Alholm v. Wilt, No. CX-85-1238

• Court: Supreme Court of Minnesota (US)
• Writing for the Court: KELLEY
• Citation: 394 N.W.2d 488
• Parties: Terrance ALHOLM, Petitioner, Appellant, v. Richard WILT, d.b.a. Lakeside Bar, Petitioner, Respondent.
• Decision Date: 10 October 1986
• Docket Number: No. CX-85-1238

Page 488

394 N.W.2d 488 Terrance ALHOLM, Petitioner, Appellant,
v.
Richard WILT, d.b.a. Lakeside Bar, Petitioner, Respondent. No. CX-85-1238. Supreme Court of Minnesota. Oct. 10, 1986.

Page 489

Syllabus by the Court

1. Requested instructions which erroneously state the applicable law or which give undue prominence and emphasis to particular facts were properly denied by the trial court.

2. In the absence of prior agreement on the record concerning the method of seating jurors and alternate jurors, failure to employ a method that results in satisfying the policy considerations underlying the requirements of Minn.R.Civ.P. 47.02 constitutes reversible error even though the appellant failed to establish prejudice.

Harold R. Fritz, II, Nisswa, for appellant.

John W. Person, Brainerd, for respondent.

Heard, considered and decided by the court en banc.

KELLEY, Justice.

Appellant Alholm sued respondent Wilt, d.b.a. Lakeside Bar, claiming that respondent was liable for personal injury damages sustained by Alholm as the result of an alleged assault upon him by an intoxicated patron of the bar. On appeal from a jury verdict in favor of the bar owner, appellant Alholm contends the trial court erred in its jury instructions and erroneously impaneled the trial jury. A panel of the court of appeals affirmed the trial court's jury instructions, but remanded the case for retrial based upon the error of law which occurred in the selection of the jury and the seating of an alternate juror. ¹ We concur in the remand.

On August 15, 1980, appellant Alholm and his wife were patrons in the Lakeside Bar owned by Wilt. At the same time, Bill Miles was likewise a patron at the Lakeside. Appellant claims that as he was leaving the bar, Miles assaulted him without provocation. Miles had been drinking heavily throughout the day. He had been boisterous and loud in the bar. On prior occasions while at the bar, Miles engaged in arguments with other bar patrons resulting in "slapping matches" which, on at least two instances, spilled into an alley adjacent to the premises. On another earlier occasion, Miles engaged in a fight with Jim Compton, the bar's bouncer. Shortly before the alleged assault, the bartender on duty requested assistance from Compton when Miles and a companion had become obnoxious because she refused to serve him more liquor after "last call."

Appellant claims Miles assaulted him with a broken glass resulting in large and deep cuts in his right cheek and left upper arm, which required 71 stitches to close.

1. Alholm's claim against respondent Lakeside Bar was premised on innkeeper negligence liability. ² At the conclusion of the evidence in the second trial, the trial court instructed the jury on innkeeper liability using the four elements identified by the panel of the court of appeals in Alholm I, 348 N.W.2d 106, 109 (Minn.App.1984). ³

Page 490

The jury returned a verdict absolving respondent from causal negligence.

Contending that the court's instruction regarding foreseeability of injury was insufficiently specific, appellant requested the trial court to instruct the jury that:

The law recognizes drunken persons as a reasonably anticipated source of danger to others and therefore requires tavern keepers to exercise the highest degree of care to protect its patrons from harm at the hand of said drunken patrons.

In the alternative, he requested the court instruct:

Authorities recognize that drunken behavior is unpredictable, also that slight irritations, real or imaginary, may cause outbursts of anger and may lead to aggressive acts. The presence of an intoxicated person upon the premises immediately exposes the proprietor to the hazards of such person and when it appears that such intoxicated person might cause a disturbance or harm other patrons, the proprietor is obligated to do something more than request such a person to leave. There must be some affirmative action to maintain order on the premises by demanding that such person leave or by calling the authorities to enforce such demand. ⁴

Alholm contends that because the proffered charge is specific and is supported by the facts of the case, the trial court should be compelled to utilize the instruction. In so doing, he relies on Hagen v. Snow, 244 Minn. 101, 69 N.W.2d 100 (1955) and Nubbe v. Hardy Continental Hotel System of Minnesota, 225 Minn. 496, 31 N.W.2d 332 (1948).

