I get a version of this call a few times a year. A young person died or was badly hurt after drinking at somebody’s house. The family talked to a lawyer eighteen months ago, the lawyer said something about a dram shop notice deadline that had already blown, and the file went in a drawer. Now it is two and a half years out and the family wants a second opinion.
In a good number of those files the first lawyer was wrong, and wrong in the most expensive way a lawyer can be wrong — he declined a live case because he applied the wrong statute’s deadline. Minnesota’s social host statute, Minn. Stat. § 340A.90, is not part of the Civil Damages Act’s notice-and-limitations machinery. The 240-day notice in § 340A.802 is written to claims against licensees. The two-year bar in the same subdivision is written to § 340A.801 by name. A § 340A.90 claim runs on the six-year period for a liability created by statute, and the Court of Appeals said so in a published opinion in 2007.
That is the headline. The rest of the statute has more traps in it than the headline suggests, including a household carve-out that half the bar believes is in the civil statute and is not.
What § 340A.90 actually requires, clause by clause
The right of action, in the statute’s words:
A spouse, child, parent, guardian, employer, or other person injured in person, property, or means of support, or who incurs other pecuniary loss, by an intoxicated person under 21 years of age or by the intoxication of another person under 21 years of age, has for all damages sustained a right of action in the person’s own name against a person who is 21 years or older who:
(1) had control over the premises and, being in a reasonable position to prevent the consumption of alcoholic beverages by that person, knowingly or recklessly permitted that consumption and the consumption caused the intoxication of that person; or
(2) sold, bartered, furnished or gave to, or purchased for a person under the age of 21 years alcoholic beverages that caused the intoxication of that person.
Minn. Stat. § 340A.90, subd. 1(a). Then the boundary: “This paragraph does not apply to sales licensed under this chapter.” Section 340A.90 is the non-licensee statute. The bar belongs to § 340A.801; the finished basement belongs here.
Read the two clauses side by side and notice what is different about them, because the difference is doing work.
Clause (1) is a permission claim, and it requires no transfer of anything. The elements are control over the premises, a reasonable position to prevent the consumption, knowing or reckless permission of that consumption, and causation of the intoxication. Nobody has to hand anybody a drink. The parent who is upstairs asleep while the party runs downstairs is exactly the fact pattern the clause was written for, and the litigation in those cases is almost entirely about the middle two elements: was the adult in a reasonable position to prevent it, and was the permission knowing or reckless rather than merely negligent.
Clause (2) is a furnishing claim, and the text carries no mental state at all. “[S]old, bartered, furnished or gave to, or purchased for.” That is it. Compare § 340A.801, subd. 6, which preserves common law claims against an adult who “knowingly provides or furnishes,” and compare clause (1)’s own “knowingly or recklessly.” The legislature used a scienter word twice in this neighborhood and omitted it from clause (2). Also worth noting: the good-faith reliance on a valid ID that defeats a charge under § 340A.503, subd. 6(b) is available, by its own terms, only “[i]n a prosecution under subdivision 2, clause (1).” Where the legislature wanted that defense in a civil case, it said so in a separate sentence — § 340A.801, subd. 3a: “The defense described in section 340A.503, subdivision 6, applies to actions under this section.” Section 340A.90 has no counterpart to subdivision 3a, and nothing else like it.
Two more sentences in subdivision 1 that decide who gets paid:
- The intoxicated minor who caused the injury gets nothing. Subd. 1(c): “An intoxicated person under the age of 21 years who caused the injury has no right of action under this section.” Hold that thought — it is not the end of that person’s case, and I come back to it below.
- A minor’s recovery is directed. Subd. 1(b): damages recovered by a minor “must be paid either to the minor or to the minor’s parent, guardian, or next friend as the court directs.”
And subdivision 2 closes the door on first-party carriers: there is no recovery “by any insurance company for any subrogation claim pursuant to any subrogation clause of the uninsured, underinsured, collision, or other first-party coverages of a motor vehicle insurance policy” as a result of payments on claims arising in whole or in part under the section. The UIM carrier that pays your client does not get to chase the host.
Does the dram shop notice statute apply to a § 340A.90 claim?
