This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C3-96-234

Michael V. Sheridan,
Appellant,

vs.

Roby's Bar & Lounge, Inc.,
Respondent,

Timothy Ericksen,
individually,
Defendant.

Filed July 16, 1996
Reversed
Stone, Judge
*

St. Louis County District Court
File No. C3-95-600038

Robert M. Kaner, 508 Alworth Building, 306 West Superior Street, Duluth, MN 55802 (for Appellant)

Joseph J. Roby, Jr., Tim Costley, Johnson, Killen, Thibodeau & Seiler, P.A., 811 Norwest Center, 230 West Superior Street, Duluth, MN 55802 (for Respondent)

Michael J. Dwyer, 200 Town Centre Professional Building, 1260 Yankee Doodle Road, Eagan, MN 55121 (for Respondent)

Considered and decided by Norton, Presiding Judge, Toussaint, Chief Judge, and Stone, Judge.

U N P U B L I S H E D O P I N I O N

STONE, Judge

Michael Sheridan challenges the district court's granting of partial summary judgment against him, arguing that the evidence on the issue of premises liability was sufficient to go to a jury. We reverse.

FACTS

Appellant Michael Sheridan and some friends went to respondent Roby's Bar & Lounge to have a few drinks after a meeting. Shortly after their arrival, Tim Ericksen, an off-duty part-time bouncer at Roby's, began staring at Sheridan and his friends. Ericksen approached their table on at least two different occasions and exchanged words with one or more members of the group. Both times, one of the bartenders separated the parties and sent Ericksen to the other side of the bar. One time, the bartender suggested that Ericksen leave, and another time, the bartender physically restrained Ericksen. When the bartender saw Ericksen head for the door, he went back to Sheridan's group and told them that everything would be all right because he had sent Ericksen on his way.

Ericksen left the bar for about 15 minutes and returned with some friends who worked as bouncers at other bars. The two groups had a physical encounter on the dance floor, requiring both bartenders to come out from behind the bar and separate them. During this encounter, Sheridan was either pushed or punched and ended up on the floor, although he was not badly injured. At some point in the fracas, another member of Sheridan's group was hit, and Ericksen got into a physical confrontation with a woman in Sheridan's group. The bartenders put one group at one end of the bar and the other group at the opposite end of the bar.

Approximately 30-60 minutes later, most of Sheridan's group left Roby's through the back door. Sheridan and his brother finished their beers and then exited through the back door as well. As the Sheridans were walking down the alley adjoining a parking lot immediately to the rear of the bar toward their car, they encountered Ericksen and some of his friends. Both brothers were assaulted, with Michael Sheridan suffering a severe injury to his eye. The Sheridans went back into Roby's, where they cleaned up and called the police.

Sheridan initiated a lawsuit alleging liquor liability, common law premises liability for Roby's failure to provide adequate protection, and assault and battery. The district court granted partial summary judgment in favor of Roby's on the issue of premises liability. This appeal followed.

D E C I S I O N

In reviewing a grant of summary judgment, this court must determine if any genuine issues of material fact exist and if the lower court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). This court views the evidence in the light most favorable to the party against whom judgment was granted. See Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

A bar owner has a duty to maintain safety and order for bar patrons. Schwingler v. Doebel, 309 N.W.2d 760, 762 (Minn. 1981). However,

"[a] proprietor is not liable for an injury inflicted by one patron against another unless, by some overt act or threat, the proprietor is put on notice of the offending patron's vicious or violent propensities, and having had an adequate opportunity to protect the injured party, the proprietor fails to take reasonable steps to do so."

Devine v. McLain, 306 N.W.2d 827, 830 (Minn. 1981) (quoting Evanish v. V.F.W. Post No. 2717, 269 Minn. 209, 211, 130 N.W.2d 331, 332-33 (1964)). A prerequisite to the existence of a duty is the foreseeability of an injury to a patron because of the "intoxication or vicious propensities of another individual permitted to frequent the premises." Schwingler, 309 N.W.2d at 762.

In Schwingler, the supreme court concluded that an altercation outside a bar was not foreseeable by the bar because of uncontradicted testimony that the defendant

had never behaved improperly at the tavern either as an employee or as a customer * * * and there was no evidence that [the defendant] was obviously intoxicated, loud, argumentative, or belligerent prior to the beer-throwing incident.

309 N.W.2d at 762. The court also noted that the plaintiff left the bar immediately after the first confrontation and there was no verbal threat made by the defendant. Id. at 762-63.

The district court concluded that the altercation in the alley was not foreseeable by Roby's because Sheridan "had left the bar and the Defendant [Ericksen] was still on the premises and all parties agreed that it appeared that the confrontation was over."

The record indicates that at the very moment Sheridan left the bar, Ericksen and his friends were still on the premises. However, the bartender stated in the police report that he realized Ericksen was gone right before Sheridan reentered the bar, injured. In his deposition, the bartender stated that he did not realize Ericksen was gone until after the injured Sheridan came through the front door. Thus, there appears to be little definitive evidence as to exactly when Ericksen left the premises.

Further, although both bartenders stated that everything was fine after the two parties were separated, only Ericksen stated that as far as he was concerned the confrontation was over. He contended that he was not even aware of when Sheridan left, claiming that he and his friends left Roby's to go to another bar in Superior. He also claimed that he did not make any statements threatening to get Sheridan later. Sheridan confirmed that Ericksen did not make any such statements.

In addition to statements regarding the altercations that took place in the bar, there is evidence in the record that Ericksen was drunk when he arrived at the bar, that he continued to drink while at the bar, and that he had been loud, argumentative, and belligerent. There is also evidence that Ericksen had pushed two other people in the bar, one of them a woman. Further, one of the bartenders stated that he knew Ericksen had called friends to help because Ericksen stated that he was not going to let six guys show him up. In addition, there is conflicting evidence about whether or not the bartenders were aware of previous altercations involving Ericksen and whether they told Sheridan that he was no match for Ericksen. Finally, there is evidence in the record that the bartenders had to separate the two groups of people physically, and neither group left the bar after the confrontation.

Here, there is evidence that the employees of the bar (1) had adequate notice of the violent propensities of Erickson, (2) had an adequate opportunity to protect Sheridan, (3) did not call the police, and (4) did not provide an escort for Sheridan. The statements on both sides of this dispute are not sufficient for a trial court to adjudge that there are no material issues of fact to be determined at trial.

In light of the conflicting evidence, we conclude that the issue of whether the altercation in the alley was foreseeable to be a close question, and close questions regarding foreseeability should be given to the jury. Lundgren v. Fultz, 354 N.W.2d 25, 28 (Minn. 1984). Thus, although Sheridan may not prevail at trial, he presented sufficient evidence to defeat a motion for summary judgment, and the issue of premises liability should go to trial together with the liquor liability and assault claims.

Reversed.


Footnotes

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, ' 10.