Trial courts are allowed "considerable latitude" in selection of language in the jury charge. Cameron v. Evans, 241 Minn. 200, 208, 62 N.W.2d 793, 798 (1954), Barnes v. Northwest Airlines, Inc., 233 Minn. 410, 421, 47 N.W.2d 180, 187 (1951). They likewise possess broad latitude in determining the propriety of a specific instruction. Sandhofer v. Abbott Northwestern Hospital, 283 N.W.2d 362, 367 (Minn.1979). As we stated in Barnes:

All that is required in the way of instructions is that the charge as a whole convey to the jury a clear and correct understanding of the law of the case. The charge should not assume the existence of facts in controversy, or lay too much emphasis on particular facts or the testimony of particular witnesses.

233 Minn. at 421, 47 N.W.2d at 187. Appellant failed to demonstrate that the trial court abused its discretion in instructing as it did rather than using the proffered instructions. Even had the proffered instructions constituted a correct statement of the law, which they did not, provided the court's instruction appropriately stated the law, reversal will not follow "simply because the litigant preferred to use other language." Moosbruger v. McGraw-Edison Co., 284 Minn. 143, 158, 170 N.W.2d 72, 81 (1969).

Appellant's first proffered instruction used the words "highest degree" of care. Tavern owners in Minnesota have the duty to exercise reasonable care under the circumstances to protect their patrons from injury. There exists no duty to use "the highest degree of care." Filas v. Doner, 300 Minn. 137, 218 N.W.2d 467, 469 (1974), Priewe v. Bartz, 249 Minn. 488, 491, 83 N.W.2d 116, 119 (1957). Even in Sylvester v. Northwestern Hospital of Minneapolis, 236 Minn. 384, 386-88, 53 N.W.2d 17 (1952) (which was not an innkeeper liability case) relied upon by appellant, we restated that the appropriate standard was that of the use of reasonable care under the circumstances. 236 Minn. at 386, 387, 53 N.W.2d at 19, 20. Thus the trial court was clearly correct in its refusal to give appellant's first proffered instruction.

Moreover, the trial court correctly refused to give appellant's alternate proffered

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instruction. We have noted that it is neither appropriate nor good policy for trial courts to use texts of reported decisions of appellant courts because, when used out of context, such texts are sometimes misleading. See, e.g., Hovey v. Wagoner, 287 Minn. 546, 548-49, 177 N.W.2d 796, 798 (1970). We also have noted:

A court, through its instruction, is not authorized to give prominence to and emphasize particular facts disclosed by the evidence, thus singling out elements or views upon the controversy which were proper for argument and discussion by counsel, but which might very justly be declined to be thus noticed by the court.

Barnes, 233 Minn. at 420, 47 N.W.2d at 187. See also Cameron v. Evans, 241 Minn. 200, 208, 62 N.W.2d 793, 799 (1954).

Had the trial court given either of appellant's requested instructions, undue prominence would have been given to particular facts which might have misled the jury as to their importance. Emphasizing evidence is properly the function of counsel in closing argument, not by the court in its instructions. See, e.g., Van Tassel v. Hillerns, 311 Minn. 252, 257, 248 N.W.2d 313, 316 (1976).

The trial court properly rejected the proffered instructions, and gave a generally appropriate jury instruction on innkeeper liability. ⁵

2. Consistent with a method of jury selection employed by at least some, if not all, of the judges in civil cases tried in the Ninth Judicial District, the trial court selected a jury consisting of six jurors and one alternate to hear this case. To do so, eleven names were drawn at random from a larger panel. Each attorney exercised two peremptory challenges. The seven remaining persons heard the case. Neither the jury, the court nor counsel knew which person was to be the alternate juror, but appellant's counsel, not being familiar with the Ninth Judicial District procedure, assumed that the seventh juror seated would be the alternate. Immediately before submission, the court instructed the clerk to draw one name from the jury wheel. That person was designated the alternate and excused by the court. That person was not the seventh juror.

Juror Sens had been the seventh "juror" seated. She thus became one of the jury panel that ruled in favor of respondent. ⁶ She had formerly been a bar owner. During voir dire interrogation, she indicated that she was opposed to laws that made bar owners responsible for the acts of drunken people and that she thought such laws were unfair to bar owners. She acknowledged, however, that she knew the present case was not a "dram shop" case and recognized that bar owners...