No. Read § 340A.802, subd. 1 and watch the two limiting phrases:
A person who claims damages and a person or insurer who claims contribution or indemnity from a licensed retailer of alcoholic beverages or municipal liquor store for or because of an injury within the scope of section 340A.801 must give a written notice to the licensee or municipality stating:
The notice runs to a licensee or a municipal liquor store, about an injury within the scope of § 340A.801. A § 340A.90 defendant is neither — the statute itself says it “does not apply to sales licensed under this chapter” — and an injury caused by a non-licensee’s permission or furnishing is not within the scope of § 340A.801, which requires an illegal sale by a vendor. The notice obligation never attaches. Neither does the sentence that enforces it: “No action for damage or for contribution or indemnity may be maintained unless the notice has been given,” which by its context is about the notice this section requires of a claimant against a licensee.
The two-year bar in the same subdivision is even plainer, because it names its target: “No action may be maintained under section 340A.801 unless commenced within two years after the injury.” Minn. Stat. § 340A.802, subd. 2.
The courts have read that sentence exactly that narrowly. In Brua v. Olson, 621 N.W.2d 472 (Minn. App. 2001), review denied (Minn. Mar. 27, 2001), the Court of Appeals held the two-year bar did not reach a contribution and indemnity claim, and the reasoning is a canon of construction anyone litigating this chapter should have at hand:
Because the legislature could have but did not make the statute of limitations applicable to “any action brought under this act,” we read the two-year limitation as only applying to direct actions against the liquor vendor brought under section 340A.801.
Id. at 475. Two years later, in Wollan v. Jahnz, 656 N.W.2d 416 (Minn. App. 2003), the court applied that reading to a social host claim and refused to import § 340A.802’s two-year period. In light of Brua’s holding that “the two-year limitations period in section 340A.802, subd. 2, narrowly applies to direct actions against vendors of alcohol,” the Wollan court wrote, “we will not expand its application to include actions against social hosts under subdivision 6.” Id. at 420.
I want to be precise about the outer edge of this. I have not found a published Minnesota decision holding in so many words that the § 340A.802, subd. 1 notice obligation does not reach a § 340A.90 claim. What I have is the statutory text, which does not reach it; two published decisions reading the neighboring sentence in the same section narrowly and by its terms; and a third case, discussed next, in which a § 340A.90 claim was served nearly four years after the death and the Court of Appeals affirmed the denial of a motion to dismiss. If the notice-and-two-year regime applied, that case ends on page one. It did not end there.
The exception that will bite you. Half the underage-drinking cases I see are mixed: the group was at a house, then at a bar, or bought at a liquor store on a fake ID and drank at the house. The moment a licensee is anywhere in the causal chain, § 340A.802’s notice is live as to that defendant, and it runs from a date that has nothing to do with the accident — the notice “must be served by the claimant’s attorney within 240 days of the date of entering an attorney-client relationship with the person in regard to the claim.” Minn. Stat. § 340A.802, subd. 2. That clock starts when you take the case. I have written about why the dram shop notice deadline is the one Minnesota deadline that runs off the lawyer’s retention rather than the client’s injury, and it is the single most common malpractice exposure in this area. Serve the notice on every possible licensee. It costs a certified mailing.
Six years, and a published case that says so
Christiansen v. University of Minnesota Board of Regents, 733 N.W.2d 156 (Minn. App. 2007), answers the limitations question on a certified question, and the facts show the stakes. Ken Christiansen, under 21, drank at a party at a residence the defendant controlled on 13 April 2001, became intoxicated, and died after falling in a creek walking home. The complaint was served on 9 April 2005 — three years and nearly twelve months later. The defendant moved to dismiss, arguing the three-year wrongful death period in § 573.02 governed. The district court said six years under § 541.05, and the Court of Appeals affirmed:
Respondents argue, and the district court concluded, that the relevant limitation is in Minn.Stat. § 541.05, subd. 1(2), providing that actions “upon a liability created by statute” must be brought within six years. We agree. Minn.Stat. § 340A.90, under which this action was brought, was enacted in 2000 to create a liability for social hosts.
