Michelle Friesen, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1198

Michelle Friesen,
Appellant,

vs.

VFW Post 2793,
Respondent,

Jesse F. Lunak, et al.,
Defendants.

Filed February 10, 2020
Affirmed
Smith, John, Judge*

Pennington County District Court
File No. 57-CV-17-906

Dean M. Salita, Schmidt-Salita Law Firm, Minneapolis, Minnesota (for appellant)

Kendra E. Olson, Pemberton Law, PLLP, Fergus Falls, Minnesota (for respondent)

Considered and decided by Jesson, Presiding Judge; Ross, Judge; and Smith, John,
Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
SMITH, JOHN, Judge
This appeal arises from the death of Bradley Friesen, who was fatally injured outside
VFW Post 2793 in Thief River Falls. Appellant Michelle Friesen, Bradley Friesen’s wife
and next-of-kin, sued respondent VFW Post 2793 (VFW) for wrongful death, pleading an
innkeeper-negligence claim. We affirm the district court’s grant of summary judgment
because VFW lacked notice of any assailant’s propensity for violence that made the injuries
to the decedent Bradley Friesen foreseeable under a theory of innkeeper negligence.
FACTS
Bradley Friesen and three of his friends were socializing at VFW. F riesen began
speaking with an off -duty gaming manager. At some point the conversation became
heated. Friesen made derogatory comments and used racial slurs towards the gaming
manager. The gaming manager told Friesen to leave and told the commander of the VFW
to get Friesen away from him. The commander stood between the gaming manager and
Friesen. The gaming manager ultimately walked away from the interaction.
Meanwhile, Friesen continued to be “argumentative and boisterous.” The bartender
told Friesen to leave the bar and threatened to call the police. Jesse Lunak, the doorman at
VFW, saw that Friesen seemed like he wanted to start a fight with “anybody and
everybody” in the bar. Lunak asked the commander if he should escort Friesen out. The
commander said yes. Shaun Brandt, a bar patron, and Lunak remove d Friesen from the
bar. Lunak grabbed Friesen from behind and walked him out. Brandt followed.

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Once outside, Lunak released Friesen. Lunak feared that Friesen was going to lunge
and throw a punch. Lunak did not see what happened next because it “happened so fast.”
Brandt pushed Friesen and Friesen fell backwards. Friesen’s head hit the ground and he
was knocked unconscious. Friesen died several days later.
Appellant sued VFW, Brandt, and Lunak. Under an innkeeper-negligence theory,
appellant claimed that VFW was negligent because it allowed Brandt and Lunak to escort
Friesen out of the bar after Friesen became belligerent and that Brandt and Lunak were
responsible for the injuries because Brandt pushed Friesen away. The district court granted
summary judgment for VFW because “VFW had no indication that Shaun Brandt was
aggressive or a violent person.”
D E C I S I O N
Appellant challenges the district court’s grant of summary ju dgment in favor of
VFW. “Summary judgment is appropriate when there is no genuine issue of material fact
and a party is entitled to judgment as a matter of law.” Senogles v. Carlson, 902 N.W.2d
38, 42 (Minn. 2017). A fact is material if it will affect t he outcome of the case. Zappa v.
Fahey, 245 N.W.2d 258, 259-60 (Minn. 1976). Summary judgment is “inappropriate when
reasonable persons might draw different conclusions from the evidence presented.”
Osborne v. Twin Town Bowl, Inc., 749 N.W.2d 367, 371 (Minn. 2008) (quotation omitted).
Appellate courts review a grant of summary judgment de novo. Commerce Bank v. W.
Bend Mut. Ins. Co. , 870 N.W.2d 770, 773 (Minn. 2015). When conducting this review,
“we view the evidence in the light most favorable to the nonmoving party . . . and resolve

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all doubts and factual inferences against the moving parties.” Rochester City Lines, Co. v.
City of Rochester, 868 N.W.2d 655, 661 (Minn. 2015).
The district court granted summary judgment for VFW after it determined that
“VFW had no indication that Shaun Brandt was aggressive or a violent person” or that
Brandt would cause injury to Friesen . Beca use VFW did not have notice of Brandt’s
violent propensities, the district court determined that the innkeeper -negligence claim
failed as a matter of law.
Bar owners owe their patrons a duty to “exercise reasonable care under the
circumstances to protect their patrons from injury.” Alholm v. Wilt, 394 N.W.2d 488, 490
(Minn. 1986). To prevail on a claim of innkeeper negligence, a plaintiff must prove four
elements:
(1) notice of the offending party’s “vicious or dangerous
propensities” by “some act or threat,” (2) adequate opportunity
for the innkeeper to protect the injured patron, (3) failure on
the part of the innkeeper to take reasonable steps to do so, and
(4) foreseeable injury.

