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Carol Forsman v. Blues

August 30, 2012

CAROL FORSMAN,
PLAINTIFF AND APPELLANT
v.
BLUES, BREWS AND BAR-B-QUES, INC., DBA MUDDY RIVERS, AND AMANDA ESPINOZA,
DEFENDANTS
BLUES, BREWS AND BAR-B-QUES, INC., DBA MUDDY RIVERS, APPELLEE



Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Debbie Gordon Kleven, Judge.

The opinion of the court was delivered by: Crothers Justice.

N.D. Supreme CourtForsman v. Blues, Brews and Bar-B-Ques, Inc., 2012 ND 184 This opinion is subject to petition for rehearing.

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REVERSED AND REMANDED.

Opinion of the Court by Crothers, Justice.

Forsman v. Blues, Brews and Bar-B-Ques, Inc.No. 20110356

[¶1] Carol Forsman appeals from a judgment dismissing as a matter of law under N.D.R.Civ.P. 50(a) her dram shop and negligence action against Blues, Brews and Bar-B-Ques, Inc., doing business as Muddy Rivers, and Amanda Espinoza. Forsman argues the district court erred in granting Muddy Rivers' motion for judgment as a matter of law, claiming she introduced sufficient evidence to establish Muddy Rivers knowingly provided alcoholic beverages to an obviously intoxicated person, Espinoza, and Espinoza caused Forsman's injuries. Forsman also claims the court erred in sustaining Muddy Rivers' hearsay objections to several police reports and she was denied the opportunity to call a rebuttal witness to challenge inconsistent statements by witnesses associated with Muddy Rivers. We conclude the court erred in granting judgment as a matter of law on Forsman's dram shop claim, and we reverse and remand for further proceedings.

I

[¶2] Forsman sued Muddy Rivers and Espinoza jointly and severally, alleging Forsman was invited to a private party at Muddy Rivers, a Grand Forks bar, on February 15, 2010; Muddy Rivers knowingly provided alcoholic beverages to an obviously intoxicated guest at the party, Espinoza; Espinoza assaulted, physically attacked or pushed Forsman to the ground while Forsman was caring for an intoxicated individual at the party; and Forsman suffered serious injuries to her leg as a result of Espinoza's actions. Forsman alleged that before she was injured, Eric Solberg, a bar manager at Muddy Rivers, attempted to "eject . . . Espinoza out of the bar" because she was highly intoxicated and causing problems with other guests. Forsman also alleged Muddy Rivers was responsible for her injuries under N.D.C.C. § 9-10-06, which requires a person to exercise ordinary care or skill in the management of the person's property.

[¶3] Muddy Rivers answered and denied liability, but Espinoza did not answer the complaint or otherwise appear. Muddy Rivers filed a pre-trial motion to prevent the introduction into evidence of all hearsay statements in police reports prepared after police officers investigated the incident. The district court ruled Forsman could not use any hearsay statements in the reports in her case-in-chief, but could use those statements for impeachment.

[¶4] At trial, Forsman called several witnesses who were present at the party. Forsman presented evidence that Muddy Rivers provided an open bar for its off-duty employees and guests, including a "shot-drinking" contest that was primarily participated in by off-duty employees. Solberg, the bar manager, testified he was at the party and participated in the contest. Solberg also testified Muddy Rivers used three bartenders at the party, including a regular customer and his son, but Solberg did not supervise the bartenders.

[¶5] Forsman testified she was helping Richard Martin, a Muddy Rivers' employee attending the party, care for an intoxicated person, Rose Christianson, when Espinoza's actions resulted in Forsman being pushed to the ground. Christianson was a Muddy Rivers' employee and had invited Espinoza to the party. Forsman testified she was "one hundred percent sure" Espinoza pushed her off her chair to the ground, resulting in a leg fracture. According to Forsman, she was not able to get up and two Muddy Rivers' employees thereafter grabbed Espinoza. Martin testified he heard a "voice say something to the effect of 'What are you doing to my friend?'" and heard a commotion but did not see what happened. Martin testified he then heard Forsman ask for help and saw her on the floor. Forsman testified she saw Espinoza earlier at the party when there was some "commotion" and Solberg asked Espinoza to leave the party, but she did not leave. Forsman also testified she saw Espinoza drinking beer at Muddy Rivers earlier that night and "notice[d] . . . signs that would suggest that [Espinoza] was obviously intoxicated." Forsman testified she filed a complaint against Espinoza with the Grand Forks Police Department and two police officers, Detective Travis Benson and Officer Holweger, investigated the incident. However, the Grand Forks County State's Attorney's Office declined to pursue aggravated assault charges against Espinoza.

[ΒΆ6] After Forsman rested her case, Muddy Rivers moved for judgment as a matter of law under N.D.R.Civ.P. 50, arguing Forsman failed to present any evidence showing Muddy Rivers knowingly provided alcoholic beverages to an obviously intoxicated Espinoza. Muddy Rivers claimed that although it did not represent Espinoza, no evidence established Espinoza injured Forsman and it was appropriate to also dismiss Forsman's claim against Espinoza. The district court granted Muddy Rivers' motion for judgment as a matter of law, ruling Forsman failed to present any evidence that Muddy Rivers served alcoholic beverages to Espinoza while she was obviously intoxicated. The court also ruled Forsman's negligence claim for unsafe premises was a dram shop claim and, even if that claim was for negligence, no testimony established ...


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