Crown Liquors of Broward, Inc. v. Evenrud, s. 82-2270

• Decision Date: 01 June 1983
• Docket Number: 82-2271,Nos. 82-2270,s. 82-2270
• Citation: 436 So.2d 927
• Parties: CROWN LIQUORS OF BROWARD, INC., and Belle Fonte Insurance Company, Appellants, v. Daniel EVENRUD, Appellee.
• Court: Florida District Court of Appeals

Page 927

436 So.2d 927

CROWN LIQUORS OF BROWARD, INC., and Belle Fonte Insurance Company, Appellants, v. Daniel EVENRUD, Appellee.

Nos. 82-2270, 82-2271.

District Court of Appeal of Florida Second District.

June 1, 1983.

Rehearing Denied Sept. 7, 1983.

Davis W. Duke, Jr., of McCune, Hiaasen, Crum, Ferris & Gardner, P.A., Fort Lauderdale, for Crown Liquors.

Michael L. Kinney and T. Gregory Slother of Marlow, Shofi, Ortmayer, Smith, Connell & Valerius, Tampa, for Belle Fonte Ins. Co.

Paul Castagliola of Riden, Watson & Goldstein, P.A., St. Petersburg, for appellee.

SCHEB, Acting Chief Judge.

Appellants, Crown Liquors and its insurer, challenge a jury verdict awarding damages to appellee Daniel Evenrud for Crown's negligence in failing to prevent injury to Evenrud, one of its customers. We hold the evidence was insufficient to show a breach of duty by Crown, and that the trial court erred in denying appellants' motions for directed verdict.

Evenrud sued Crown and its insurer and Julio Santas seeking compensatory and punitive damages for injuries he received when he was allegedly struck by Santas at the Crown Lounge in St. Petersburg. In his multi-count complaint, Evenrud alleged that Crown was negligent in failing to exercise reasonable care to maintain its premises in a safe condition and in failing to supervise its patrons for the purpose of preventing injury from known risks. ¹ Appellants (Crown and its insurer) answered by denying negligence and pled comparative negligence on Evenrud's part. The court denied appellant's motions for directed verdicts on the above counts, and the jury awarded Evenrud compensatory damages of $150,000 against Crown and its insurer and punitive damages of $200,000 against Crown. After the court denied appellants' post-trial motions, this appeal ensued.

The relevant facts are simple and uncontroverted. On the evening of August 18, 1979, Evenrud stopped in at the Crown Lounge, where he had been a frequent patron the last year or so. The lounge, owned and operated by Crown Liquors, sold alcoholic beverages for consumption on the premises and provided music for dancing and entertainment of its customers. Julio Santas and his girlfriend, Patti Yonce, were already at the lounge that night. After having a couple of drinks and being in the lounge for a while, Evenrud's next recollection was of waking up sometime later in the hospital and not knowing what had happened to him. The testimony of other witnesses revealed that while Evenrud was dancing with Yonce, Santas approached him and delivered the one and only blow of the encounter. Evenrud went down quickly from the punch, hit his head on the floor, and lay there bleeding from the left ear.

During the trial several witnesses testified as to the events of August 18. Additionally, four officers of the St. Petersburg Police Department testified, over appellants' objections, that the Crown Lounge had a reputation as a problem spot in the community. Officer Spangella, who patrolled the area for a year and a half prior to August 18, 1979, testified, "we had problems almost every evening in the bar." Sergeant Potts stated, "I had more complaints of fights and injuries at that bar than any other."

Over relevancy objections of appellants, Evenrud was also allowed to introduce evidence of two specific disturbances at the lounge, both involving Patti Yonce. In May 1979 Yonce began a squabble with three males and was kicking and swinging at them. However, everyone calmed down and quickly went back to drinking together, and no one was ejected from the premises as a result. The second incident was on July 3, 1979, when Yonce, apparently angered by observing Santas dancing with another girl, got into an altercation with the girl. The girl retaliated by hitting Yonce with a beer bottle, and Yonce had to be taken to the hospital.

Evenrud introduced into evidence the written rules utilized internally by Crown for the guidance of its bartenders, barmaids, and bouncers. Two executive supervisors for Crown testified that intoxicated and violent people were to be barred for the protection of other patrons. Both witnesses stated that circumstances as serious as the July 3 and August 18 incidents would warrant a written report, cause the participants to be temporarily barred, and be the subject of a meeting among Crown employees. Although one supervisor admitted having been orally informed of both incidents, neither supervisor had any knowledge of any meeting, written report, or barring relative to those two incidents. There was never any written list of those persons previously barred or involved in violence, and the only means of implementing the barring process was by word of mouth or a face to name recognition of the barred individual by any employee.

Appellants contend that the trial court erred in failing to grant their motions for directed verdict. We agree.

A tavern owner or operator has a duty to maintain his premises in a reasonably safe condition. This includes the duty of preventing injuries, the risk of which is known, to the owner. Spillers v. Hall, 428 So.2d 268 (Fla. 2d DCA 1982); Worth v. Stahl, 388 So.2d 340 (Fla. 4th DCA 1980). However, such owner or operator is not an insurer of the safety of its patrons; and is not liable in damages to one who is injured unless it has notice of the danger involved and an opportunity to protect against it. Highlands Insurance Co. v. Gilday, 398 So.2d 834 (Fla. 4th DCA), cert. denied, 411 So.2d 382 (Fla.1981). In order for Crown to be held liable, it must have been foreseeable by Crown that Santas was going to attack Evenrud.

Here, there was no evidence presented that Santas had ever been involved in a fight at Crown Lounge. Furthermore, there was no warning that Santas had violent propensities or of any impending violence by Santas, which could have put Crown on notice in time to prevent the fight. To the contrary, there was testimony that Santas was a "nice person" and had never caused any problems. As noted in Bryant v. Jax Liquors, 352 So.2d 542 (Fla. 1st DCA 1977), cert. denied, 365 So.2d 710 (Fla.1978), foreseeability is an essential element which must be established to predicate liability based on negligence, and what is "foreseeable" is not "what might possibly occur." Here, Evenrud's...