Id. at 158. The court rejected the wrongful-death argument on a ground worth remembering: the plaintiffs were the decedent’s father and sisters suing in their own names as persons “injured … by the intoxication of another person under 21 years of age,” not a court-appointed trustee bringing a § 573.02 action. Id. at 159. A § 340A.90 claim and a wrongful death claim are different animals with different plaintiffs, and the same death can generate both.
The companion rule for the common-law route is Wollan: a claim permitted by § 340A.801, subd. 6, gets six years under § 541.05, subd. 1(5), for “any other injury to the person or rights of another.” 656 N.W.2d at 419–20. Christiansen called the difference between subdivision 1(2) and subdivision 1(5) “a difference without a distinction: both Wollan and this case hold that six years is the appropriate time limit for an action to recover for injuries caused by providing alcohol to a person under 21.” 733 N.W.2d at 158 n.3.
Six years. Not two, not three. If a family was told the case was time-barred at two years, get the file.
The parental carve-out is real. It is in the criminal statute, and only there.
This is the point on which I most often disagree with the lawyer on the other side. There is a widely held belief that Minnesota law lets a parent serve alcohol to their own child in their own home, and that the belief covers the civil case too. The first half is roughly right. The second half is wrong.
Section 340A.90 contains no household exception, no parental exception, and no consent exception. Read subdivision 1 again if you doubt it — the carve-outs it contains are the licensed-sales boundary and the bar on the intoxicated minor’s own claim, and nothing else.
The household language lives in the criminal statute, § 340A.503, in two places, and both are affirmative defenses to prosecution:
- For the adult who furnished, under subd. 2: “If proven by a preponderance of the evidence, it shall be an affirmative defense to a violation of clause (1) that the defendant is the parent or guardian of the person under 21 years of age and that the defendant gave or furnished the alcoholic beverage to that person solely for consumption in the defendant’s household.”
- For the minor who drank, under subd. 1(a)(2): “If proven by a preponderance of the evidence, it is an affirmative defense to a violation of this clause that the defendant consumed the alcoholic beverage in the household of the defendant’s parent or guardian and with the consent of the parent or guardian.”
Both are defenses “to a violation” — that is, to a charge. Neither is written into § 340A.90, and neither is a defense to the civil action. A parent who pours for their own 19-year-old at the kitchen table and sends them out the door is very likely not chargeable and is squarely inside § 340A.90, subd. 1(a)(2). That gap is the single most important thing a Minnesota parent does not know about this statute.
The criminal counterpart, correctly cited
The prohibition on furnishing is § 340A.503, subd. 2(1) — “to sell, barter, furnish, or give alcoholic beverages to a person under 21 years of age” — not a subdivision 1a, which does not exist in this section. Subdivision 1(a)(2) makes underage consumption unlawful; subdivision 3 makes possession with intent to consume unlawful anywhere other than the household of the person’s parent or guardian, with a rebuttable presumption of that intent from possession elsewhere.
Two provisions in § 340A.503 that come up in these files and rarely get read:
Subdivision 5a decides the birthday question with more precision than most people expect: “With respect to purchasing, possessing, consuming, selling, furnishing, and serving alcoholic beverages, a person is not 21 years of age until 8:00 a.m. on the day of that person’s 21st birthday.” Eight in the morning. A party that runs past midnight into a 21st birthday is still an underage party until sunrise.
Subdivision 8 is the 911 immunity, and it changes how witnesses behave. A person is not subject to prosecution for underage consumption or possession if the person contacts a 911 operator to report that someone needs medical assistance for an immediate health or safety concern, “provided that the person who initiates contact is the first person to make such a report, provides a name and contact information, remains on the scene until assistance arrives, and cooperates with the authorities at the scene.” The person who receives the assistance is immune too, and so are one or two people acting in concert with the caller if all the requirements are met. In a case where the delay in calling for help is part of the damages story, this provision tells you who at that party had nothing to lose by picking up the phone.
Common law social host liability: a forty-year round trip
The assignment I was given assumed Minnesota rejects common law social host liability. That was true, then it stopped being true, and the sequence matters because it decides whether your client who was the drinker has a case at all.
