Ricky L. Barron, Appellant, vs. Fransen, Inc., d/b/a Gluek Brewing Company, Respondent, Hirshey Investment Corporation, d/b/a Barney's Underground, Respondent.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1998).

Ricky L. Barron,
Appellant,

vs.

Fransen, Inc.,
d/b/a Gluek Brewing Company,
Respondent,

Hirshey Investment Corporation,
d/b/a Barney's Underground,
Respondent.

Hennepin County District Court
File No. PI-99-1251

Brian J. Love, Hauer, Fargione & Love, P.A., 526 Parkdale Plaza, 1660 South Highway 100, Minneapolis, MN 55416 (for appellant)

Peter E. Lind, Steven D. Pattee, Waldeck & Lind, P.A., 730 TCF Tower, 121 South Eighth St., Minneapolis, MN 55402 (for respondent Fransen)

Paul A. Banker, Arthur, Chapman, Kettering, & Smetak, P.A., 500 Young Quinlan Building, 81 South Ninth St., Minneapolis, MN 55402 (for respondent Hirshey)

Considered and decided by Peterson, Presiding Judge, Randall, Judge, and Klaphake, Judge.

On January 22, 1998, appellant Ricky Barron was the first person to come upon the scene of an accident. The accident had occurred on Interstate 394 when Matthew Davis's vehicle struck another vehicle during a lane change, spun out of control, and collided with the median barrier. Barron parked his vehicle on the right shoulder and crossed the lanes of traffic on foot to reach Davis's stopped vehicle. As he was leaning in the passenger window to take the passenger's pulse, another vehicle struck Davis's vehicle. Barron was thrown backward and sustained serious internal injuries.

Barron thereafter brought this action under the Civil Damage Act against respondent Fransen, Inc., d/b/a Gluek Brewing Company and respondent Hirshey Investment Corporation, d/b/a Barney's Underground, who had served intoxicating liquor to Davis prior to the accident. See Minn. Stat. § 340 A. 801, subd. 1 (1998). Respondents moved to dismiss, arguing that there was no causal link between Davis's intoxication and Barron's injuries. Barron appeals from the district court's dismissal of the action.

Because Davis's intoxication did not proximately cause Barron's injuries as a matter of law, we affirm.

The Minnesota Supreme Court has explicitly instructed this court that to establish liability under the Civil Damage Act, the intoxication must proximately cause the plaintiff's injuries. Kryzer v. Champlin Am. Legion No. 600, 494 N.W.2d 35, 36-37 (Minn. 1992). The court rejected the "but for" causation test and made a distinction between the "occasion" and the "cause" of an injury. Id. at 37.

Thus, while the intoxication of the plaintiff in Kryzer may have been the "occasion" for her ejection from the bar, it did not "cause" the injury to her wrist; rather, the act of the bar employee who ejected the plaintiff was the cause of her injury. Id. Similarly, in Kunza v. Pantze, 531 N.W.2d 839 (Minn. 1995), rev'g, 527 N.W.2d 846 (Minn. App. 1995), by reversing this court's decision in a per curiam opinion based solely on Kryzer, the supreme court intimated that while the plaintiff's former husband in Kunza may have been intoxicated, his intoxication did not "cause" the plaintiff's injuries, which were sustained when she opened the door of the couple's van and exited while the van was moving. See id., 527 N.W.2d at 847.

In this case, after he came upon the accident scene, Barron decided to pull over, stop his car, cross the lanes of traffic on foot, and attempt to render assistance to Davis's passenger. Davis's intoxication was merely the "occasion" and not the "cause" of Barron's injuries. Although Barron might argue that Davis's intoxication caused Barron to place himself in a position of peril, that connection is too remote; the law requires a more direct connection, as illustrated by Kryzer and Kunza.

The district court's dismissal of Barron's complaint is affirmed.

 Affirmed.