Daryl Danielson, Appellant, vs. Cory Walquist, Respondent.

STATE OF MINNESOTA
 IN COURT OF APPEALS
 C7-99-414

Scott Hollermann, individually and as parent and natural guardian of
B. H., J. H., and C. H.,
Appellants,

vs.

River Roost, Inc.,
Respondent,

Riverside Coliseum,
defendant and third-party plaintiff,
Respondent,

Kevin Kraemer,
third-party defendant,
Respondent.

 Filed August 24, 1999
 Affirmed
 Peterson, Judge
Dissenting, Shumaker, Judge

Stearns County District Court
File No. C2981058

Wendy J. Cox, Wendy J. Cox, P.A., 1050 Carlson Center, 601 Carlson Parkway, Minnetonka, MN 55305 (for appellants)

Thomas A. Foster, Thomas A. Foster & Associates, Ltd., 100 South Fifth Street, Suite 450, Minneapolis, MN 55402 (for respondent River Roost, Inc.)

Robin C. Merritt, Melanie S. Ford, Hanft Fride, P.A., 1000 United States Bank Place, 130 West Superior Street, Duluth, MN 55802-2094 (for respondent Riverside Coliseum)

James L. Haigh, Cousineau, McGuire & Anderson, Chartered, 600 Travelers Express Tower, 1550 Utica Avenue South, Minneapolis, MN 55416 (for respondent Kevin Kraemer)

Considered and decided by Peterson, Presiding Judge, Short, Judge, and Shumaker, Judge.

 U N P U B L I S H E D   O P I N I O N

 PETERSON, Judge

On appeal from a summary judgment in a dram shop action, appellants challenge the district court's conclusion that they presented insufficient evidence to create a material fact issue regarding whether respondents River Roost, Inc. and Riverside Coliseum served liquor to respondent Kevin Kraemer when he was obviously intoxicated. We affirm.

FACTS

Jenny Hollermann was killed when a car Kraemer was driving crashed. Kraemer had spent the afternoon before the crash at a campsite with a group of friends drinking beer, boating, and tubing. Kraemer estimated that, between 1:00 p.m. and 7:00 p.m., he drank four or five 12-ounce beers, spacing his consumption about evenly throughout the period. Because he was busy with dinner, Kraemer did not think he drank any beer from 7:00 p.m. until about 8:30 p.m. or 9:00 p.m.

At about 9:00 p.m., the group went to a resort bar where, according to Kraemer's testimony, he drank one or two cans of 3.2 beer. Sometime between 11:30 p.m. and 12:00 a.m., the group went to Riverside Coliseum, and Kraemer testified that he drank one beer there. The group stayed at Riverside Coliseum for about 20 minutes and then went to River Roost. Kraemer testified that, at River Roost, he drank one full beer and part of a second one and that the group left there at about 1:20 a.m. The crash occurred at 1:36 a.m.

Kraemer testified that, before the accident, he had not been drunk since 1992 and that he never drank any alcohol other than beer. He described himself as a very light drinker who would go weeks and sometimes months without drinking any alcohol. Kraemer testified that, in the past, he knew he was starting to feel the effects of alcohol when he began feeling unstable and acting friendlier than usual. He testified that he was not feeling the effects of alcohol at Riverside Coliseum or River Roost.

Paul Singh, who arrived at Kraemer's campsite at about 3:00 p.m. and remained with the group through their stop at River Roost, testified that everyone in the group was drinking beer at the campsite, but he did not know how many beers Kraemer drank. Singh testified that everyone in the group was drinking at the resort bar, but his testimony did not indicate that he knew how many beers Kraemer drank there. He thought that everyone in the group drank one beer at Riverside Coliseum, and he saw Kraemer with a beer in his hand at River Roost.

Singh testified that toward the end of the night, Kraemer was acting more cut loose and uninhibited than earlier but not to the point where he was loud, boisterous, or obnoxious. According to Singh, Kraemer was not slurring his speech or staggering and was talking in a normal manner at River Roost. Singh believed that everyone in the group was obviously drunk when they left River Roost. He explained that his opinion that everyone in the group was obviously drunk was not based on people's conduct but on the assumption that everyone's alcohol concentration must have exceeded the legal limit of .10 because everyone had been drinking all afternoon and evening.

Other members of the group, some of whom admitted that they drank heavily and were feeling the effects of alcohol, testified that Kraemer did not appear intoxicated. Jackie Grindle testified that, at the River Roost, she saw Kraemer dancing and he did not stagger or stumble. She testified that, when she talked to him, he did not slur his speech, that he was not acting loud or obnoxious, and that he did not appear to her to be intoxicated at any time during the evening. Franklin Strom testified that Kraemer did not exhibit any signs of intoxication at Riverside Coliseum or River Roost. Strom testified that Kraemer was not stuttering, stammering, staggering, or acting loud or obnoxious. Jennifer Grindle testified that Kraemer did not appear to be drunk at any time before the accident. She testified that he was not acting loud or boisterous, staggering, slurring his speech, or showing any other signs of intoxication.