The Civil Damages Act once used the words “illegally selling, bartering, or giving.” On that language, Ross v. Ross, 294 Minn. 115, 200 N.W.2d 149 (1972), imposed liability on a social host. In 1977 the legislature deleted “or giving,” and Ross went dead. Cole v. City of Spring Lake Park, 314 N.W.2d 836, 840 (Minn. 1982), then said the quiet part, in a passage the supreme court reproduced three years later in Holmquist: “The public policy reasons which underlay our decision in Ross are valid still. In the face of the pervasiveness of the legislative regulation of liquor, however, and the legislative actions in regard to social hosts, we cannot find that any common-law liability rests on the social host.”
Holmquist v. Miller, 367 N.W.2d 468 (Minn. 1985), closed it. Consolidating three cases arising from minors served at private homes, the supreme court held flatly that “a social host is not liable in a common-law action for negligently serving alcohol to a minor, and we so hold. In Minnesota, the field is preempted by the Civil Damages Act.” Id. at 472. The court had already explained why it would not do the job itself, quoting a Washington decision to the effect that “such a policy decision should be made by the legislature after full investigation, debate and examination of the relative merits of the conflicting positions.” Id.
The legislature took the invitation. In 1990 it added § 340A.801, subd. 6:
Nothing in this chapter precludes common law tort claims against any person 21 years old or older who knowingly provides or furnishes alcoholic beverages to a person under the age of 21 years.
That is one sentence, and it undoes Holmquist for one configuration only: an adult knowingly furnishing to someone under 21. It does not resurrect a common law claim against a licensed vendor for over-serving an adult, and it did not create a statutory cause of action. As Wollan put it, “the legislature did not create a new cause of action, but has merely granted permission to apply existing common-law principles to the defined social hosts.” 656 N.W.2d at 419.
Two consequences a plaintiff’s lawyer should not miss.
First, VanWagner v. Mattison, 533 N.W.2d 75 (Minn. App. 1995), review denied, held that the intoxicated person himself may bring the subdivision 6 claim. VanWagner was under 21, drank at the Mattisons’ party, and was seriously hurt in a single-car accident afterward. The court reasoned that “[i]n enacting subdivision 6 … the legislature signalled its intent that the Civil Damage Act not pre-empt actions described in that subdivision,” and that “[h]ad the legislature intended to bar a claim brought by the intoxicated person, it could have done so explicitly, as it did for actions under subdivision 1 of the act.” Id. at 77. Put that next to § 340A.90, subd. 1(c), which does bar the intoxicated minor. The injured underage drinker has no § 340A.90 claim and may still have a subdivision 6 claim — but only against an adult who knowingly furnished, which is a narrower defendant class than clause (1)’s permission theory.
Second, that claim is worth less than plaintiffs hope. VanWagner also held that “the common law actions permitted under subdivision 6 do not involve absolute liability and are therefore subject to comparative fault.” Id. at 80. The arbitrator had put VanWagner’s own negligence at 75 percent and the hosts’ at 25 percent, and at that split he lost. Under Minn. Stat. § 604.01, subd. 1, contributory fault bars recovery once it is “greater than the fault of the person against whom recovery is sought,” and otherwise reduces the award proportionally. Section 604.01, subd. 1a defines fault to include recklessness and “the defense of complicity under section 340A.801.” Our article on Minnesota comparative fault and the collateral source statute works through how that reduction is actually computed at verdict.
Three claims, three shapes
| § 340A.801 (dram shop) | § 340A.90 (social host) | § 340A.801, subd. 6 (common law) | |
|---|---|---|---|
| Defendant | Licensee or municipal liquor store making an illegal sale | Non-licensee 21 or older | Any person 21 or older |
| Conduct | Illegally selling alcoholic beverages | Knowing/reckless permission on controlled premises, or furnishing to an under-21 person | Knowingly providing or furnishing to an under-21 person |
| Intoxicated person’s age | Any | Under 21 | Under 21 |
| May the intoxicated person sue? | No | No — subd. 1(c) | Yes — VanWagner, 533 N.W.2d at 77 |
| § 340A.802 notice | Yes — 240 days from retention | Not by its terms | Not by its terms |
| Limitations | 2 years from injury (§ 340A.802, subd. 2) | 6 years (§ 541.05, subd. 1(2)) — Christiansen | 6 years (§ 541.05, subd. 1(5)) — Wollan |
| Standard | Statutory | Statutory | Common law negligence, comparative fault — VanWagner |
The three columns are not alternatives to be chosen among. In a mixed-venue case I plead the ones the facts support and take the notice obligation of the strictest one.
