Delozier v. Evans

• Decision Date: 14 July 1988
• Docket Number: CA-CIV,No. 1,1
• Citation: 158 Ariz. 490,763 P.2d 986
• Parties: Chester DELOZIER, Plaintiff-Appellee, v. Wilbur EVANS and Ella Evans, husband and wife, Defendants-Appellants. 9573.
• Court: Arizona Court of Appeals

Page 986

763 P.2d 986

158 Ariz. 490

Chester DELOZIER, Plaintiff-Appellee, v. Wilbur EVANS and Ella Evans, husband and wife, Defendants-Appellants.

No. 1 CA-CIV 9573.

Court of Appeals of Arizona,

Division 1, Department C.

July 14, 1988.

Reconsideration Denied Aug. 25, 1988.

Review Denied Nov. 29, 1988.

[158 Ariz. 491] Robinson & Syme by James J. Syme, Jr., Glendale, for plaintiff-appellee.

George M. Sterling, Jr., Phoenix, for defendants-appellants.

OPINION

J. LaMAR SHELLEY, Judge Pro Tem.

Plaintiff, Chester Delozier, initiated this action against defendants, Wilbur Evans and Ella Evans, owners of the Bar X Tavern, after he was struck on the head with a baseball bat by assailants who had not been identified or apprehended as of the time of the trial. One of the assailants had been in the tavern and had been involved in an altercation with two men earlier that evening.

After trial, the jury returned a verdict for $65,000 in favor of Delozier. The defendants moved for judgment notwithstanding the verdict or, in the alternative, for a new trial and an amendment of the judgment. The trial court denied the motions with the exception of striking an award of prejudgment interest, and entered a formal judgment on the verdict.

While there were conflicts in the testimony, there was competent evidence from which the jury could have found the facts to be as follows.

At approximately 1:00 a.m. on April 30, 1984, three unknown men armed with baseball bats came into the Bar X Tavern in Phoenix and assaulted two patrons at the end of the bar near the front door. As the assailants began to leave through the rear door, one of the men struck Delozier on the head with a baseball bat, causing him serious injuries.

Unknown to Delozier, one of the assailants had been involved in an altercation at the tavern with two customers earlier that evening. This unidentified individual had been intoxicated, had argued with the two customers, and had fought with them in the parking lot. Immediately after the fight, he had returned to the tavern, appearing to have been beaten. Wiping blood from his face with a rag borrowed from the bartender, he had said to her, "I'm coming back with some friends of mine, I'm going to tear this place apart."

The bartender testified that although she had heard threats in bars many times before and had not seen any of them carried out, she did take this threat seriously. Notwithstanding the fact that she took the threat seriously, she did not warn anyone or take any other steps to protect the customers. She testified that she did not believe it was her obligation to warn customers that somebody who made a threat might come back.

Evidence was presented at trial that Delozier had been in the tavern when the threat was made and may have been involved in the earlier altercation. Whether this was true was a jury question, and we must view the evidence in the light most favorable to the prevailing party and give that party all reasonable inferences arising from that favorable view of the evidence. McFarlin v. Hall, 127 Ariz. 220, 224, 619 P.2d 729, 733 (1980). We find that there was sufficient evidence, if believed by the jury, to support a finding that Delozier was not on the premises during the earlier altercation. This evidence underlies the issue whether the defendants' employee was negligent in failing to warn Delozier.

The defendants contend that the trial court erred by: (1) submitting the issue of negligence to the jury; (2) admitting the deposition testimony of the bartender; (3) excluding evidence of Delozier's character for aggressiveness; and (4) entering judgment against defendant Ella Evans. We find no error and affirm the judgment.

WAS THE ISSUE OF NEGLIGENCE PROPERLY SUBMITTED TO THE JURY?

Defendants argue that foreseeability is a legal question which the court should have decided in their favor. Specifically, they assert that because the threat by Delozier's assailant was nonspecific and the potential for injury to Delozier was not foreseeable, defendants had no duty to warn Delozier of possible injury while he patronized their tavern. Defendants thus argue that the court should determine whether there was a breach of duty before deciding whether defendants were under an obligation to use some degree of care to avoid or to prevent injury to Delozier. This contention confuses the relationship between duty and negligence as explained in Markowitz v. Arizona Parks Board, 146 Ariz. 352, 706 P.2d 364 (1985). See Comment, The Clarification of the Duty Concept in Personal Injury Suits in Arizona, 28 Ariz.L.Rev. 323 (1986).

