Christian v. Vargas

• Decision Date: 05 September 1967
• Docket Number: No. 1,No. 42906,42906,1
• Citation: Christian v. Vargas, 157 S.E.2d 308, 116 Ga.App. 359 (Ga. App. 1967)
• Parties: Harold CHRISTIAN v. Louis VARGAS
• Court: Georgia Court of Appeals

Page 308

157 S.E.2d 308

116 Ga.App. 359

Harold CHRISTIAN v.Louis VARGAS.

No. 42906.

Court of Appeals of Georgia, Division No. 1.

Sept. 5, 1967.

Rehearing Denied Sept. 22, 1967.

Syllabus by the Court

The pleadings and evidence in this negligence action show no causal connection, legally attributable to the defendant, between the defendant's negligence, if any, and the plaintiff's injury; therefore, the motion for a summary judgment was properly granted.

Harold Christian brought an action against Louis Vargas, individually and doing business as Biuso's Italian-American Restaurant, for damages for personal injuries allegedly caused by the defendant's negligence.The petition, as amended, alleged substantially as follows: The plaintiff arrived at the defendant restaurant for the purpose of dining at approximately 1:45 a.m. on the morning of March 7, 1963, and one Alexander Jack Campbell, III entered the restaurant some time during the evening (sic) of March 7, 1963.At about 2:30 a.m., Campbell began a heated dispute with defendant's wife, Mrs. Vargas, toward the rear of the restaurant, using profanity and other obscene language.He then walked to the front of the restaurant, cursing as he went, stood up on a seat, waved a knife around and shouted threats to everyone in the restaurant, including the plaintiff.Two of defendant's employees attempted to remove Campbell from the establishment and a scuffle ensued, after which Campbell and others walked outside the front door.'At said time and place there were approximately 10 to 15 people gathered immediately outside of the front door of said defendant establishment, where a melee was in progress.'(Emphasis supplied)At approximately this time, plaintiff finished his meal, paid his check, and walked out the front door, whereupon he was violently and viciously struck on the head and knocked to the sidewalk immediately outside the door, causing his alleged injuries.At this time there were approximately 75 to 100 persons dining in the restaurant.Campbell had frequented the restaurant often in the past, had caused disturbances there resulting in his arrest by the police on one occasion, and had been barred from the bar by the defendant because of his proclivity for heavy drinking and trouble making.Although Mrs. Vargas and the bartender knew of the above, Campbell nevertheless was served intoxicating drinks at the times complained of.The defendant's alleged negligence consisted of: (a) failing to use ordinary care in keeping the premises and approaches safe for plaintiff; (b) allowing Campbell, known to be a trouble maker and likely to create a disturbance, to enter the restaurant where 75 to 100 persons were dining; (c) allowing Campbell to enter the restaurant while defendant, through his agents and servants, knew, or in the exercise of ordinary care should have known, him to be intoxicated and likely to cause trouble; (d) allowing plaintiff, a customer, to leave the restaurant when defendant knew, or should have known, that it was not safe to do so; (e) failing to warn plaintiff of a dangerous situation outside the restaurant; (f) serving intoxicating drinks to Campbell and allowing him to become intoxicated while on the premises.

The defendant filed an answer and a general demurrer to the petition, which demurrerhe later withdrew.Defendant then moved for a summary judgment based upon the pleadings, the depositions of the plaintiff, the defendant and defendant's wife, interrogatories and responses thereto and certain testimony of the plaintiff given in the Criminal Court of Fulton County in a criminal case against Campbell arising out of the events which are the basis of the present action.After considering the above evidence, the court sustained the motion for a summary judgment, from which judgment the plaintiff appeals.

Lipshutz, Macey, Zusmann & Sikes, Robert A. Elsner, J. Timothy White, Atlanta, for appellant.

Long, Weinberg & Ansley, Ben L. Weinberg, Jr., John K. Dunlap, Nick Lambros, Atlanta, for appellee.

FELTON, Chief Judge.

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