Where the money actually is, and it is not the auto policy
Farmers Insurance Exchange v. Letellier, 820 N.W.2d 597 (Minn. App. 2012), is the coverage case in this area and it is a short, bracing read. The Letelliers went to bed; their 15-year-old daughter had friends over; a teenage friend drank at the house; a sober driver drove him home; he then drove his sister’s car and caused a crash that injured one person and killed another. The Letelliers tendered to both their homeowner’s and their automobile carriers. The auto carrier refused, and the Court of Appeals held it was right to:
[A]lthough G.V.’s and S.R.H.‘s injuries arose out of the use of a motor vehicle, appellants’ potential legal liability for damages arose under the social-host-liability statute, Minn.Stat. § 340A.90 (2010).
Id. at 600. Because the hosts “did not own, maintain, or use any automobile involved in the crash, and the potential basis for their liability did not involve an automobile,” neither the policy language nor the residual-liability provisions of the No-Fault Act, Minn. Stat. §§ 65B.48, subd. 1 and 65B.49, subd. 3(2), reached the claim. Id. at 600–01. No duty to defend, and no attorney fees. Id. at 601.
Two things follow for anyone on either side of one of these files. If you are the plaintiff, do not build a damages model on an auto policy that will not respond — the exposure is the homeowner’s policy and the household’s personal assets, and homeowner’s policies carry liquor-liability and intentional-act exclusions that have to be read line by line before you value the case. If you are the host, tender to every carrier in the house immediately and in writing. The Letellier homeowner’s carrier defended under a reservation of rights while it litigated its own declaratory action; the auto carrier that refused paid nothing and owed nothing. Note also the fact that makes this case bite: the hosts had done the responsible thing and gotten the boy a sober ride. The intoxication still followed him home, and it was the intoxication — not the driving — that generated the claim.
The same premises that generate a § 340A.90 claim frequently generate an ordinary premises claim too. If the injury happened at the house rather than on the road, look at the premises liability and negligent security theories alongside the liquor statute, and if the party was on rural or recreational land, check whether Minnesota’s recreational land use statute narrows the landowner’s duty before you plead one.
What I do with one of these files in the first two weeks
I pull the criminal file first. A § 340A.503, subd. 2(1) charge against the host, or a juvenile citation against the drinker, produces sworn statements, phone extractions, and a timeline that no civil discovery will match for cost. I then serve a § 340A.802 notice on every licensee within a plausible reach of the night, whether or not I think I will sue them, because the notice is cheap and the 240 days run from my retention rather than from anything the client did. I identify every adult who was 21 or older and either controlled the premises or touched a bottle, because clause (1) and clause (2) reach different people and the same house often supplies both. I write to every carrier — homeowner’s, umbrella, renter’s, farm — and I demand the declarations pages, because the liquor exclusion is where these cases live or die. And I calendar six years from the injury, not two, with a real deadline eighteen months earlier, because a six-year statute is an invitation to lose a case to a witness who moved.
Then I tell the family the hard part. Section 340A.90, subd. 1(c) means that if the person who died was the one driving drunk, this statute pays them nothing, and their claim, if it exists, is the narrower one under § 340A.801, subd. 6 against whoever knowingly handed them a drink — where their own share of the fault will be measured against the host’s, and where 51 percent ends it. That conversation goes better in the first meeting than in the third year.
In short: the notice statute is not your deadline, six years is, and the carve-out the other side keeps citing is in the criminal code.
Madgett Law, LLC represents injured people and families in Minnesota liquor-liability cases, including social host claims under Minn. Stat. § 340A.90, dram shop claims against licensees, and the coverage fights that follow both. We also advise homeowners and parents who have been served with one of these claims. Call 612-470-6529 or send us a message.
