may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Joseph Proctor, et al.,
Sports Restaurant, Inc.,
d/b/a Benchwarmer Bob's,
Ramada Inn and Conference Center NW,
Reversed in part, appeal dismissed in part
Concurring in part, dissenting in part, Kalitowski, Judge
Hennepin County District Court
File No. PI04-000168
Howard S. Carp, David G. Johnson, Borkon, Ramstead, Mariani, Fishman & Carp, 5401 Gamble Drive, Suite 100, Minneapolis, MN 55416 (for appellants)
Gregory A. Zinn, Victor E. Lund, Mahoney, Dougherty and Mahoney, P.A., 801 Park Avenue, Minneapolis, MN 55404 (for respondent Sports Restaurant, Inc., d/b/a Benchwarmer Bob’s)
Gay B. Urness, Law Offices of Susan K.H. Conley, 2550 University Avenue West, Suite 220-S, Court International, St. Paul, MN 55114 (for respondent Ramada Inn and Conference Center NW)
Considered and decided by Peterson, Presiding Judge; Kalitowski, Judge; and Klaphake, Judge.
U N P U B L I S H E D O P I N I O N
Appellants Frederick and Gwendolyn Proctor brought a negligence claim against respondent Ramada Inn and Conference Center NW and a dram-shop action against respondent Sports Restaurants, Inc., d/b/a Benchwarmer Bob’s, for injuries sustained from an assault at the Ramada by another bar patron. Benchwarmer Bob’s cross-claimed against Ramada, alleging that the assault resulted from Ramada’s conduct. The district court determined that the assault was so sudden and unforeseeable as to provide inadequate notice to Ramada of the need to protect its patrons, granted partial summary judgment for Ramada on the Proctors’ claim, and dismissed Benchwarmer Bob’s cross-claim. Based on the determination that genuine issues of material fact existed regarding whether the assailant was obviously intoxicated while at Benchwarmer Bob’s, the district court denied Benchwarmer Bob’s summary-judgment motion on the Proctors’ claim. Partial summary judgment was entered for Ramada. We reverse the summary judgment dismissing appellants’ claims against Ramada and Benchwarmer Bob’s cross-claim against Ramada and dismiss the portion of Benchwarmer Bob’s appeal challenging the denial of its summary-judgment motion.
On February 10, 2002, at about 2:00 or 3:00 p.m., Derrick Hempel met Paul DuCharme and two other friends at Benchwarmer Bob’s. Hempel drank a Colorado Bulldog, a drink containing vodka, Kahlua, cream, and Coke. He also drank at least six, and possibly more than ten, glasses of beer from a pitcher. He drank at least one, and possibly more, Nature Boys, a drink containing shots of Goldschlager, Bailey’s Irish Cream, and 151 rum. Hempel and his friends stayed at Benchwarmer Bob’s for three or four hours.
Tracy Swanson, who waited on Hempel’s table, did not recognize pictures of Hempel and DuCharme and did not recall any incident in February 2002 when the people in the pictures and two other people were getting loud. Amber Tutt, the bartender at Benchwarmer Bob’s, was also shown Hempel’s and DuCharme’s photos and did not recognize the people in the pictures or recall anyone acting loud or obnoxious or being asked to leave Benchwarmer Bob’s in February 2002.
Hempel testified that when he left
Benchwarmer Bob’s, “I’m pretty sure I was nice and drunk.” DuCharme drove, and Hempel rode with him from
Benchwarmer Bob’s to a bar at the Ramada Inn and
On February 10, 2002, which was a Sunday, James Wille was the only bartender on duty at Good Night Charlie’s, and he was also waiting the tables in the bar area. Frederick Proctor testified that Hempel and DuCharme came into Good Night Charlie’s “just hooting and hollering.” He recalled one of them saying that they had been tossed out of Benchwarmer Bob’s and could not get a drink there, so they came to Good Night Charlie’s. Gwendolyn Proctor testified that when Hempel came into Good Night Charlie’s, he was drunk and acting “real crazy.”
Hempel walked up to the bar, and Wille repeatedly asked him for identification, which Hempel refused to produce. Wille described Hempel as appearing to be intoxicated or high on something, standing with his head down and raising it very slowly. Hempel became rude and argumentative, swearing and yelling at Wille and slamming his hand on the bar. After about five minutes, Wille walked away from Hempel to wait on another customer. Wille thought that if he got away from Hempel, Hempel would calm down.
