This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Jonathan A. Minks,
Nicole Cherry (owner/operator) d/b/a Cherry’s Minnehaha Tavern, Inc.,
a/k/a The Cherry Pit,
Ramsey County District Court
File No. C5-05-007108
Robert E. Wilson, Robert Wilson
Steven E. Tomsche, Bryan B. Carroll, Tomsche, Sonnesyn & Tomsche, P.A., 610 Ottawa Avenue North, Minneapolis, MN 55422 (for respondent)
Considered and decided by Hudson, Presiding Judge; Randall, Judge; and Dietzen, Judge.
U N P U B L I S H E D O P I N I O N
This appeal results from a
summary judgment granted against appellant’s personal injury action under
Appellant Jonathan A. Minks
sustained injuries when he was hit with a beer bottle while he was a patron at Respondent
Cherry’s Minnehaha Tavern, Inc., a/k/a The Cherry Pit, located in
Nicole Cherry and Robert Cherry are co-owners and operators of The Cherry Pit. Both were working the night in question, along with one bartender and one waitress. No security personnel were working. Prior to the bar’s grand opening, Jeremy Scheffert, a witness to appellant’s injury, discussed security plans with Robert Cherry. Robert Cherry, adopted a “wait and see” approach to hiring security. Nicole Cherry admitted that security on the night in question was her responsibility.
Minks and a friend arrived at The Cherry Pit on February 21, 2004, the second day the bar was open for business, to see how the grand opening weekend was progressing.
Nicole Cherry repeatedly asked an unruly patron to leave. Upon his refusal, Nicole Cherry requested assistance from Scheffert in escorting the patron from the bar. Scheffert agreed, and the three moved toward the door. Minks saw them coming, believed something was wrong, and voluntarily followed. A group began congregating at the door around Minks, Nicole Cherry, and Scheffert. The area erupted in yelling, screaming, and swearing. Minks attempted to diffuse the situation and testified that the crowd calmed down for a few minutes, leading him to believe no altercation would arise. Witnesses testified that the argument near the exit continued for approximately 6-15 minutes.
Without warning, Minks was suddenly hit in the head with a beer bottle. Minks testified that all of a sudden things became “super hectic” and “then whammo, some big guy starts yelling and the next thing you know I feel something get hit. . . . I just remember this one guy started screaming and it got super hectic and then the next thing I know I was just standing there and I got hit.” Minks was unable to identify his attacker. None of the witnesses were able to identify the attacker.
The Cherry Pit moved for summary judgment claiming that the assault was unforeseeable. The district court granted The Cherry Pit’s motion. This appeal followed.
D E C I S I O N
Summary judgment is appropriate where there are
no genuine issues of material fact, and where the moving party is entitled to
judgment as a matter of law.
I. Innkeeper liability
“have the duty to exercise reasonable care under the circumstances to protect
their patrons from injury.” Alholm v. Wilt, 394 N.W.2d 488, 490 (
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.
Martinez, 567 N.W.2d 508, 510 (
The district court granted summary judgment for The Cherry Pit, basing its decision on lack of notice and absence of foreseeability. As to the first element, the court stated: “[T]he Cherry Pit had no notice of the assailant’s vicious or dangerous propensities. Neither party can specifically identify the assailant. . . . Because the assailant is unknown, it is not possible for the proprietor to have been put on notice of the assailant’s vicious or dangerous propensities.”
Appellant argues that notice can be imputed to a group of people even if the injuring individual cannot be identified. The district court rejected appellant’s imputation argument and commented further on the assailant’s unknown identity, stating that “[t]he proprietor may have seen or heard threatening activity by some persons, but if those persons did not actually injure the [appellant] there can be no liability.” We agree. Notice cannot be imputed here because there is no specific group to impute it to, and we cannot permit imputation to all patrons present at the bar on this record.
relies on Connolly v. Nicollet Hotel,
further contends notice existed because of the time elapsed during the
escalation of threatening behavior.
Notice may be based on an escalating series of threats. Windorski
v. Doyle, 219
points out that Nicole Cherry was present during the entire event and Robert
Cherry witnessed the transpiring events, recognized an increasing problem, and
called the police. An escalating series
of threatening behavior did unfold in The Cherry Pit, which Nicole and Robert
Cherry witnessed. But it was of
relatively short duration, and no single (or multiple) known assailant can be
blamed for appellant’s injury. See Boone, 567 N.W.2d at 510-11
(recognizing that notice cannot be established from prior violent conduct when
the bar could not reasonably have known about the conduct or anticipated
further violence). If a violent patron
has no history of violent or aggressive behavior on the premises, notice cannot
be established. See Schwingler v. Doebel, 309 N.W.2d 760, 762 (
Because no assailant was identified, the bar owners had no warning of violent or dangerous propensities that would have put them on notice to foresee appellant’s injury. As previously stated, like the district court, we cannot find imputation to every single patron present that night. As to foreseeability, the court found “that giving the [appellant] the best slant on the evidence in the record, there is an insufficient basis to find that the assault was foreseeable.” 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). But, sudden fights are not foreseeable. Boone, 567 N.W.2d at 511. The arguments lasted only approximately 6-15 minutes, and appellant testified that the crowd calmed down. But then, all of a sudden, the scene turned “super hectic” and he was hit. Without the identity of the assailant, and therefore notice to the bar owners of whether such individual possessed violent or dangerous propensities, and viewing the hasty transition of the crowd from calm to hectic, we cannot conclude that appellant’s injury was foreseeable.
II. Public Policy
argues that current Minnesota innkeeper liability law is inadequate, and
instead, believes that a bar owner should be held liable for reasonably
foreseeable and injurious acts of an unidentified third party resulting from a
generally threatening environment towards the injured party existing prior to
the injury. Appellant urges Minnesota to
adopt a negligent security standard based on the Restatement (Second) of Torts
§344 (1965), such that “if careless or criminal behavior by a third party is
foreseeable based on past experience, actual knowledge, or what should be
known, the owner of a business establishment has a duty to take reasonable
steps to protect patrons from harm resulting from that activity.” Appellant contends that adoption of this
proposed liability standard accomplishes
district court did not accept appellant’s public policy arguments,
acknowledging instead, that established precedent exists in