Sources: Minn. Stat. § 340A.90, subd. 1(a) (right of action; the “21 years or older” defendant; clause (1) control-and-permission elements; clause (2) furnishing; “This paragraph does not apply to sales licensed under this chapter”), subd. 1(b) (direction of a minor’s recovery), subd. 1(c) (no right of action for the intoxicated person under 21 who caused the injury), subd. 2 (no first-party motor vehicle subrogation); Minn. Stat. § 340A.801, subd. 1 (dram shop right of action against a person who caused the intoxication by illegally selling), subd. 3 (§ 604.01 governs), subd. 3a (“[t]he defense described in section 340A.503, subdivision 6, applies to actions under this section”), subd. 6 (common law tort claims preserved against a person 21 or older who knowingly provides or furnishes to a person under 21); Minn. Stat. § 340A.802, subd. 1 (notice owed to a licensed retailer or municipal liquor store “for or because of an injury within the scope of section 340A.801”), subd. 2 (240 days from the attorney-client relationship; no action maintained without notice; “[n]o action may be maintained under section 340A.801 unless commenced within two years after the injury”); Minn. Stat. § 340A.503, subd. 1(a)(2) (unlawful underage consumption; household affirmative defense), subd. 2(1) and closing paragraph (unlawful to sell, barter, furnish, or give to a person under 21; parent/guardian household affirmative defense), subd. 3 (possession with intent to consume; rebuttable presumption), subd. 5a (not 21 until 8:00 a.m. on the 21st birthday), subd. 6(b) (good-faith reliance on authorized proof of age, as a defense in a prosecution under subd. 2, clause (1)), subd. 8 (911 immunity and its four conditions); Minn. Stat. § 541.05, subd. 1(2) (six years, liability created by statute) and subd. 1(5) (six years, other injury to the person or rights of another); Minn. Stat. § 604.01, subd. 1 (comparative fault bar and reduction), subd. 1a (definition of fault, including complicity under § 340A.801); Minn. Stat. §§ 65B.48, subd. 1 and 65B.49, subd. 3(2) (residual liability coverage), as applied in Letellier. Cases: Christiansen v. University of Minnesota Board of Regents, 733 N.W.2d 156, 157–59 & n.3 (Minn. App. 2007) (No. A06-1796) (six-year period of § 541.05, subd. 1(2) governs a § 340A.90 claim; § 573.02 wrongful death period inapplicable; facts showing service nearly four years post-death); Wollan v. Jahnz, 656 N.W.2d 416, 418–20 (Minn. App. 2003) (No. C4-02-1127) (§ 340A.802, subd. 2’s two-year bar not extended to social host claims under subd. 6; six years under § 541.05, subd. 1(5); subd. 6 grants permission rather than creating a cause of action); Brua v. Olson, 621 N.W.2d 472, 475 (Minn. App. 2001), review denied (Minn. Mar. 27, 2001) (No. C3-00-1082) (two-year limitation read as applying only to direct actions against the liquor vendor under § 340A.801); VanWagner v. Mattison, 533 N.W.2d 75, 77, 80 (Minn. App. 1995) (No. C5-95-516) (intoxicated person may bring a subd. 6 claim; subd. 6 claims are not absolute liability and are subject to comparative fault); Holmquist v. Miller, 367 N.W.2d 468, 471–72 (Minn. 1985) (Nos. C7-83-1919, C7-84-84, CX-84-371) (no common law social host liability; field preempted by the Civil Damages Act; legislature is the proper forum), quoting Cole v. City of Spring Lake Park, 314 N.W.2d 836, 840 (Minn. 1982); Ross v. Ross, 294 Minn. 115, 200 N.W.2d 149 (1972), and the 1977 deletion of “or giving,” as recounted in Holmquist, 367 N.W.2d at 470; Farmers Insurance Exchange v. Letellier, 820 N.W.2d 597, 600–01 (Minn. App. 2012) (No. A12-155) (automobile policy and no-fault residual liability coverage do not reach a § 340A.90 claim; no duty to defend; no attorney fees).
This article is general legal information about Minnesota law. It is not legal advice, it does not create an attorney–client relationship, and no outcome is promised or implied. Liquor-liability deadlines and notice obligations turn on facts specific to each case — including whether any licensed vendor is involved — and you should consult a lawyer about your own situation rather than relying on this page.