A blood sample taken from Kraemer at 2:42 a.m. showed an alcohol concentration of .15. Richard Jensen, Ph.D., evaluated Kraemer's state of intoxication as follows:

An individual such as Kevin Kraemer would have had to consume during the course of drinking on August 16 and August 17, 1997 twelve to thirteen 12-oz. beers in order to reach a blood alcohol concentration of 0.15 grams per 100 milliliters on a sample drawn at 2:42 AM on August 17, 1997. * * *

An individual such as Kevin Kraemer would have been demonstrating a blood alcohol concentration of approximately 0.11-0.13% by weight ethyl alcohol in his blood stream at the time he was served in the Riverside Coliseum on August 16, 1997. An individual such as Kevin Kraemer would have been demonstrating obvious signs of intoxication when served in the Riverside Coliseum at approximately 11:45 PM. These signs and symptoms of obvious intoxication may have included but would not be limited to slurred speech, bloodshot and watery eyes, unsteady walk or gait, changes in mood or behavior, and swaying while standing or walking.

* * * *

An individual such as Kevin Kraemer would have been demonstrating a blood alcohol concentration of approximately 0.13-0.14% by weight ethyl alcohol in his blood stream at the time he was last served in the River Roost on August 17, 1997. An individual such as Kevin Kraemer would have been demonstrating obvious signs of intoxication when last served in the River Roost at approximately 12:45 AM. These signs and symptoms of obvious intoxication may have included but would not be limited to slurred speech, bloodshot and watery eyes, unsteady walk or gait, changes in mood or behavior, and swaying while standing or walking.

D E C I S I O N

On appeal from a summary judgment, this court must review the record to determine whether any genuine issues of material fact exist and whether the district court erred in applying the law. In re Estate of Palmen, 588 N.W.2d 493, 495 (Minn. 1999). This court must view the evidence in the light most favorable to the nonmoving party. Id. But

summary judgment on a claim is mandatory against a party who fails to establish an essential element of that claim, if that party has the burden of proof, because this failure renders all other facts immaterial.

 Lloyd v. In Home Health, Inc., 523 N.W.2d 2, 3 (Minn. App. 1994).

A party injured by another person's intoxication may bring an action against an entity that caused the person's intoxication by illegally selling alcoholic beverages. Minn. Stat. § 340 A. 801, subd. 1 (1996). It is illegal to sell alcoholic beverages "for the use of an obviously intoxicated person." Minn. Stat. § 340 A. 502 (1996). The supreme court has defined "obvious intoxication" as follows:

[T]here must be such outward manifestation of intoxication that a person using * * * reasonable powers of observation can see or should see that such person has become intoxicated.

 Strand v. Village of Watson, 245 Minn. 414, 422, 72 N.W.2d 609, 615 (1955).

Although a blood test may be admitted to assist the trier of fact in determining whether the buyer was obviously intoxicated, the test is insufficient in and of itself to establish a prima facie case of obvious intoxication.

Gutwein v. Edwards, 419 N.W.2d 809, 811-12 (Minn. App. 1988). There must be additional evidence from which it could be reasonably inferred that an individual was obviously intoxicated. Id. at 812. Circumstantial evidence may be sufficient to create a fact question regarding obvious intoxication, even absent direct evidence or witness testimony that the person was obviously intoxicated when he was sold liquor. Larson v. Carchedi, 419 N.W.2d 132, 134 (Minn. App. 1988). The totality of the direct and circumstantial evidence must be considered in determining whether the evidence is sufficient to create a fact question regarding obvious intoxication. Id. at 136.

There was no direct evidence that, while at Riverside Coliseum or River Roost, Kraemer was showing signs of obvious intoxication, such as slurring his speech, staggering, or being loud or obnoxious. Singh testified that, toward the end of the night, Kraemer was acting more cut loose and uninhibited than earlier. But Singh also testified that Kraemer was talking in a normal manner at River Roost, that Kraemer was not loud, boisterous, or obnoxious, and that Kraemer was not slurring his speech or staggering. There is no basis to conclude that someone using reasonable powers of observation who had not seen Kraemer earlier in the evening could have seen the change in demeanor that Singh perceived as being more cut loose and uninhibited behavior. Because Kraemer stayed at each bar for only a short period of time, and Singh's testimony does not indicate that Kraemer's demeanor changed while he was at either bar, Singh's testimony would not support a conclusion that Kraemer exhibited an outward manifestation of intoxication at either bar.

