Waldron v. Hammond, 38904

• Decision Date: 01 June 1967
• Docket Number: No. 38904,38904
• Court: Washington Supreme Court
• Parties: Donald C. WALDRON and Phanoy Waldron, husband and wife, Respondents, v. Bruce M. HAMMOND, Defendant, Percy N. Rogers, Appellant.

Page 361

71 Wn.2d 361

428 P.2d 589

Donald C. WALDRON and Phanoy Waldron, husband and wife, Respondents, v. Bruce M. HAMMOND, Defendant, Percy N. Rogers, Appellant.

No. 38904.

Supreme Court of Washington, Department 2.

June 1, 1967.

Severyns & Moffett, Tyler C. Moffett, Port Angeles, for appellant.

Howard V. Doherty, Port Angeles, for respondents.

HAMILTON, Judge.

This is an appeal by a tavern keeper from a judgment entered upon a jury verdict awarding damages to a patron assaulted in the tavern by another patron. The evidence, viewed in a light most favorable to respondent, ¹ indicates the following factual pattern:

On April 5, 1964, plaintiff-respondent Donald C. Waldron was a paying patron of the Wagon Wheel Tavern, owned and operated by defendant-appellant Percy N. Rogers. Another patron of the tavern, defendant Bruce M. Hammond rowdily struck a third patron in the nose without apparent provocation. Waldron orally registered his disapproval. Hammond thereupon extended an invitation to Waldron to settle their difference of opinion over fists in the vacant lot across the street. Waldron reluctantly accepted the invitation and the men journeyed to the appointed place. Upon observing that Hammond might receive more than moral support from two friends, Waldron withdraw to the tavern where he requested the bartender to notify the police. The police and appellant Rogers were then called and informed of the situation. Although Waldron refused to sign a complaint, the police contacted Hammond and extracted a promise that he would not return to the tavern that evening nor cause further trouble. Appellant Rogers, an experienced tavern keeper and one wise in the ways of pugnacious patrons, in turn, instructed the bartender to call the police if Hammond returned while Waldron was in the tavern and to pass such instructions on to the lady bartender, Mrs. Sylvia Sommerfeld, who would be in charge during the evening. Appellant Rogers then left. Waldron remained in the tavern.

In the meantime, Hammond with some of his friends visited and indulged at other establishments, and, so the evidence indicates, discussed the prospects of 'getting somebody,' presumably Waldron. Shortly after 7 p.m., and after Mrs. Sommerfeld came on duty in the tavern, Hammond returned. Mrs. Sommerfeld refused him service and, instead of calling the police, undertood to engage him in pacifying conversation. At a moment when her attention was devoted to other duties, Hammond, without warning, struck Waldron knocking him from his barstool to the floor thereby inflicting severe and disabling injuries. Mrs. Sommerfeld then called the police and Hammond departed the tavern by the back door. The police arrived in minutes, an ambulance was summoned, Waldron was taken to the hospital, and Hammond was subsequently charged and convicted of disorderly conduct. This suit followed, Waldron essentially asserting that appellant Rogers was negligent in failing to take due precautions to protect a patron from injury by another patron who appellant knew or should have known was likely to cause harm.

Against the foregoing background, appellant first challenges the sufficiency of the evidence to sustain a finding of liability on his part.

We are unable to agree with this argument.

This court, in common with courts of other jurisdictions, has accepted and adhered to the rule that the keeper of an establishment wherein intoxicating liquors are dispensed, while not an insurer of the safety of his patrons, owes the duty to his patrons to exercise reasonable care and vigilance to protect them from reasonably foreseeable injury, mistreatment or annoyance at the hands of other patrons. Miller v. Staton, 58 Wash.2d 879, 356 P.2d 333 (1961); Peck v. Gerber, 154 Or. 126, 59 P.2d 675, 106 A.L.R. 996 (1936); Thomas v. Bruza, 151 Cal.App.2d 150, 311 P.2d 128 (1957); Slawinski v. Mocettini, 217 Cal.App.2d 192, 31 Cal.Rptr. 613 (1963); Gorby v. Yeomans, 4 Mich.App. 339, 144 N.W.2d 837 (1966); and other cases cited in Annot., 70 A.L.R.2d 628, Patron-Injury by Third Person, §§ 17, 18, commencing at 655 (1960).

Measured by the foregoing standard of duty and care, we are satisfied the evidentiary pattern outlined above fully warranted submission of the issue of appellant's liability to the jury. And, we are likewise convinced that under the evidence, the jury was entitled to find (a) that appellant, under the circumstances, knew or should have known of the likelihood that Hammond would return to the tavern and pursue his earlier evinced pugilistic inclinations toward respondent; (b) that appellant failed to exercise reasonable care by leaving the tavern in sole charge of Mrs. Sommerfeld who was either unable or unwilling to assert proper control; and (c) that appellant's failure...