Charles Bjornson came into the bar while Hempel and Wille were talking. Bjornson described Hempel as talking loudly but not screaming. Bjornson heard Wille ask Hempel to leave. Bjornson testified that “[Hempel] . . . appeared to me to be pressing his way back behind the bar in an aggressive manner to the point that I felt that if he got close enough to [Wille], he would have physically assaulted him.” Bjornson testified that Wille attempted to defuse the situation verbally and backed away from Hempel, but Wille’s efforts did not seem to be working. Bjornson described Wille as “seem[ing] rather nervous” and “look[ing] like he was scared” and Hempel as “intimidatedly aggressive.”
Bjornson said to Hempel words to the effect of “You heard [Wille], he wants you to leave, why don’t you just go.” Bjornson testified, “Immediately after I said what I said to [Hempel], he turned and looked at me and said something to the effect of, ‘Oh, you want a piece of it, too?’ And immediately physically attacked me, swinging on me, and grabbed on to me.” Hempel hit Bjornson in the face, grabbed onto him, and wrestled him to the ground. During the scuffle, Hempel pushed Bjornson, and they fell into tables and chairs. DuCharme then jumped on Bjornson. Bjornson got up, but DuCharme continued trying to hit him. Bjornson testified that he did not threaten Hempel or call him any names and that, under those circumstances, the physical assault by Hempel was surprising and unexpected.
Frederick Proctor testified that he got hit at the beginning of the fight between Hempel and Bjornson. Proctor thought that Hempel swung at Bjornson and missed, instead hitting Proctor and knocking him off of his barstool. After Frederick Proctor fell, Hempel got on top of him and started choking him.
Wille testified that as soon as he heard the commotion from the fight, he tried to call 911 from the phone behind the bar, but the phone might have been out of order, and he yelled for someone else to call 911. Patrons broke up the fight, and police arrived a short time later. Wille estimated that at most a half hour elapsed between when Hempel and DuCharme arrived and when police arrived.
Samuel Lawson, a 50-year-old supervisor of security personnel, was at Good Night Charlie’s when Hempel and DuCharme arrived. Lawson estimated that about 15 minutes elapsed between when he heard a loud discussion between Wille and Hempel and when Frederick Proctor was injured.
Jill Bratton was at Good Night Charlie’s when the fight happened. Bratton testified that, during small talk about 30 to 40 minutes after the fight, Wille said something to the effect of, “I knew this was coming. I got a call from Benchwarmer Bob’s saying these two are headed here.” Bjornson recalled hearing from Wille that someone from Benchwarmer Bob’s had called to forewarn the Ramada that Hempel and DuCharme might be heading there after being cut off at Benchwarmer Bob’s.
Hempel was arrested and transported to the police station. A breath-alcohol test administered at 8:25 p.m. showed an alcohol concentration of .19. Forensic toxicologist Glenn G. Hardin opined:
a. At the time of the assault on February 10, 2002 at approximately 7:00 p.m., Derrick Hempel’s blood alcohol concentration would have been between 0.20 and 0.22 g/dL.
b. At the time of last service at Benchwarmer Bob’s on February 10, 2002 at approximately 6:18 p.m., Derrick Hempel’s blood alcohol concentration would have been between 0.20 and 0.22 g/dL.
c. To have an alcohol concentration of 0.19 g/210L at 8:25 p.m. on February 10, 2002 when the breath alcohol test was administered, Derrick Hempel would have had to consume between 4.50 and 5.62 fluid ounces of pure ethyl alcohol between 3:00 p.m. and 6:50 p.m. This would be equivalent to between nine and eleven 12-ounce servings of beer or 1.25-ounce shots of 80-proof hard liquor or some combination thereof.
d. At a blood alcohol concentration of 0.20 to 0.22 g/dL, an individual such as Derrick Hempel would have been displaying obvious signs of intoxication when he was last served at Benchwarmer Bob’s. These obvious signs of intoxication would be recognizable by a person using normal powers of observations. These signs would include but would not be limited to: odor of an alcoholic beverage on the breath; flushed appearance; muscular incoordination; speech difficulties, such as slurred; disorderly or out of the ordinary conduct; unusual mental changes; dizziness; tremors; sleepiness; nausea; vomiting; unsteady gait; nystagamus; impairment in attention or memory; impaired social functioning; impaired judgment; confusion; and stupor or coma.
