This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Banana Joe’s of Minnesota, Inc.
d/b/a Banana Joe’s Island Bar & Grill,
Filed October 5, 2004
Hennepin County District Court
File No. PI 02002220
Paul K. Downes; Sieben, Grose, Von Holtum & Carey, Ltd., 900 Midwest Plaza East, 800 Marquette Avenue, Minneapolis, MN 55402; and
Wilbur W. Fluegel; Fluegel Law Office, 701 Fourth Avenue South, Suite 1260, Minneapolis, MN 55415-1815 (for appellant)
Timothy J. Leer, Robert E. Kuderer, Lee A. Hutton, III; Johnson & Condon, P.A., 7401 Metro Boulevard, Suite 600, Minneapolis, MN 55439-3034 (for respondent)
Considered and decided by Peterson, Presiding Judge; Stoneburner, Judge; and Wright, Judge.
U N P U B L I S H E D O P I N I O N
Appellant brought this negligence action against respondent bar, alleging that respondent failed to protect him from assault by a violent patron. A jury returned a verdict in favor of appellant and awarded $1.9 million in damages, including $750,000 for diminished future earning capacity. Based on its determination that respondent had no notice of the threat posed by the violent patron, the district court granted respondent’s motion for judgment notwithstanding the verdict (JNOV) and ordered a new trial. But the district court denied respondent’s motion for remittitur because the damages award did not exceed an amount sustainable by the evidence. Appellant argues that, because there is evidence to establish that respondent had a duty to protect him, the JNOV and new trial order should be reversed. By notice of review, respondent argues that remittitur should have been applied against damages for appellant’s diminished future earning capacity. We affirm in part, reverse in part, and remand.
At approximately 11:30 p.m. on the evening of June 29, 2001, appellant Dorrick Roy and several companions entered respondent Banana Joe’s Bar and Grill. Shortly thereafter, Roy went to the restroom. Meanwhile, one of Roy’s companions, Kevin Murphy, asked a woman at the bar for a cigarette. The woman’s boyfriend confronted Murphy and asked, “Are you talking to my girlfriend?” During this confrontation, Roy returned to Murphy, and the woman’s boyfriend was joined by one or two other men. Murphy told Roy that the woman’s boyfriend and his companions were causing trouble.
According to Roy and Murphy, a bouncer then approached the group and required Roy, Murphy, and the other men to leave the premises via the back exit. The woman’s boyfriend was now among a group of ten to thirty men. The group taunted Roy and Murphy as they exited the premises. A different bouncer, who was stationed at the back exit, warned Roy and Murphy, “They will come at you with . . . knives, bottles [and] chains. . . . Don’t f*** with these guys.”
Roy and Murphy testified that, after leaving the premises, they stayed by the back exit and attempted to convince the bouncer to let them back in. During this conversation, three to five men from the group came from around the corner of a nearby fence and attacked Murphy, punching him in the face several times. One or two bouncers seized Roy and Murphy and pulled them back into the bar. A bouncer and other Banana Joe’s employees then helped Murphy clean up his injuries. Roy and Murphy stayed inside with their other companions for approximately fifteen minutes longer until closing time.
While the bar was closing, Roy and Murphy asked if they could remain inside after closing. Banana Joe’s staff refused. Roy and Murphy then asked whether they could leave by the front exit, rather than by the back exit where the attack took place. Banana Joe’s staff also refused this request. Roy and Murphy then exited with their companions, and while passing through an adjacent parking lot, Roy was attacked by the same group they had confronted earlier that evening.
Banana Joe’s offers a substantially different version of events. According to bouncers on duty that night, Murphy was involved in a fight near the men’s restroom. Roy and his companions then were ejected from the premises via the back exit. As they were departing, Murphy uttered several racial epithets at a group of men. Roy and his companions returned to the back exit near closing time. As the bar’s patrons were exiting, Roy looked for the group of men and asked the bouncer at the exit whether he could look inside. After the bouncer refused, Roy and his companions departed without incident. A bouncer later saw that Roy had been involved in a fight in the adjacent parking lot.
