This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
The Committee, Inc.,
d/b/a First Avenue & 7th Street Entry,
Reversed and remanded
Gordon W. Shumaker, Judge
Hennepin County District Court
File No. PI 02-06889
James C. Erickson, Willard L. Converse, Jensen, Bell, Converse & Erickson, P.A., 1500 Wells Fargo Place, 30 East Seventh Street, St. Paul, MN 55101 (for appellant)
Andrew L. Marshall, Charles E. Lundberg, Bassford Remele, A Professional Association, 3550 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for respondent)
Considered and decided by Schumacher, Presiding Judge; Shumaker, Judge; and Poritsky, Judge.*
GORDON W. SHUMAKER, Judge
After appellant Christopher Clemens sued respondent The Committee, Inc., for damages for assault by a bar employee, the district court granted summary judgment dismissing the claim because appellant failed to show that respondent had notice of the employee’s dangerous propensities and that the injury was foreseeable. Because appellant has demonstrated that genuine issues of material fact exist as to notice and foreseeability, we reverse and remand.
Claiming that he was assaulted at respondent’s bar by an off-duty bar employee, appellant Christopher Clemens sued for damages on the theory that respondent, The Committee, Inc., negligently failed to warn of or protect against the employee’s dangerous propensities. The district court ruled that Clemens “failed to establish that [The Committee, Inc.] was put on notice of the offending party’s vicious or dangerous propensities . . . ” and granted summary judgment dismissing the action. The question on appeal is whether or not the admissible evidence shows the existence of a genuine issue of material fact as to notice. We hold that deposition and affidavit evidence demonstrates a genuine fact issue as to notice.
The Committee, Inc., owns and operates a bar and dance club in Minneapolis known as First Avenue. On September 27, 2000, Clemens was on the bar’s dance floor with other patrons listening to a live performance of country music when he noticed a man, who appeared to be intoxicated, moving around the floor and intentionally and aggressively bumping into patrons with his shoulder. After the man, later identified as Preston Packard, “put a shoulder” into Clemens and a woman standing next to him, Clemens complained to two security employees in the area, saying, “Look, this guy is getting kind of rough. Somebody might get hurt out here.” The security employees replied that Packard was an off-duty security guard who “gets a little rowdy” when he drinks, but they assured him that they would watch Packard.
Packard bumped into Clemens a second time and Clemens again complained to the security employees, who responded that “they would keep an eye on him,” and “knew who he was” and that “when he gets drunk he gets a little rowdy.” They reassured Clemens that there would be no problems. When Packard approached him quickly and aggressively a third time, Clemens stepped to the side, grabbed Packard’s shoulder, and pushed him away. Once again, Clemens complained to the security employees. Another security employee escorted Packard outside the bar but he re-entered soon afterward.
As Clemens continued to stand on the dance floor, someone “blindsided” him and punched him in the eye. He went to the bar and got a towel with ice to put on his eye. He testified in his deposition that, “[w]hile I was at the bar, those two guards that I had spoken to on those occasions came right up to me. They apologized and said, ‘Look, that guy’s out of here. Don’t worry about him anymore. We’ve taken care of it.’”
Packard admits that he and Clemens became involved in a tussle and that a security guard pulled Packard away. But he denies that he ever punched Clemens. No witnesses to the punch have been identified and the two security employees to whom Clemens allegedly complained have not been identified by name.
The district court summarily dismissed appellant’s action for assault by a bar employee. This appeal followed.
On appeal from summary judgment, this court determines whether there are any genuine issues of material fact and whether the trial court erred in its application of the law. Offerdahl v. Univ. of Minn. Hosp. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). There is no genuine issue of material fact when
the non-moving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.
DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997). A genuine issue of material fact can exist even if it appears that the party opposing summary judgment will not likely prevail at trial. City of Coon Rapids, Inc. v. Suburban Eng’g, Inc., 283 Minn. 151, 157, 167 N.W.2d 493, 497 (1969).
To survive summary judgment Clemens must point to “specific admissible facts” in dispute. Nicollet Restoration, Inc. v. City of St. Paul, 533 N.W.2d 845, 848 (Minn. 1995). It is sufficient to create a genuine fact issue if there is circumstantial evidence that supports inferences in favor of the nonmoving party. Forsblad v. Jepson, 292 Minn. 458, 459-60, 195 N.W.2d 429, 430 (1972).