In cases in which the supreme court and this court have concluded that the evidence was sufficient to create a fact question regarding obvious intoxication, the evidence of obvious intoxication was stronger than in this case. See, e.g., Strand, 245 Minn. 416, 72 N.W.2d at 612 (evidence that individual's blood alcohol concentration was .27 and the accident occurred 45 minutes after he left the bar, testimony by expert on behavior exhibited by individuals with .27 alcohol concentration, and testimony of a witness who could "tell [the individual] had been drinking" created fact question regarding obvious intoxication); Jaros v. Warroad Mun. Liquor Store, 303 Minn. 289, 296-97, 227 N.W.2d 376, 381-82 (1975) (evidence that individual was a heavy drinker, was in the bar for at least 5 1/2 hours, was disoriented shortly before leaving the bar, and the accident itself was sufficient to prove obvious intoxication); Gutwein, 419 N.W.2d at 811-12 (appellant's .22 blood-alcohol level, the length of time - over three hours - spent at the bar, his consumption of 6 to 8 beers or more there, his erratic driving, and the circumstances surrounding his accident created at least a minimal fact question); Larson, 419 N.W.2d at 135-36 (evidence that individual consumed 20 to 50 shots of whisky plus other liquor, drank all afternoon and evening, drove erratically, had a .17 alcohol concentration at least one hour after he consumed his last drink and would have had a .20 to .30 alcohol concentration when he was served at bars was sufficient to create a fact question).

Jensen estimated that Kraemer's alcohol concentration would have been at most .13 at Riverside Coliseum and at most .14 at River Roost. Although there was evidence that Kraemer was speeding when the crash occurred, there is no evidence that Kraemer exhibited signs of intoxication in his manner of driving. The police officers' accident report does not indicate that Kraemer showed any signs of intoxication other than an odor of an alcoholic beverage emanating from him. Jensen's statements regarding the signs of intoxication Kraemer may have been exhibiting at Riverside Coliseum and River Roost were based on general scientific principles, not on knowledge of how alcohol affected Kraemer specifically. There was not evidence that Kraemer exhibited any of these signs of intoxication at either bar. See Strand, 245 Minn. at 420, 72 N.W.2d at 615 ("outward manifestation of intoxication varies with individuals as it does with the physical condition of the individual").

Kraemer was at each bar for only a short time, less than one hour at Riverside Coliseum and about one hour at River Roost. He did not have much to drink at either place, one beer at Riverside Coliseum and about 11/2 at River Roost. And, while at the bars, he did not show signs of intoxication such as slurring his speech, staggering, or being loud and obnoxious. The district court did not err in concluding that the totality of the direct and circumstantial evidence was insufficient to create a material fact question regarding whether Kraemer was obviously intoxicated and in granting summary judgment in favor of Riverside Coliseum and River Roost.

Affirmed.

 SHUMAKER, Judge (dissenting)

I respectfully dissent and would reverse. I do so not because the evidence appellant offers is weighty and compelling; for it is not. But that's not a court's concern on summary judgment. The test is simple and minimal: Is there a genuine fact issue that, in our tradition of jurisprudence, is better left for the trier of fact to decide?

When I assemble the myriad of summary judgment principles that caselaw has developed, I am persuaded that this action should in fairness survive a summary judgment motion. On summary judgment a court cannot weigh evidence. Fairview Hosp. & Health Care Servs. v. St. Paul Fire & Marine Ins. Co., 535 N.W.2d 337, 341 (Minn. 1995). A court cannot grant a summary judgment merely because the case might not survive a directed verdict motion. Carl v. Pennington, 364 N.W.2d 455, 457 (Minn. App. 1985). Even if it appears unlikely that a party will prevail at trial, a court still cannot grant summary judgment. City of Coon Rapids v. Suburban Eng'g, Inc., 283 Minn. 151, 157, 167 N.W.2d 493, 497 (1969). It is improper for the court to examine the quantum of evidence on a summary judgment motion. Murphy v. Country House, Inc., 307 Minn. 344, 351, 240 N.W.2d 507, 512 (1976). And any doubt as to the existence of a genuine fact issue must be resolved in favor of its existence. Rathbun v. W. T. Grant Co., 300 Minn. 223, 230, 219 N.W.2d 641, 646 (1974).

Moreover, I cannot distinguish this case in any material way from Strand v. Village of Watson, 245 Minn. 414, 72 N.W.2d 609 (1955). In that dram shop action, all but one witness testified that the driver showed none of the usual signs of intoxication. His speech was clear and coherent; his responses were excellent; he was not loud or boisterous; and "he showed no results of the drinks." Id. at 415, 72 N.W.2d at 612. The only contrary witness testified that he could tell the driver had been drinking by looking at him but he did not believe that he was drunk. Noting that the evidence was "far from convincing," the supreme court held nevertheless "we think that it is sufficient so that, coupled with a proper instruction to the jury, it presented a fact question." Id. at 424, 72 N.W.2d at 616.

At the very least, there is a legitimate doubt as to the existence of a fact issue here. That is enough to prevent the grant of a summary judgment dismissing the action.