Filed April 10, 2007

Affirmed

Randall, Judge

Ramsey County District Court

File No. C5-05-007108

Robert E. Wilson, Robert Wilson & Associates, 404 Third Avenue North, Suite 201, Minneapolis, MN 55401 (for appellant)

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

RANDALL, Judge

This appeal results from a summary judgment granted against appellant’s personal injury action under Minnesota’s innkeeper liability law. Appellant argues that respondent was liable for appellant’s injuries under the innkeeper liability law because (1) notice of viciousness can be imputed to a group of people even if the injuring individual cannot be identified; and (2) the injury to appellant was foreseeable. Appellant also argues that the bar should be liable based on a theory of negligent security. We affirm on all issues.

FACTS

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 St. Paul. Minks sued The Cherry Pit for negligence.

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. Minn. R. Civ. P. 56.03; DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997). “On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the [district] court[] erred in [its] application of 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 and accepts as true the factual allegations of that party. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

I. Innkeeper liability

Bar owners “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 (Minn. 1986).

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.

Boone v. Martinez, 567 N.W.2d 508, 510 (Minn. 1997) (citation omitted). A prerequisite to foreseeability of injury is notice. Id. If the court concludes that the bar owner had no notice of the person’s violent tendencies, then the court must find that no duty to protect existed, because the assault would not have been foreseeable to a reasonable bar owner. Alholm, 394 N.W.2d at 491 n.5.

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.

Appellant relies on Connolly v. Nicollet Hotel, 254 Minn. 373, 95 N.W.2d 657 (1959). In Connolly, the court imposed a duty upon a hotel to guard the public from guests who where throwing objects out of windows to the sidewalk below. Id. at 386, 95 N.W.2d at 667. We understand appellant’s “dangerous atmosphere” argument but conclude that Connolly is distinguishable because unlike the bar here, the hotel was aware for days that continuous misconduct by its guests was endangering the public, but did nothing to prevent it. Id. at 383, 95 N.W.2d at 665. The Cherry Pit had only been open for two nights and lacked two continuous nights of fights.

Appellant 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 Minn. 402, 406, 18 N.W.2d 142, 145 (1945). Windorski is distinguishable, even though the attack happened suddenly, because unlike here, in Windorski, there was an identifiable assailant who engaged in “noisy preliminaries” with another patron prior to the incident. Id., 18 N.W.2d at 145.

Appellant 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 (Minn. 1981) (holding that foreseeability was lacking where the injuring individual voluntarily left the premises after a beer-throwing incident and then subsequently injured someone). The Cherry Pit took reasonable affirmative steps in response to the developing situation: (1) asking the rowdy patron to leave; (2) escorting the patron to the door; and (3) calling the police.

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

Appellant 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 Minnesota’s public policy goals and forces bar owners to accept responsibility for injuries to patrons.

The district court did not accept appellant’s public policy arguments, acknowledging instead, that established precedent exists in Minnesota regarding innkeeper liability. We find that so also and note specifically that the Minnesota Supreme Court has not adopted the Restatement (Second) of Torts § 344. We acknowledge that the Restatement (Second) of Torts is good secondary authority, but we point out simply that there are many recognized “Restatements” and it is never inevitable that all 50 states will accept them verbatim. Some states do and some states don’t.

Affirmed.