The district court correctly noted that the bar cannot be held liable for Clemens’s injury unless four elements are established: (1) the bar must have been put on notice of the offending party’s dangerous or vicious propensities; (2) the bar must have had an adequate opportunity to protect the injured patron; (3) the bar must have failed to take reasonable steps to protect the patron; and (4) the injury must have been foreseeable. Boone v. Martinez, 567 N.W.2d 508, 510 (Minn. 1997). At the summary judgment stage, those elements do not have to be proved; but, rather, the nonmoving party’s burden is to present or to point out admissible evidence that creates a genuine fact issue as to each of the essential elements. Senn v. Youngstedt, 589 N.W.2d 314, 315 (Minn. App. 1999), review denied (Minn. May 18, 1999). And, on appeal, this court views the evidence in a light most favorable to the nonmoving party. Id.
The district court based its decision on lack of notice and absence of foreseeability. As to the first element, the court explained: “It is undisputed that the only notice that [The Committee, Inc.] had as to Mr. Packard’s dangerous propensities was from Mr. Clemens’s complaints to the two unidentified security guards.” The court then indicated that, because discovery was closed as of the time of the summary judgment motion, Clemens will not be able to establish the identities of those individuals at trial and that any statements by them would be inadmissible hearsay.
We are aware of no requirement that Clemens must prove the specific identities of the security guards in order to show notice. It is sufficient if circumstantial evidence shows that the individuals were employees of the bar who had authority to receive and act upon complaints such as those Clemens alleges he made. The evidence in the record is that Clemens recognized the two men as security guards; the men accepted Clemens’s complaints as if they had authority to do so; and they assured Clemens that there would be no problem. From this evidence, the trier of fact could infer that the men were acting as security employees of the bar and were acting within the scope and course of their duties when they engaged in communications with Clemens about his concern for his own safety and the safety of others. The men’s statements would not be inadmissible hearsay if offered, not for the truth of the contents of the statements, but to show their identity as agents of the bar, the scope of their authority, and notice of Packard’s aggressive behavior. Minn. R. Evid. 801(c) (stating hearsay is an out-of-court statement offered to prove the truth of the matter asserted).
Clemens’s testimony as to what he saw, heard, and experienced at the bar is admissible firsthand evidence which, if believed by the trier of fact, will show that he complained three times to the bar’s security employees of Packard’s dangerous behavior. There exists a genuine issue of material fact on the element of notice.
The district court also stated that “there is absolutely no evidence that anyone could have anticipated the alleged conduct of Mr. Packard,” noting that nothing in Packard’s personnel file revealed dangerous propensities and Clemens admits that after each complaint he returned to the dance floor, thus supporting an inference that he did not view himself at risk.
Escalation of aggressive behavior is relevant to the issue of foreseeability. Yunker v. Honeywell, Inc., 496 N.W.2d 419, 424 (Minn. App. 1993), review denied (Minn. Apr. 20, 1993). “The foreseeability issue, as a threshold issue, is more properly decided by the court prior to submitting the case to the jury.” Alholm v. Wilt, 394 N.W.2d 488, 491, n.5 (Minn. 1986). But at this stage, Clemens has shown a genuine fact issue as to foreseeability by pointing to evidence of an intoxicated individual (1) whose physically aggressive behavior escalated over a short time, (2) who targeted Clemens for physical contact, (3) who was ushered out of the bar after that contact, and (4) who was allowed to return to the bar thereafter. Reasonable persons could infer that the ousted, intoxicated, aggressive individual might wish to continue the aborted altercation with Clemens and that an injury could result.
Respondent argues that the evidence is also insufficient to prove that the person who assaulted Clemens was the bar’s employee. First, we emphasize that the summary judgment standard does not consider the sufficiency of proof of the case or of an element of a claim or defense. It deals solely with the existence or non-existence of a genuine fact issue for trial.
Second, it is not necessary for Clemens to prove that his attacker was a bar employee. He need only prove that a person was allowed to be on the bar premises after he showed dangerous propensities and employees were made aware of his behavior. His employment status is not determinative of the liability issue.
Finally, respondent argues that the evidence is insufficient to show that Packard was the person who assaulted Clemens and that the district court could have granted summary judgment on that ground.
Unless there is no evidence whatsoever on an essential proposition—in which case summary judgment will be appropriate—an assessment of the “sufficiency” of the evidence entails weighing evidence, making credibility determinations and, perhaps, drawing inferences. These are all matters properly determinable by the trier of fact and are not appropriate considerations in a summary judgment motion.
Reversed and remanded.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.