Bishop v. Fair Lanes Bowling, Inc.
| Decision Date | 15 January 1986 |
| Docket Number | Civ. A. No. C84-1531A,C84-1532A. |
| Citation | 623 F. Supp. 1195 |
| Parties | Stephen L. BISHOP, Plaintiff, v. FAIR LANES BOWLING, INC., Defendant. Deborah A. SMITH and Randy L. Smith, Plaintiffs, v. FAIR LANES BOWLING, INC., Defendant. |
| Court | U.S. District Court — Northern District of Georgia |
Gary S. Freed, Labovitz, Rosenberg & Campbell, Atlanta, Ga., Chester G. Rosenberg, Labovitz, Rosenberg & Campbell, for plaintiff.
Lowell S. Fine, Atlanta, Ga., for defendant.
Plaintiffs bring the above-styled actions essentially alleging that defendant was negligent in failing to ensure the safety and welfare of plaintiffs Stephen L. Bishop and Deborah A. Smith while they were invitees on defendant's premises, a bowling alley located in Norcross, Gwinnett County, Georgia.1 Specifically, plaintiffs allege that defendant failed to conform to the standard of conduct required of it when it continued to serve alcoholic beverages to visibly intoxicated persons who had displayed aggression toward plaintiffs Stephen Bishop and Deborah Smith, when it failed to control the actions of dangerous intoxicated persons, when it failed to provide adequate security personnel at the premises, especially in the parking lot immediately after closing, and when it allowed the parking lot lights to turn off automatically 10 minutes after closing. (See plaintiffs' response brief, pp. 5-6, summarizing plaintiffs' claims).
Presently pending is defendant's motion for summary judgment.2
Plaintiffs Stephen L. Bishop and Deborah A. Smith attended the "Midnight Madness" bowling session at Fair Lanes Georgia Bowling ("Fair Lanes") on May 14, 1953, arriving at approximately 1:00 a.m.. (Bishop Deposition, pp. 24-25).
The bowling alley had facilities to sell refreshments, including alcoholic beverages, to its patrons.
After bowling for approximately 50-55 minutes, plaintiff Deborah Smith noticed that her pitcher of beer was missing. (D. Smith Deposition, p. 20). She then inquired of certain persons bowling in the lane to her right as to whether they had seen what had happened to the missing pitcher of beer. (Smith Deposition, pp. 21-22). Three of these other persons are now known as Janet Eldridge, Randall Eldridge, and Steven Burke ("the Burke group"). (M.S. Burke Deposition, p. 26). Neither the plaintiffs nor the managers on duty that night at Fair Lanes knew of or could recall having seen any member of this group at Fair Lanes previously. (D. Smith Deposition, p. 21; Bishop Deposition, p. 35; Swanson Deposition, p. 19; Goodin Deposition, p. 52).
Earlier in the evening, the Burke group had met at a local restaurant at approximately 6:00 to 7:00 p.m. for dinner. (R. Eldridge Deposition, p. 25). Members of the Burke group drank beer continuously through dinner, and throughout the course of the evening until the bowling alley closed at 2:30 a.m.. (J. Eldridge Deposition, p. 41; R. Eldridge Deposition, pp. 49-50; M.S. Burke, Deposition, p. 20). As a result, Randall Eldridge, Janet Eldridge and Steven Burke were visibly intoxicated when they purchased beer by the pitcher at Fair Lanes. (S. Burke Deposition, pp. 34-35; R. Eldridge Deposition, p. 41; J. Eldridge Deposition, p. 40).
After plaintiff Deborah Smith's inquiry, the members of the Burke group then walked over to Bishop and Deborah Smith's lane and began a loud conversation.
Janet Eldridge came to within 4-5 inches of Deborah Smith's face and began speaking loudly to her, asking her if she and Bishop were accusing the Burke group of taking the pitcher of beer, asking if she and Bishop thought the Burke group couldn't afford their own beer, and asking Smith if she and Bishop wanted to bowl a game for a pitcher of beer. (D. Smith Deposition, pp. 38-39).
Randy Eldridge, in a "threatening" and "slurring" manner, asked if Smith and Bishop wanted to "go outside and resolve the matter." (D. Smith Deposition, p. 29).
Bishop perceived the Burke group to be "defensive", "aggravated", and "real disturbed" over being asked about the missing pitcher of beer. (Bishop Deposition, pp. 44, 63).
This conversation lasted anywhere from several minutes to 30 minutes. (Bishop Deposition, p. 57; M.S. Burke Deposition, p. 24). There is no evidence that any employee of defendant overheard or witnessed this confrontation.
After this confrontation ended, the Burke group returned to their lanes. (M.S. Burke Deposition, pp. 49-50). Thereafter, Bishop and Deborah Smith walked to the front counter to tell the manager on duty what happened. (D. Smith Deposition, pp. 40-41, 65-66; Bishop Deposition, pp. 69-71). Both Bishop and Smith specifically told the manager that the Burke group was intoxicated and being "loud", "unruly" and "making a lot of commotion", that they suspected that the Burke group had taken their pitcher of beer, that the Burke group had acted "aggressive" towards them, and that the Burke group was making Deborah Smith "uneasy" and "uncomfortable." (D. Smith Deposition, pp. 41-42, 59-60, 66; Bishop Deposition, pp. 69-70). Bishop and Smith specifically requested the manager to watch the Burke group for the rest of the evening. (D. Smith Deposition, pp. 40-41, 59-60; 65-66; Bishop Deposition, pp. 69-70).