Roy’s left shoulder and right eye were injured during the attack. As a result, he has suffered persistent pain and headaches, numbness in his left forearm, blindness in one eye, depression, and other mental distress. Roy also faces the risk of permanent blindness in both eyes.
Roy brought this negligence action against Banana Joe’s in February 2002, claiming that the bar had a special duty to protect him from the assault. Roy contends that, because of his injuries, his future earning capacity has been diminished. In 2000 and 2001, Roy pursued a career as a professional football player, with a potential salary exceeding $100,000 per year. But he did not qualify following team try-outs. In 2001, Roy was offered a position as a graduate assistant coach for a college football team, but his injury prevented him from accepting the position. Roy later volunteered as an assistant coach with another college football team.
Roy, who was 28 years old at the time of the trial, has had difficulty securing a paid coaching position since the attack. Should Roy receive a paid position equivalent to the volunteer coaching job, his potential annual income is between $42,500 and $125,000.
The case proceeded to trial, following which the jury returned a verdict for Roy and awarded approximately $1.9 million, including $750,000 in lost wages. Banana Joe’s moved for JNOV or a new trial. In the alternative, Banana Joe’s moved for remittitur of damages for diminished future earning capacity. After concluding that Banana Joe’s had no special duty to Roy because the assailant and his companions committed no overt acts on the premises that would provide notice of their dangerousness, the district court granted Banana Joe’s motions for JNOV and a new trial. The district court denied Banana Joe’s motion for remittitur, summarily finding that the damages award did not exceed an amount sustainable by the evidence. This appeal followed.
Roy first contends that the district court erroneously granted JNOV based on its conclusion that as a matter of law Banana Joe’s had no duty to protect Roy. JNOV is proper if either the verdict is manifestly contrary to the entire evidence or, notwithstanding the evidence, the moving party is entitled to judgment as a matter of law. Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998). We review de novo the district court’s decision to grant a motion for JNOV. Id. In doing so, we view the evidence in the light most favorable to the verdict, drawing any reasonable inference from the evidence as a whole. Id. The verdict will not be disturbed if it can be sustained on any reasonable theory. Blatz v. Allina Health Sys., 622 N.W.2d 376, 383 (Minn. App. 2001).
The “innkeeper’s duty” requires a
bar to take reasonable care to protect its patrons from other dangerous or
violent patrons. Alholm v. Wilt,
394 N.W.2d 488, 490 (Minn. 1986) [hereinafter Alholm III]. Whether this duty exists is a question of
law. Id. at 490 n.5. The bar is not liable unless an injury is
foreseeable as a result of acts or threats that give notice to the bar of a
patron’s potential for violence. Boone v. Martinez, 567 N.W.2d 508,
510 (Minn. 1997). When bar employees
have notice of potential violent action, that notice is imputed to the
bar. See Priewe v. Bartz,
249 Minn. 488, 491-92, 83
N.W.2d 116, 119-20 (1957) (discussing acts and knowledge of bar staff and bar operator interchangeably and noting both staff and owners have duty to patron).
Notice may be based on a patron’s violent or aggressive behavior prior to the infliction of an injury. See id. at 490-93, 83 N.W.2d at 118-20 (finding bar employee on notice because employee witnessed patron engage in obscene and abusive behavior with another); Windorski v. Doyle, 219 Minn. 402, 404-06, 18 N.W.2d 142, 144-45 (same) (1945). Obvious intoxication will signal a heightened likelihood of such behavior. Priewe, 249 Minn. at 492-93, 83 N.W.2d at 120; Alholm v. Wilt, 348 N.W.2d 106, 109 (Minn. App. 1984), review denied (Minn. Sept. 12, 1984) [hereinafter Alholm I]. Notice also may be based on a history of prior violence at the bar. Alholm III, 394 N.W.2d at 489 (three prior fights on premises). This history may be shown in part by reputation evidence. Quinn v. Winkel’s, Inc., 279 N.W.2d 65, 68 (Minn. 1979); Mettling v. Mulligan, 303 Minn. 8, 10-12, 225 N.W.2d 825, 827-28 (1975). When a violent patron has no previous history of violent or aggressive behavior on the premises, notice cannot be established. See Schwingler v. Doebel, 309 N.W.2d 760, 762 (Minn. 1981). Nor can notice be established from prior violent conduct when the bar could not reasonably have known about the conduct or anticipated further violence. Boone, 567 N.W.2d at 510-11.
