported motion for summary judgment. Moreover, that common knowledge might be sufficient in the abstract does not answer the question in this case where, as explained below, there are additional complicating factors.

. The majority accuses me of misreading the psychologist's report and contends that Riley was only predisposed to engage in risky behavior if he was already intoxicated. The report does note that Riley’s predisposition was exaggerated when he had been abusing alcohol and other mind-altering substances, but importantly, it does not limit his predisposition to evade police only to those occasions when he was intoxicated from his use of alcohol.

. The majority seemingly suggests that I place too much reliance on the expert's report. I rely on it because it is in the record and respondent did not seek to strike it as speculative or otherwise inadmissible under Minn. R. Evid. 702.