Neither Bishop nor Smith told the manager that they were in fear of bodily harm or asked him to make the Burke group leave the bowling alley or even change lanes. (D. Smith Deposition, pp. 41-42; Bishop Deposition, pp. 70-71).
Plaintiffs Bishop and Deborah Smith then returned to their lanes and continued to bowl until the bowling alley closed, approximately one-half hour later.
The Burke group thereafter proceeded to "harass", "taunt", and "cause a difficult time" for Bishop and Smith until the bowling alley closed. (Bishop Deposition, pp. 57-64; D. Smith Deposition, pp. 25-30). This "harassment" consisted of staring and making comments, loudly enough so that Bishop and Smith could hear them but not directly to them, such as "we better watch their Bishop and Smith's beer and make sure no one takes it", "we hope nobody takes our beer", "maybe we should go tell the manager," "who do they Bishop and Smith think they are." (Bishop Deposition, pp. 57-58, 63; D. Smith Deposition, pp. 23-24). On at least one occasion, one member of the Burke group called Deborah Smith a "bitch" for accusing the Burke group of taking her beer. (D. Smith Deposition, pp. 23-24, 26). The Burke group also again challenged Smith and Bishop to a bowling game for a pitcher of beer and came over to their lane on several occasions to ask them what happened to their pitcher of beer. (D. Smith Deposition, p. 26). Bishop also heard Randy Elridge say he took the pitcher of beer intending for him and Smith to hear. (Bishop Deposition, p. 59).
As the bowling alley closed, Steve Burke approached Smith and Bishop and asked them sarcastically if they wanted half a pitcher of beer. When Bishop declined Burke retorted "look, I didn't steal your pitcher of beer." Bishop then said he had overheard Burke's friend say he took the pitcher of beer and that Burke ought to teach his friends some manners. Burke replied that he didn't know about his friends but he didn't take it, adding, in a belligerent tone, that if somebody had taken his beer and he knew who did it, he'd "beat ass", but that if anyone tried to hurt his friend, he would also "beat ass" to help him out. (Bishop Deposition, pp. 53-54, 65-66, 71; D. Smith Deposition, pp. 25-28). Bishop did not take this comment in anyway as a challenge by Burke to get into a fight or an altercation, but as a warning that if Bishop didn't leave Burke alone, Burke would "take him outside." (Bishop Deposition, p. 55).
At no time during the night did any member of the Burke group raise a fist to Bishop or Smith, make obscene gesters, touch Bishop or Smith, or otherwise use any threatening nonverbal form of communication. (Bishop Deposition, pp. 59-60). At no time did any member of the group explicitly threaten Bishop or Smith with physical harm. (Bishop Deposition, p. 74).
Neither the manager nor any other employee of Fair Lanes spoke to the Burke group about their behavior. In fact, neither Bishop, Deborah Smith or anyone in the Burke group noticed anyone from Fair Lanes monitoring their actions. (Bishop Deposition, p. 102; D. Smith Deposition, pp. 60, 65; S. Burke Deposition, p. 60; M.S. Burke Deposition, p. 27; J. Eldridge Deposition, pp. 48-49; R. Eldridge Deposition, p. 49).
The Burke group departed at approximately 2:30 a.m.. While the Burke group had said nothing to make Bishop think they would be waiting outside, Bishop and Smith waited five to ten minutes thereafter to avoid any possible additional problems with the Burke group in the parking lot. (Bishop Deposition, pp. 72, 74-75; D. Smith Deposition, pp. 31-36). An employee of defendant locked the doors behind Bishop and Smith as they departed since they were the last persons to leave the premises. (Bishop Deposition, pp. 109-111; D. Smith Deposition, pp. 60-61). Neither Bishop or Smith expressed to this employee any fear of a physical attack by the Burke group in the parking lot or elsewhere. The employee did not monitor the parking lot as Bishop and Smith departed.
In the parking lot, between 2:30 a.m. and 2:45 a.m., Bishop and Smith were confronted and accosted by the Burke group while they were getting in their car, and both Bishop and Smith were severely beaten. (Bishop Deposition, pp. 75-83; D. Smith Deposition, pp. 46-50). Smith ran to the front door while being chased by Janet Eldridge, and banged on the door to alert the employees of the bowling center. The manager responded and allowed Smith to enter the premises and call the police. (D. Smith Deposition, pp. 49-50; M.S. Burke Deposition, p. 38). Bishop was repeatedly struck in the face by Stephen Burke until the point of unconsciousness. (S. Burke Deposition, pp. 72-73; J. Eldridge Deposition, p. 55).
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Bishop v. Fair Lanes Georgia Bowling, Inc.
...Fair Lanes Georgia Bowling, Inc.'s (Fair Lanes) motion for summary judgment in this commercial premises liability case, 623 F.Supp. 1195. While we agree with much contained in the district court's order, we reverse the grant of summary judgment and remand the case to the district court for ......