When we examine the facts in the light most favorable to the verdict, we need not adopt either party’s theory of the evidence. Rather, we draw all reasonable inferences from the evidence as a whole. There is ample evidence here to infer that, while Roy and Murphy were either on or near the premises, they were involved in a fight with Roy’s assailant. The evidence also supports the inference that, when the bouncer warned Roy and Murphy against engaging in an altercation with the group that included Roy’s assailant and detailed the violent tactics used by the group, the bouncer had previously observed their violent behavior. Taken together, these facts establish that Banana Joe’s had actual notice of the violent propensities of the patrons who attacked Roy. We, therefore, hold as a matter of law that Banana Joe’s had a duty to protect Roy from this violence.
Banana Joe’s argues that it is improper to attribute violent behavior to a group and then essentially require that it protect its patrons from all members of that group. Although no Minnesota authorities have distinguished between violent individuals and violent groups, useful guidance may be taken from foreign authorities’ conclusions regarding motorcycle gangs. See generally Joan Teshima, Annotation, Tavernkeeper’s Liability to Patron for Third Person’s Assault, 43 A.L.R.4th 281, 301-04, 378-79 (1986 & Supp. 1999). In Getson v. Edifice Lounge, Inc., the Illinois Court of Appeals concluded that motorcycle gang membership, by itself, cannot establish notice of dangerousness. 453 N.E.2d 131, 135 (Ill. App. Ct. 1983). But when members of a particular motorcycle gang had been barred from the premises based on a well-founded reputation for violence on the premises, a New Jersey court held that the bar had a duty to protect others from members of that gang. Kuehn v. Pub Zone, 835 A.2d 692, 698 (N.J. Super. Ct. App. Div. 2003). We conclude that the duty to protect patrons may be based on notice of a particular group’s violent propensities as well as those of an individual. But we explicitly reject attempts to define the group so broadly as to include all members of a given racial or ethnic group.
Banana Joe’s also contends that there was no “overt act” by which it had notice of violent conduct. We disagree. There are sufficient facts here to conclude that Banana Joe’s had notice of at least one overt act of violence. However, an overt act of violence is not necessary to establish that a bar patron poses a threat. Notice may be based on an escalating series of threats, Windorski, 219 Minn. at 406, 18 N.W.2d at 145, or on a reputation for violence at the bar in the past, Mettling, 303 Minn. at 10-12, 225 N.W.2d at 827-28. As a result, this argument also is unavailing. Accordingly, JNOV was erroneously granted.
By notice of review, Banana Joe’s challenges the district court’s denial of its motion for remittitur of damages. Banana Joe’s specifically contends that the jury’s award for diminished future earning capacity was made under the influence of passion or prejudice. A district court has broad discretion to deny remittitur, and we review the decision for a clear abuse of that discretion. Myers v. Hearth Techs., Inc., 621 N.W.2d 787, 792 (Minn. App. 2001), review denied (Minn. Mar. 13, 2001).
A district court’s power to order remittitur is incident to its power to grant a new trial under Minn. R. Civ. P. 59.01. “A new trial may be granted to all or any of the parties and on all or part of the issues for . . . [e]xcessive or insufficient damages, appearing to have been given under the influence of passion or prejudice.” Minn. R. Civ. P. 59.01(e). When considering whether damages are awarded under the influence of passion or prejudice, we consider all of the evidence and the circumstances of the trial. Johnson v. Washington County, 518 N.W.2d 594, 602 (Minn. 1994). A new trial is not required unless the amount of damages “shocks the conscience.” Id. When the verdict exceeds an amount supported by the evidence, the influence of passion or prejudice may be inferred. See Krueger v. Knutson, 261 Minn. 144, 154, 111 N.W.2d 526, 533 (1961).