Henson v. Uptown Drink, LLC , 922 N.W.2d 185, 190 (Minn. 2019) (citing Boone v.
Martinez, 567 N.W.2d 508, 510 (Minn. 1997)). Notice is a prerequisite to foreseeability.
Alholm, 394 N.W.2d at 491 n.5. If a bar owner had no notice of an assailant’s propensity
for violence, “no duty to protect arose,” because the assault would not have been
foreseeable to a reasonable bar owner. Id.
Appellant argues that the district court wrongly concluded that VFW did not have
notice and contends that the “totality of the circumstances” is sufficient to meet the first
element of innkeeper negligence. VFW argues that, for a claim of innkeeper negligence,

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notice requires a showing of the offending party’s vicious or dangerous propensities, not
that a “totality of the circumstances” shows a foreseeable injury. We agree.
As a preliminary matter, appellant argues that the correct standard for determining
notice for innkeeper liability is to consider the “totality of the circumstances.” Specifically,
appellant maintains that the totality of the circumstances put VFW on notice that an injury
could occur. But the “totality of the circumstances” at issue here is not whether there was
a risk of injury under the circumstances. Instead, the threshold issue here is whether VFW
had “notice of the offending party’s vicious or dangerous propensities by some act or
threat.” Boone, 567 N.W.2d at 510. Of particular importance here are the words
“offending party.”
Here, the offending party is Brandt. To survive summary judgment, appellant must
show that VFW was put on notice that Brandt had vicious or dangerous propensities by
some act or threat. Id. Appellant does not assert that Brandt had vicious or dangerous
propensities. And the record shows that Brandt did not exhibit such behaviors. There is
no testimony to indicate that Brandt threatened or acted in a ny way that would have put
VFW on notice that he would assault Friesen. Based on this record, even viewing the facts
in the light most favorable to appellant, VFW did not have notice of Brandt’s dangerous
propensities and no assault by Brandt could have been foreseeable to a reasonable bar
owner. See Bjerke v. Johnson , 742 N.W.2d 660, 664 (Minn. 2007) (requiring a court to
view facts in the light most favorable to non-moving party for summary judgment).
Appellant argues that Friesen’s own conduct put VFW on notice that Brandt might
injure him . Appellant’s argument to substitute the injured-party’s actions for the

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“offending party” is not persuasive for several reasons. First, the case appellant cites in
support of her position, Henson, does not actually support her position. Appellant contends
that Henson supports the notion that Friesen’s conduct in the bar put VFW on notice that
an injury was foreseeable, making summary judgment improper. By making this argument,
appellant generalizes “foreseeability” to include the foreseeability that any patron might be
injured by another patron, not that Brandt might injure Friesen. But Henson does not
support this generalized view of foreseeability. In Henson, the “notice” that leads to a duty
based on foreseeability is the “notice of the offending party’s vicious or dangerous
propensities by some act or threat.” 922 N.W.2d at 190 ( quotation omitted) ( emphasis
added). And in Henson, the analysis of the totality of the facts and circumstances that
might put the innkeeper on notice and result in a duty based on foreseeability focused on
the offending party’s conduct. See id. at 192-93 (offending party was in altercations with
other patrons, drinking, and threw a punch before the injury to the victim).
Second, the argument is inconsistent with the elements of innkeeper liability. The
first element clearly states that the prop rietor must be put on notice of the “offending
party’s” propensities. Id. at 190. The supreme court has denied liability where proprietors
have notice of other patrons’ dangerous propensities but not the offending party. See Filas
v. Daher, 218 N.W.2d 4 67, 470 (Minn. 1974) (concluding that there was “no reason for
[the proprietor] to foresee” the conduct of a thi rd party to a quarrel, and the proprietor
“cannot be held liable for failing to anticipate unusual or abnormal conduct”). As VFW
points out, there is no precedent for substituting notice of the dangerous propensities of the
injured party for that of the offending party.

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And finally, asserting that innkeeper liability is premised on any patron’s vicious or
dangerous propensities essentially creates strict liability, which the supreme court has
expressly rejected. Devine v. McLain, 306 N.W.2d 827, 831 (Minn. 1981).
In sum , where VFW did not have notice of Brandt’s vicious or dangerous
propensities, no duty to protect existed because the assault would not have been foreseeable
to a reasonable bar owner. Alholm, 394 N.W.2d at 491 n.5. Accordingly, the district court
did not err in granting VFW’s motion for summary judgment because without notice , a
claim for innkeeper negligence fails as a matter of law. Gilbertson v. Leininger , 599
N.W.2d 127, 130 (stating that “in the absence of a legal duty, the negligence claim fails”).1
Affirmed.

1 Appellant also argues that VFW failed to take reasonable steps to protect Friesen when it
failed to call the police and that an injury was foreseeable. Because we conclude that
appellant did not meet the notice requirement for innkeeper negligence, we do not reach
these arguments.