This opinion will be unpublished and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

C2-96-855

David Hass,

Appellant,

vs.

Brian Chavez,

Defendant,

Kabanuk Diversified Investments, Inc.,

d/b/a Tropix Beach Club,

Respondent.

Hennepin County District Court

File No. 953289

Filed November 26, 1996

Affirmed

Amundson, Judge

James C. Wicka, Jeffrey M. Ellis, 1800 Fifth Street Towers, 150 South Fifth Street, Minneapolis, MN 55402 (for appellant)

Brian Chavez, St. Cloud Prison, 2305 Minnesota Boulevard South, Box B, St. Cloud, MN 56302 (pro se respondent)

Lawrence M. Baill, Steven Theesfeld, Yost & Baill, P.L.L.P., 2350 One Financial Plaza, Minneapolis, MN 55402 (for respondent Kabanuk Diversified Investments Inc.)

Considered and decided by Amundson, Presiding Judge, Huspeni, Judge, and Randall,

Judge.

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

AMUNDSON, Judge

Appellant David Hass challenges the district court's grant of summary judgment in favor of respondent Kabanuk Diversified Investments, Inc., d/b/a Tropix Beach Club. Hass argues that a "special relationship," necessary to impose a duty of reasonable care by respondent to appellant, existed between the parties. We affirm.

FACTS

David Hass and Brian Chavez were patrons at Tropix Beach Club (Tropix) on September 27, 1994. Tropix Beach Club is owned by Kabanuk Diversified Investment, Inc.

While in the bar, Hass noticed Chavez giving him "dirty looks." The two men had no other contact while in the bar. When Tropix closed, Hass left with Christine Nivens, a friend and employee of Tropix. The two walked along the side of the bar to the employee parking lot behind the club. Hass was then attacked by Chavez. The attack occurred on public property, about 90 feet from Tropix. Hass sustained facial lacerations and required surgery. Hass alleges he was attacked because he had dated Chavez's ex-girlfriend.

Hass had previously worked at Tropix, but was no longer working there when the attack occurred. Hass alleges that during his employment with Tropix, Chavez frequented the club and was later barred from the club for fighting. Hass alleges that Chavez was not allowed to return to Tropix. However, on the night of the attack, Chavez spent the evening at Tropix without incident.

Hass filed a personal injury suit against Chavez and Tropix in January 1995, alleging various tort claims. Chavez was arrested, found guilty of attempted first degree assault, and sentenced to 52 1\2 months. A default judgment against Chavez was entered in May 1995. Tropix moved for summary judgment, claiming Hass failed to put forth genuine issues of material fact to support his claim that Tropix had a special relationship with Hass and thus, owed him a duty of reasonable care. The district court granted the motion and Hass appealed.

D E C I S I O N

On appeal from summary judgment, this court must ask two questions: (1) whether there are any genuine issues of material fact, and (2) whether the lower court erred in their application of the law. See State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).

Hass argues that Tropix owed him a duty of reasonable care, and it should have protected him from Chavez's attack. The existence of a legal duty is an issue of law for the court to determine. Larson v. Larson, 373 N.W.2d 287, 289 (Minn. 1985).

A person generally has no duty to control a third person from causing injury to another. Delgado v. Lohmar, 289 N.W.2d 479, 483 (Minn. 1979). Whether such a duty exists depends upon two factors: (1) the existence of a special relationship between the defendant and the third person that imposes a duty to control, or between the defendant and the other which gives the other the right to protection, and (2) the foreseeability of the harm. Lundgren v. Fultz, 354 N.W.2d 25, 27 (Minn. 1984).

Tropix argues that summary judgment was properly granted in this case because Hass failed to show the existence of a special relationship between Tropix and Hass or Chavez.

A special relationship may be found in situations where one individual has in some way entrusted his safety to another and the other has accepted that entrustment. Erickson v. Curtis Inv. Co., 447 N.W.2d 165, 168 (Minn. 1989). For a special relationship to exist, the harm represented by the third person must be something the other is in a position to protect against and should be expected to protect against. Id.