The Proctors brought a negligence action against Ramada and a dram-shop action against Benchwarmer Bob’s, for injuries suffered during the fight. Benchwarmer Bob’s cross-claimed against Ramada, alleging that the assault resulted from Ramada’s conduct. The district court concluded that the assault was not foreseeable and granted partial summary judgment dismissing the Proctors’ claim against Ramada and Benchwarmer Bob’s cross-claim against Ramada. Based on the determination that genuine issues of material fact existed regarding whether Hempel was obviously intoxicated while at Benchwarmer Bob’s, the district court denied Benchwarmer Bob’s summary-judgment motion on the Proctors’ claim.
The Proctors appealed from the summary judgment on their claim against Ramada, arguing that Ramada bar employees had notice of the potential for violent action and that notice is imputed to the bar. Benchwarmer Bob’s filed a notice of review challenging the dismissal of its cross-claim against Ramada and the denial of its summary-judgment motion on the Proctors’ claim. By order filed January 25, 2005, this court construed Benchwarmer Bob’s notice of review as a notice of appeal and referred to this panel the decision whether to extend review to the denial of Benchwarmer Bob’s summary-judgment motion.
D E C I S I O N
On appeal from a summary judgment,
this court must ask two questions: (1) whether there are any genuine
issues of material fact in dispute; and (2) whether the district court erred in
applying the law. State by Cooper v.
French, 460 N.W.2d 2, 4 (
In order to establish an innkeeper’s liability, a plaintiff must prove four elements: (1) the proprietor must be put on notice of the offending party’s vicious or dangerous propensities by some act or threat, (2) the proprietor must have an adequate opportunity to protect the injured patron, (3) the proprietor must fail to take reasonable steps to protect the injured patron, and (4) the injury must be foreseeable. Foreseeability is a threshold issue and is more properly decided by the court prior to submitting the case to the jury. . . . [A] tavern owner has the duty to maintain safety and order for the protection of its patrons, but . . . a prerequisite to that duty is that injury to a patron by another patron permitted to frequent the premises must be foreseeable.
In determining whether the duty exists, the court goes to the event causing the damage and looks back to the alleged negligent act. If the connection is too remote to impose liability as a matter of public policy, the courts then hold there is no duty, and consequently no liability. On the other hand, if the consequence is direct and is the type of occurrence that was or should have been reasonably foreseeable, the courts then hold as a matter of law a duty exists. Other issues such as adequacy of the warning, breach of duty and causation remain for jury resolution.
Germann v. F.L. Smithe Mach. Co., 395
N.W.2d 922, 924-25 (
In Boone, the Boones argued that the bar had notice of
that the evidence
presented on this claim was limited to testimony that
. . . [T]he evidence
established that the assault by
The fight was initiated when
This case is distinguishable from Boone in two respects. First, in Boone, there was evidence
The Proctors rely on Priewe v.
The supreme court concluded that the issue of the bar’s negligence was properly submitted to the jury, explaining:
The presence of an intoxicated person upon the premises immediately exposes the proprietor to the hazards of liability resulting from the unpredictable conduct of such person, and when it appears that such intoxicated person might cause a disturbance or harm other patrons, the proprietor is obligated to do something more than request such a person to leave. There must be some affirmative action to maintain order on the premises by demanding that such a person leave or by calling the authorities to enforce such demand. In view of the evidence which indicates that [the bartender] had ample opportunity to observe [the assailant’s] manner and condition and the further evidence with reference to her subsequent conduct, we think that the question of her negligence under the circumstances was one of fact for the jury.
In Windorski, the supreme court concluded that the district court erred in directing a verdict for the bar under the following circumstances:
According to [a witness], argument and loud talking had been going on for eight or ten minutes before [the assailant] struck [the victim]. Defendant [bar] contends that the incident of [the assailant’s] striking [the victim] happened in a flash and that the bartender had no opportunity to prevent it. It is true that the assault happened suddenly, but there is evidence to indicate that there were noisy preliminaries that had been under way eight or ten minutes prior to the incident.
