Michael F. Brickey, Appellant, vs. D & R Properties, Inc., d/b/a Le Grand Supper Club, Respondent, Joe McCorison, Defendant. C3-97-1961, Court of Appeals Unpublished, March 3, 1998.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-97-1961

Michael F. Brickey,

Appellant,

vs.

D & R Properties, Inc.,

d/b/a Le Grand Supper Club,

Respondent,

Joe McCorison,

Defendant.

Filed March 3, 1998

Affirmed

Davies, Judge

St. Louis County District Court

File No. C797600516

Robert M. Kaner, 508 Alworth Bldg., 306 West Superior St., Duluth, MN 55802 (for appellant)

Michael S. Kreidler, Kristi K. Ottmar, Stich, Angell, Kreidler, Brownson & Ballou, P.A., The Crossings, Suite 120, 250 Second Ave. S., Minneapolis, MN 55401 (for respondent)

Considered and decided by Davies, Presiding Judge, Peterson, Judge, and Foley, Judge.^* ^* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

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

DAVIES, Judge

Appellant contests summary judgment. We affirm.

FACTS

Appellant Michael F. Brickey was injured during an altercation with Joe McCorison at the Le Grand Supper Club in Duluth. Appellant initiated a personal injury suit against respondent D & R Properties, Inc., owner of the supper club, alleging general negligence and liquor liability. D & R moved for summary judgment on the general negligence issue. The district court granted the motion and final judgment. This appeal is from that judgment. The dram shop claim and action against McCorison are not involved in the appeal.

D E C I S I O N

On appeal from a district court's grant of summary judgment, an appellate court must determine: "(1) whether there are any genuine issues of material fact; and (2) whether the lower court erred in its application of the law." Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995). An issue of fact is material if it would affect the outcome of the case. Zappa v. Fahey, 310 Minn. 555, 556, 245 N.W.2d 258, 259-60 (1976). An appellate court is not bound by a district court's decision on a purely legal issue. Summit House Co. v. Gershman, 502 N.W.2d 422, 423-24 (Minn. App. 1993).

A tavern owner must maintain order for the protection of the tavern's patrons. Schwingler v. Doebel, 309 N.W.2d 760, 762 (Minn. 1981). To establish a tavern owner's negligence regarding a patron's behavior, 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.

Boone v. Martinez, 567 N.W.2d 508, 510 (Minn. 1997) (citing Alholm v. Wilt, 394 N.W.2d 488, 489 n.3 (Minn. 1986)). The district court found that appellant had not proven any of these elements.

The foreseeability of injury required for the imposition of liability on a bar is normally found in the bar's knowledge of the dangerous propensities of the person inflicting the injury.

Devine v. McLain, 306 N.W.2d 827, 830 (Minn. 1981). When a bar owner has no notice of a patron's dangerous propensities, injury to a patron is not foreseeable and liability will not attach. Alholm, 394 N.W.2d at 491 n.5; Evanish v. V.F.W. Post No. 2717, Ely, 269 Minn. 209, 212, 130 N.W.2d 331, 333 (Minn. 1964). Neither McCorison's prior visits to the club nor his obnoxious behavior the night of the injury gave the club's owner and employees notice of dangerous propensity. Thus, appellant's injury was not foreseeable but rather was the result of a sudden and unforeseeable incident, giving the club's employees no opportunity to protect appellant from harm. See Boone, 567 N.W.2d at 511 (bar owner not liable for injuries resulting from "sudden and unforeseeable" fight); Filas v. Daher, 300 Minn. 137, 142, 218 N.W.2d 467, 470 (Minn. 1974) (bar owner not liable for "failing to anticipate unusual or abnormal conduct").

The club's employees also took reasonable steps to protect the safety of the club's patrons. At their first notice of potential trouble, the employees emptied McCorison's drink, refused to serve him another, and called the police to remove him from the club.

The district court did not err by granting summary judgment in favor of respondent D & R Properties on the general negligence issue.

Affirmed.