A tavern owner has a special relationship with and owes a duty to maintain orderly premises to protect its patrons. Mettling v. Mulligan, 303 Minn. 8, 11-13, 225 N.W.2d 825, 827-28 (1975). Tropix does not dispute this duty to its patrons.

However, once the bar closed and Hass left the premises, the tavern-patron relationship ended. Hass stated that he left Tropix after it closed and was proceeding down a public sidewalk behind the bar when Chavez assaulted him. There is sufficient evidence in the record to support the trial court's determination that Tropix did not accept responsibility for Hass's safety after hours in an area that was not under the bar's control merely because he was a patron of the club.

Hass argues that Tropix voluntarily assumed a duty of reasonable care of the premises by patrolling the area around the club. He cites Isler v. Burman, 305 Minn. 288, 232 N.W.2d 818 (1975) in support of the proposition that once a party makes an inspection regarding a dangerous activity, the party voluntarily assumes a duty to make an adequate inspection. Isler, however, involved an injury that occurred because the inspector missed the area where the dangerous condition existed (a ditch that later caused a snowmobile to wreck), thereby failing to inform the parties of the danger.

Tropix acknowledges patrolling the publicly owned area around the club on Sunday nights. However, there is no evidence that Tropix "missed" a dangerous condition and then neglected to inform Hass. Chavez was not lurking in the shadows near Tropix, he was a patron in the club who was not causing security problems. Further, the club states that the "inspections" were not to check for dangerous activity, but to insure that underage patrons were not drinking in the parking lot.

Hass also argues that Tropix, as an entertainment provider, owed its patrons a duty of reasonable care to provide safe passage to and from the club. However, he provides no controlling or persuasive authority to support this assertion. There is no evidence in the record that indicates that Tropix owed Hass a duty of reasonable care after he left the bar and was walking on a nearby public sidewalk to his car, merely because he had previously been in the club.

Hass argues that Tropix knew Chavez was dangerous, yet allowed him to enter the club the night of the attack, thereby establishing a special relationship. We disagree. For a special relationship to be found, the defendant must have a duty to control the conduct of the third person in order to prevent that person from causing injury to another. Delgado, 289 N.W.2d at 483. Such a duty would exist only if Tropix knew or had reason to know it had the ability to control Chavez and knew or should have known of the necessity and opportunity for exercising such control. See Leaon v. Washington County, 397 N.W.2d 867, 873 (Minn. 1987).

Under Leaon, Tropix owed no duty to Hass. Hass testified that he saw Chavez "86'd" from Tropix in the past for fighting and, therefore, Tropix should have known of his violent nature. There is no evidence that Tropix knew or should have known that it could control Chavez. Even if Tropix had asked Chavez to leave that night, it is probable that the attack would still have occurred. The attacked happened after hours and behind the club on public property. If asked to leave, Chavez could have merely waited for Hass to leave Tropix and then attacked him.

Further, there is no evidence that Tropix knew or should have known of the necessity and opportunity to control Chavez. Hass testified that Chavez had been "86'd" from Tropix. Hass stated that he was aware of Tropix removing other patrons for fighting but they were later allowed to return to the club. There is no evidence that Chavez was barred from Tropix indefinitely.

Additionally, Hass testified that while he was in Tropix he had no fear of Chavez. Hass stated that he saw Chavez giving him "dirty looks," and only determined later that it was Chavez because a friend told him so. Hass had no fear of Chavez and, thus, did not inform Tropix of the potential problem. Chavez did not present any security problem while in the club, and was not asked to leave at any time. Tropix had no prior notice that Chavez would attack Hass after the club closed. Thus, the evidence supports the trial court's conclusion that no special relationship existed between Hass and Tropix.

Hass argues that the fact the attack occurred off the premises is immaterial if Chavez's violent tendencies were foreseeable to Tropix. However, because we conclude that there was no special relationship, we will not address Hass's foreseeability claims further. See Alholm v. Wilt, 348 N.W.2d 106, 109 (Minn. App. 1984) (requiring both foreseeability and a special relationship to impose a duty to control a third party), review denied (Minn. Sept. 12, 1984).

We deny respondent's motion to strike portions of appellant's brief or for the imposition of other sanctions.

Affirmed.