In Priewe, the evidence that injury to a patron was foreseeable was stronger than in this case because the assailant in Priewe tried to engage the victim in a fight some time before the assault occurred. But the assailant’s conduct before the assault in Windorski was similar to Hempel’s conduct before the fight in this case. The only distinction we see is that in Windorski, the assailant was arguing with other customers before the assault and, here, Hempel had been arguing with the bartender. But we see no reason why this distinction should make a difference with respect to whether injury is foreseeable.
The distinction between the cases in which the supreme court has concluded that the evidence was not sufficient to establish that injury to a patron was foreseeable, such as Boone, and cases in which the evidence was sufficient to establish that injury to a patron was foreseeable, such as Windorski, is that evidence that a patron appears obviously intoxicated and angry is not sufficient, but evidence that a patron appears intoxicated and engages in argument and loud talking is sufficient. The assailant in Boone appeared intoxicated and angry, but did nothing more than half-slam his beer down on a table before suddenly striking the victim with a beer mug, and the assailant in Windorski appeared intoxicated and engaged in an argument with other patrons for eight or ten minutes before striking the victim.
We conclude that consistent with Windorski, the evidence here, when viewed in the light most favorable to the Proctors, establishes that injury was foreseeable. When he entered Good Night Charlie’s, Hempel had an alcohol concentration near 0.20 and appeared intoxicated, and shortly after entering, he became argumentative and sufficiently loud to attract the attention of several patrons. This behavior continued for up to 15 minutes before the fight broke out, and Wille recognized the behavior as a situation that he wanted to defuse. Hempel also acted in what appeared to one patron to be a threatening manner toward Wille. Because the injury was foreseeable, we reverse the summary judgment dismissing appellants’ claims against Ramada and Benchwarmer Bob’s cross-claim against Ramada and remand for further proceedings.
Benchwarmer Bob’s seeks review of
the district court’s denial of its motion for summary judgment. Generally, an order denying a
summary-judgment motion is not appealable.
McGowan v. Our Savior’s Lutheran Church, 527 N.W.2d 830, 832 (
party injured by another person’s intoxication may bring an action against an
entity that caused the person’s intoxication by illegally selling alcoholic
beverages. Minn. Stat. § 340A.801, subd.
1 (2002). It is illegal to sell
alcoholic beverages “for the use of an obviously intoxicated person.”
Reversed in part, appeal dismissed in part.
KALITOWSKI, Judge (concurring in part, dissenting in part)
I concur with the dismissal of Benchwarmer Bob’s interlocutory appeal. But I respectfully dissent from the determination that the district court erred in granting summary judgment dismissing appellant’s claims against Ramada.
district court cited Boone v. Martinez,
567 N.W.2d 508 (Minn. 1997), for the propositions that (1) a prerequisite to a
tavern owner’s duty to maintain safety and order for the protection of its
patrons is that injury to a patron by another patron must be foreseeable; (2)
if a fight between patrons of a bar is sudden and unforeseeable, the bar is not
liable for resulting injuries to a patron; and (3) foreseeability is a
threshold issue and is more properly decided by the court prior to submitting
the case to the jury.
In reaching its conclusion the district court properly reviewed all deposition testimony and concluded that none of the witnesses offered testimony suggesting that the alleged physical attack by Hempel was anything other than sudden and unforeseeable. In particular, the court cited testimony by Wille that when he walked away from Hempel he thought that would calm Hempel down and that Hempel would just go away.
Because the evidence in the record supports the district court’s application of Boone, I would affirm.
The Windorski court did not
explicitly address foreseeability, but its analysis specifically addresses when
a bar owner’s duty to protect its patrons arises as a matter of law, which is the
issue that a court addresses when it determines foreseeability. Quoting Mastad
v. Swedish Brethren, 83
There is no reason on principle why a person owning and controlling [a bar] who sells his wares to such a person, knowing his ugly and quarrelsome disposition when intoxicated, should not be bound to exercise at least reasonable care to protect his other guests from his assaults and insults. The proprietor of such a place has the undoubted right to exclude therefrom drunken and disorderly persons, and the right to remove and expel them when they become in that condition and disorderly, and likely to produce discord and brawls. Being clothed with such power and authority, a corresponding duty to do so in the interests of law and order, and for the protection of his other guests, should be imposed as a matter of law.