Kerby v. Flamingo Club, Inc.
| Decision Date | 17 December 1974 |
| Docket Number | No. 73--391,73--391 |
| Citation | 35 Colo.App. 127,532 P.2d 975 |
| Parties | Lurenda KERBY, Plaintiff-Appellee, v. The FLAMINGO CLUB, INC., a Colorado Corporation, Defendant-Appellant. . II |
| Court | Colorado Court of Appeals |
Feder & Morris, P.C., Harold A. Feder, Denver, for plaintiff-appellee.
Gavend, Sullivan & Bryans, Kerry L. Sullivan, David M. Bryans, Denver, for defendant-appellant.
Defendant, The Flamingo Club, Inc., appeals from a judgment entered upon a jury verdict for $250,000 in a wrongful death action. We affirm.
Viewing the admissible evidence in a light most favorable to the successful party, as we must, See J & K Construction Co. v. Molton, 154 Colo. 214, 390 P.2d 68, the record reflects the following. On January 31, 1971, Thomas Kerby was 34 years of age and married to the plaintiff. The couple had two children, aged five years and 14 months. Kerby was in good health and employed full-time as an insurance salesman and part-time as a Yellow Cab driver on weekends. In addition to his employment, Kerby was enrolled in college to obtain a master's degree in business.
At approximately 2 a.m. on January 31, 1971, and while operating a Yellow Cab, Kerby was summoned to The Flamingo Club in Commerce City to pick up passengers. The Flamingo Club was licensed to sell alcohol to persons on the premises and is referred to hereafter as the 'tavern.' Kerby pulled to a stop in the tavern parking lot near the main entrance, and a man and a woman entered the cab. Thereupon Teddy Crespin, a patron at the club, attempted to pull the woman passenger from the cab. Kerby interceded on her behalf, a fight ensued, and Kerby was attacked by four or more patrons of the tavern. In the process, Kerby was knocked to the ground and then kicked, receiving fatal injuries. Two of the assailants were convicted of first degree murder, and Crespin pled guilty to voluntary manslaughter.
As of the date of this incident, Jerry Hampton was the manager of the tavern. He had employed Robert Bernal as a 'bouncer.' Both men were working at the tavern at the time of Kerby's death.
The bouncer's duties consisted of checking identifications of patrons, waiting tables, and removing unruly patrons. However, when the club became extremely busy, the bouncer was not required to check identifications. All employees of the club were allowed to drink while working on the premises.
During the year prior to this incident, a number of fights, arguments, and disturbances had occurred between patrons and between patrons and the manager on or near the tavern premises, resulting in numerous contacts from the Commerce City Police Department. The manager was aware that some customers had been injured in conjunction with these altercations, and the manager had broken up at least one fight on the parking lot. Nevertheless, the bouncer did not consider his duties to include any supervision of the parking lot for any purpose except to recover property of the tavern taken from the premises by patrons.
Crespin was 19 years of age on the date of the murder. Crespin consumed a number of beers while at the tavern, commencing at approximately 8 p.m. in the evening. He had devoted most of his time during the evening trying to convince the woman for whom Kerby's cab was subsequently called that she should 'go home with him.'
One of the other assailants had been drinking beer at another tavern in the afternoon on the date in question. Later he passed out at still another tavern. Eventually he wound up at The Flamingo Club with the second assailant and was served by the bouncer, even though he was intoxicated and staggering. The second assailant was a minor and was also intoxicated to some degree. The bouncer was purchasing beer which was consumed by both of these assailants. Still another patron who was drinking with the convicted assailants was removed by the bouncer twice during the evening for his behavior. However, none of Kerby's known assailants misbehaved while in the tavern.
After everyone had left the tavern at closing time, the doors were locked, the outside sign was turned off, and the curtains on the window facing the parking lot were closed. The parking lot was then semi-dark. Nevertheless, if people were talking in the parking lot in a loud manner, they could be heard inside the tavern. The assault on Kerby was accompanied by loud shouting and other noises, and the altercation consumed 15 or 20 minutes. Neither Hampton nor the bouncer (who were both present in the tavern) went to the parking lot until contacted inside the tavern and specifically informed of the fight. At that time, Kerby was lying on the ground, and the fight had ended. He died thereafter from the injuries received.
Kerby's widow filed the present action, asserting three separate claims for relief. The tavern answered denying liability and affirmatively alleged that decedent's death resulted from negligence of a party over whom the tavern had no control and assumption of the risk by the decedent.
In the first claim, the widow alleged that the tavern was liable under a theory of landowner's premises liability for general negligence. Following presentation of evidence by the widow, a directed verdict for defendant was entered on all claims except the first. The tavern elected not to present evidence in its defense, and the case was submitted to the jury. The jury then returned a verdict for the widow.
Plaintiff's position in the trial court and here is, in effect, that the evidence established the tavern's liability under her first claim upon three different theories of recovery: (1) That the tavern, based upon knowledge of prior fights and disturbances, was responsible for supplying an off-duty officer or other similarly qualified person to supervise the parking lot at closing; (2) that the manager and bouncer had a responsibility to intervene in the fight when they knew or should have known that the fight was in progress; and (3) that the tavern furnished alcohol to two of the assailants two were minors and to all of the assailants when they were intoxicated and that such intoxication was a proximate cause of the death of Thomas Kerby.
In this appeal, the tavern first asserts that the trial court erred in not granting its motion for directed verdict as to the first claim. In support of this contention, the tavern contends that there was no evidence that it knew or should have known that Crespin and the assailants were violent men or that they would engage decedent in the fatal altercation after the tavern closed, and that, therefore, it cannot be held liable. We disagree.
Liability of business proprietors has recently been extended by eliminating the requirement of notice, either actual or constructive, of a specific condition, 'when the operating methods of a proprietor are such that dangerous conditions are continuous or easily foreseeable . . ..' Jasko v. F. W. Woolworth Co., 177 Colo. 418, 494 P.2d 839. The duty of the business proprietor extends to the decedent, although not a patron, since the status of the injured party on the premises is not dispositive of his rights. Mile High Fence Co. v. Radovich, 175 Colo. 537, 489 P.2d 308. Here the tavern manager conceded that fights occurred on the premises, including the parking lot, and at least nine police contacts were necessitated by fights and disturbances on the tavern premises in the year preceding the assault on Thomas Kerby. Hence, the jury could find, under these circumstances, that the tavern was negligent in failing to take affirmative steps to protect persons lawfully on the premises from injury resulting from fights and disturbances, both during operating hours and for a reasonable time after closing.
Plaintiff's second theory of recovery is supported by the evidence. The duty to exercise reasonable care for the protection of persons lawfully on the premises extends not only to those inside the tavern but to persons present on the tavern parking lot. See Schneider v. Pinnt, 173 Colo. 232, 476 P.2d 1004. The duty includes the responsibility to intervene in any altercation to protect persons lawfully on the premises once the tavern employees know or should know that an altercation is in progress. See Vigil v. Pine, 176 Colo. 384, 409 P.2d 934.
Here there is evidence from which the jury could properly determine that: The fight took place over a span of 15...
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