Forsman v. Blues, Brews & Bar-B-Ques, Inc.
820 N.W.2d 748
| N.D. | 2012Background
- Forsman sues Muddy Rivers and Espinoza for dram shop and negligence after Espinoza allegedly intoxicated at a private party and pushed Forsman, causing injury.
- Muddy Rivers allegedly provided alcohol to an obviously intoxicated Espinoza; Forsman claims Espinoza injured her while Forsman cared for an intoxicated guest.
- Forsman alleged bar manager Solberg attempted to eject Espinoza earlier; she filed police complaints; district attorney did not pursue aggravated assault.
- District court granted Muddy Rivers’ motion for judgment as a matter of law, dismissing both the dram shop claim and the premises liability claim.
- Trial record showed Forsman testified Espinoza appeared obviously intoxicated and was involved in a prior commotion at the party.
- Appellate court reverses the JMOL on the dram shop claim but remands for further proceedings; hearsay and rebuttal issues are not addressed on the merits at this stage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of dram shop evidence | Forsman; Muddy Rivers knowingly served to an obviously intoxicated Espinoza | Muddy Rivers; no evidence Espinoza was served while obviously intoxicated | JMOL improper; issue of fact remains regarding knowledge of intoxication |
| Premises liability duty under § 9-10-06 | Forsman can pursue negligence for unsafe premises | Different elements from dram shop; no entitlement to JMOL | Not decided on remand; premises liability claim allowed to proceed |
| Hearsay in police reports | Police reports contain admissible statements for impeachment/refreshing | Reports barred for case-in-chief; some statements may be admissible | Issue not resolved on appeal; vacated for remand consideration |
| Rebuttal witness objection | Evans should be permitted to challenge inconsistencies | Witness not on list; procedural posture uncertain | Not addressed on merits; not necessary to decide now |
Key Cases Cited
- Stewart v. Ryan, 520 N.W.2d 39 (N.D.1994) (dram shop liability elements; obviously intoxicated person)
- Born v. Mayers, 514 N.W.2d 687 (N.D.1994) (dr am shop liability origins; knowledge standard)
- In re Estate of Stave, 2007 ND 53, 729 N.W.2d 706 (N.D.2007) (standard for JMOL review; appellate standard)
- Symington v. Mayo, 1999 ND 48, 590 N.W.2d 450 (N.D.1999) (jurisprudence on evidentiary inferences and trial view)
- Saltsman v. Sharp, 2011 ND 172, 803 N.W.2d 553 (N.D.2011) (premises liability duty; duty to exercise ordinary care)
- Botner v. Bismarck Parks & Recreation Dist., 2010 ND 95, 782 N.W.2d 662 (N.D.2010) (duty and breach in premises liability)
- Doan v. City of Bismarck, 2001 ND 152, 632 N.W.2d 815 (N.D.2001) (premises liability standard; duty generally legal question)
- Fast v. State, 2004 ND 111, 680 N.W.2d 265 (N.D.2004) (premises liability foreseeability; duty to mitigate)