1. Duty

In Markowitz, the Arizona Supreme Court stated that:

[t]he question of duty is decided by the court. The question is whether the relationship of the parties was such that the defendant was under an obligation to use some care to avoid or prevent injury to the plaintiff. If the answer is no, the defendant is not liable even though he may have acted negligently in light of the foreseeable risks.

Id. at 356, 706 P.2d at 368. Therefore, before we reach the issue of breach of duty, we must first decide whether there was a duty. See McDonald v. Smitty's, 157 Ariz. 316, 757 P.2d 120 (Ct.App.1988).

The duty of tavern owners to exercise reasonable care and diligence to protect their invitees from injury has been recognized in several Arizona cases. See McFarlin; Sucanick v. Clayton, 152 Ariz. 158, 730 P.2d 867 (App.1986); Hebert v. Club 37 Bar, 145 Ariz. 351, 701 P.2d 847 (App.1984); Pierce v. Lopez, 16 Ariz.App. 54, 490 P.2d 1182 (1971). The defendants clearly owed this duty to Delozier. A separate question is whether they breached it when they failed to warn him of the threat.

The duty of a tavern owner is to exercise reasonable care and diligence to protect its invitees from injury, and the duty question is not determined by whether a particular patron should have been warned of impending injury. The Arizona Supreme Court stated in Coburn v. City of Tucson, 143 Ariz. 50, 52, 691 P.2d 1078, 1080 (1984):

We believe that an attempt to equate the concept of "duty" with such specific details on conduct is unwise. Attempting to define or evaluate conduct in terms of duty tends to rigidify the concept of negligence--a concept which by definition, must vary from case to case, depending upon the relationship of the parties and the facts of such case.

See also Comment, The Clarification of the Duty Concept at 327.

2. Standard of Care

Even where tavern owners have the duty to exercise reasonable care and diligence to protect their invitees from injury, this does not automatically impose liability for injuries on tavern owners as defendants. After it has been determined that such defendants had a duty, the standard of care imposed on the defendants must be determined, and finally, whether the defendants breached that standard. Markowitz, 146 Ariz. at 356, 706 P.2d at 368. In this case, the standard of care imposed on defendants, as tavern owners, was to exercise reasonable care and diligence to protect their invitees from injury. McFarlin, 127 Ariz. at 222, 619 P.2d at 731.

3. Breach of Duty

We next determine whether there was a breach of duty, or in other words whether defendants were negligent. The test for whether conduct is negligent is whether it subjects others to foreseeable and unreasonable risk of injury. Markowitz, 146 Ariz. at 357, 706 P.2d at 369.

The general rule to be applied is that where reasonable people could differ as to whether the danger of some injury is foreseeable, the question of negligence is one of fact for the trier of fact to decide. Markowitz at 357, 706 P.2d at 369.

We do not believe that it can be said in this case that all reasonable people would agree that the danger was unforeseeable. There is sufficient evidence, if believed by the trier of fact, to support a finding that defendants' employee was negligent in failing to take steps to protect or warn patrons of the tavern. Under these circumstances, the appellate court must view the evidence in the light most favorable to the prevailing party and give that party all reasonable inferences arising from that favorable view of the evidence. McFarlin, 127 Ariz. at 224, 619 P.2d at 733. We conclude that there was sufficient evidence upon which reasonable persons could differ. Therefore, the negligence issue was properly submitted to the jury.

As stated in McFarlin, "[t]he foreseeability of the extent of the actual injury or the manner in which it is inflicted is immaterial." Id. at 222, 619 P.2d at 731. The threat to come back with friends and inflict damage was sufficiently specific to put reasonable persons on notice that all patrons in the tavern might be in danger. The bartender testified that, although she had heard threats in bars many times before and had never seen any of them carried out, she did take this threat seriously. Plaintiff was within the class of persons foreseeably at risk.

Defendants contend that the subsequent criminal acts of the assailants were a superseding intervening cause relieving them of liability. A comparable argument was expressly raised and rejected in McFarlin. The court, quoting the Restatement (Second) of Torts § 281, comment h (1965), stated:

The problem which is involved in determining whether a particular intervening force is or is not a superseding cause of the harm is in reality a problem of determining whether the intervention of the force was within the scope of the reasons imposing the duty upon the actor to refrain from negligent conduct. If the duty is designed, in part at least, to protect the other from the hazard of being harmed by the intervening force, or by the effect of the intervening force operating on the condition created by the negligent conduct, then that hazard is within the duty, and the intervening force is not a superseding cause.

Id. at 226, 619 P.2d at 735.

The duty of the bartender here was to exercise reasonable...