Seay v. Seay
2012 ND 179
| N.D. | 2012Background
- Forsman sued Muddy Rivers (dba Muddy Rivers) and Espinoza for dram shop and negligence after a private party at Muddy Rivers on Feb. 15, 2010 left Forsman injured.
- Allegations: Muddy Rivers knowingly provided alcohol to an obviously intoxicated Espinoza, who assaulted Forsman.
- Forsman claimed Espinoza was intoxicated earlier in the night and that Solberg attempted to eject her.
- Muddy Rivers moved for judgment as a matter of law; Espinoza did not answer; the court granted JMOL.
- Evidence at trial included an open bar at the event, off‑duty employees, and Forsman describing Espinoza’s obvious intoxication.
- On appeal, the court reversed JMOL and remanded for further proceedings, addressing dram shop and related premises liability issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Dram shop: sufficient evidence of knowingly serving an intoxicated person | Forsman relies on Espinoza’s obvious intoxication and Forsman’s testimony she observed signs | Muddy Rivers contends no evidence showed they served Espinoza while obviously intoxicated | Sufficient evidence; JMOL reversed and remanded |
| Premises liability under N.D.C.C. § 9-10-06 | Duty to exercise ordinary care and breach by Muddy Rivers caused Forsman’s injuries | Negligence insufficient under current record | Remanded allowed Forsman to pursue negligence claim |
| Hearsay in police reports and use for impeachment | Police report statements should be usable for impeachment/certain refreshers | Court limited hearsay and this record is unclear for review | Record unclear; issues not reviewed on appeal; declined to address evidentiary points |
| Rebuttal witness to challenge Muddy Rivers’ witnesses | Evans should be allowed as rebuttal to testify about invitation and service to Espinoza | Witness not on list; procedural posture uncertain | Not addressed on appeal due to remand posture |
Key Cases Cited
- Stewart v. Ryan, 520 N.W.2d 39 (ND 1994) (dram shop liability elements and knowingly provision standard)
- In re Estate of Stave, 729 N.W.2d 706 (ND 2007) (standard for appellate review of JMOL determinations)
- Symington v. Mayo, 590 N.W.2d 450 (ND 1999) (evidentiary and burden-shifting principles in trials)
- Saltsman v. Sharp, 803 N.W.2d 553 (ND 2011) (duty and premises liability framework; comparative fault context)
- Botner v. Bismarck Parks & Recreation Dist., 782 N.W.2d 662 (ND 2010) (duty to exercise ordinary care under premises liability)
- Doan v. City of Bismarck, 632 N.W.2d 815 (ND 2001) (duty and standard of care in premises liability)