When, as here, the only issue allegedly influenced by passion or prejudice is the amount of damages, the district court has broad discretion to exercise remittitur in lieu of a new trial. Hanson v. Chicago, Rock Island & Pac. Ry., 345 N.W.2d 736, 739 (Minn. 1984). The district court may elect to reduce damages unilaterally, or it may require the parties to agree on a lower amount of damages or otherwise face a new trial. 2 David F. Herr & Roger S. Haydock, Minnesota Practice §§ 59.15-.16 (2004).
Banana Joe’s only seeks remittitur with respect to Roy’s diminished future earning capacity. When negligence results in an impairment of an injured party’s ability to work, diminished future earning capacity is available as an item of general damages. Simpson v. Am. Family Ins. Co., 603 N.W.2d 860, 863 (Minn. App. 2000). It is necessarily inchoate and difficult to define, since past earnings are not necessarily a reliable indicator of future earnings. Id. at 863-64. Thus, damages for diminished future earning capacity need only be demonstrated with reasonable certainty, based on factors such as age, health, talents, occupation, and life expectancy. Kwapien v. Starr, 400 N.W.2d 179, 183-84 (Minn. App. 1987).
Because the record in the instant case is largely silent on Roy’s vocational outlook, it is not easy to assess his diminished future earning capacity. Roy’s trial counsel argued that Roy’s injuries would diminish his earning capacity from $70,000 to $45,000 per year. He then estimated a 30-year working career for a total recovery of $750,000. Since the jury awarded $750,000, we assume that the jury adopted this rationale. As such, the award is based on a series of inferences from the record. First, there is no direct evidence in the record that Roy’s injury impairs a potential career as a football coach, yet Roy contends that the injury could reduce his income $25,000 per year. Second, based on evidence of Roy’s qualifications and experience, he contends that his prospective annual income, without the injury, would have been an estimated $70,000.
Ordinarily, there is sufficient proof of diminished future earning capacity if the injury is severe and the jury can infer some future negative effect. As the Minnesota Supreme Court observed in Mack v. McGrath:
It is with some hesitation that we hold the circumstances of this case do not compel a remittitur. Unless it is shown by medical or other testimony that the progress of a disability will have a detrimental effect on earning capacity, a jury should not be permitted to make a purely speculative prognosis in assessing damages. Here, however, we think laymen could properly arrive at their own conclusions without looking to medical experts for guidance. The nature of plaintiff’s employment and the extent of her permanent disability were such that a jury could invoke their own collective experiences in estimating the impact of her injuries on her future job opportunities.
276 Minn. 419, 422, 150 N.W.2d 681, 683-84 (1967). In accordance with this rationale, the Minnesota Supreme Court has upheld damages for diminished future earning capacity without any proof aside from the injury itself. Fifer v. Nelson, 295 Minn. 313, 317-18, 204 N.W.2d 422, 424-25 (1973) (headaches and blurred vision); Mack, 276 Minn. at 422, 150 N.W.2d at 684 (kidney injury). Two other cases have held, based solely on proof of the injury itself, that it was proper to submit the issue of diminished future earning capacity to a jury. Bigelow v. Halloran, 313 N.W.2d 10, 13 (Minn. 1981) (blindness in one eye); Kwapien, 400 N.W.2d at 183; cf. Young v. Hansen, 296 Minn. 430, 434, 209 N.W.2d 392, 395 (1973) (finding that permanent muscle injury impaired plaintiff’s ability to work as rubbish hauler).
In Kwapien, the most recent case on point, we observed that “[the injured party] never testified as to former lines of employment or future areas of desired employment from which she was now precluded from entering, she admitted that no physicians have restricted her activities, and the symptoms she describes are essentially subjective.” 400 N.W.2d at 183. Thus, evidence of neither past employment nor future employment prospects is required. Rather, the sole inquiry in Kwapien was the injured party’s ability to earn a living. We concluded: “From the evidence . . . the jury could reasonably have determined that the physical injuries and minimal permanent disability respondent sustained, in light of her lack of education or training, were reasonably certain to [a]ffect her capacity or power to earn a living in the future.” Id. at 184.
Here, the jury was capable of determining with reasonable certainty that Roy’s future earning capacity is diminished. See Mack, 276 Minn. at 422, 150 N.W.2d at 684. And the amount of damages need not be derived with arithmetic precision from Roy’s future employment prospects. See Kwapien, 400 N.W.2d at 183. Accordingly, the district court did not clearly abuse its discretion in denying Banana Joe’s motion for remittitur.
Roy also argues that, should he prevail in reversing the district court’s order for JNOV, the district court’s order for a new trial also warrants reversal. When an order for a new trial is based on errors of law and not on questions of fact or of judicial discretion, appeal may be taken without regard for the form of the order. Haugen v. Int’l Transport, Inc., 379 N.W.2d 529, 531 (Minn. 1986); Parker v. Crabtree’s Kitchen, 404 N.W.2d 872, 876 (Minn. App. 1987); see generally 3 Eric J. Magnuson & David F. Herr, Minnesota Practice § 103.9 (2004). The district court based its order for a new trial exclusively on its conclusion that Banana Joe’s did not have a duty to protect Roy. Because the existence of a duty is a question of law, we may review the district court’s new-trial order. See Alholm III, 394 N.W.2d at 490; see also O’Brien v. Wendt, 295 N.W.2d 367, 370 (Minn. 1980) (taking appeal from order for new trial where it was based on a question of law regarding inconsistent verdicts).
If an order for JNOV is reversed and there is no other infirmity underlying the verdict, then any accompanying motion for a new trial shall also be reversed. St. Paul Fire & Marine Ins. Co. v. Honeywell, Inc., 611 N.W.2d 51, 59 (Minn. App. 2000). In light of our ruling that the JNOV was erroneously granted and our conclusion that the verdict is not otherwise legally defective, we reverse the district court’s order granting a new trial. We also affirm the jury verdict and remand to the district court to enter judgment on the verdict in accordance with law.
Affirmed in part, reversed in part, and remanded.
 The woman’s boyfriend and the members of the accompanying group were of Asian descent. Roy, Murphy, and his companions were not.
 In ordinary negligence actions, foreseeability is used to determine the proximate cause, a factual issue. See, e.g., Canada by Landy v. McCarthy, 567 N.W.2d 496, 506 (Minn. 1997). When negligence is based on a special duty of care, such as the innkeeper’s duty here, foreseeability also may inform the scope of duty, a legal issue. See, e.g., H.B. by Clark v. Whittemore, 552 N.W.2d 705, 707-08 (Minn. 1996); Anders v. Trester, 562 N.W.2d 45, 47 (Minn. App. 1997). Because the concept of foreseeability intersects with the innkeeper’s duty in these different ways, there is some confusion about its role in this area of the law. See Alholm III, 394 N.W.2d at 490 n.5 (questioning submission to the jury of issue regarding foreseeability of harm). In our analysis here, foreseeability is strictly limited to determining whether the innkeeper’s duty exists.
 In a related argument, Banana Joe’s contends that, even if a duty existed, Banana Joe’s had no opportunity to execute that duty once all parties were off the premises. Banana Joe’s raised this issue before the district court, arguing that neither its employees nor police intervention could have prevented the attack on Roy. The district court did not address this issue in granting JNOV, and respondent did not include this issue in its statement of the case on appeal.
Whether Banana Joe’s could intervene to protect Roy relates to causation and is thus a question of fact. See Canada by Landy, 567 N.W.2d at 506. Banana Joe’s duty to protect Roy required it to act affirmatively to execute that duty. See Quinn v. Winkel’s, Inc., 279 N.W.2d 65, 68 (Minn. 1979) (finding that bar owners should have acted affirmatively by calling police or demanding that assailant leave); Priewe, 249 Minn. at 492-93, 83 N.W.2d at 120 (same). This duty could have been satisfied, for example, by promptly initiating contact with the police at the stationhouse located next door to Banana Joe’s. Viewing the facts in the light most favorable to the verdict, the jury reasonably could conclude that Banana Joe’s failure to act caused Roy’s injury.