Duda v. Phatty McGees, Inc.

• Decision Date: 03 December 2008
• Docket Number: No. 24604.,24604.
• Citation: 2008 SD 115,758 N.W.2d 754
• Parties: Tim DUDA, Plaintiff and Appellant, v. PHATTY McGEES, INC., d/b/a Hooky Jacks, Defendant and Appellee, v. Willie Guerrero, Third-Party Defendant.
• Court: South Dakota Supreme Court

758 N.W.2d 754

2008 SD 115

Tim DUDA, Plaintiff and Appellant, v. PHATTY McGEES, INC., d/b/a Hooky Jacks, Defendant and Appellee, v. Willie Guerrero, Third-Party Defendant.

No. 24604.

Supreme Court of South Dakota.

Argued May 21, 2008.

Decided December 03, 2008.

George J. Nelson of Abourezk & Zephier, P.C., Rapid City, South Dakota, Attorneys for plaintiff and appellant.

John K. Nooney Kirsten M. Taggart of Nooney Solay & Van Norman, LLP, Rapid

City, South Dakota, Attorneys for defendant and appellee.

KONENKAMP, Justice.

[¶ 1.] During a fist fight in a nightclub, when a beer bottle was broken over his friend's head, plaintiff stepped in front of his friend to protect him from further injury. Plaintiff was then stabbed in the neck with the broken beer bottle. In his lawsuit against the nightclub, plaintiff alleged, among other things, that the nightclub was negligent for failing to provide adequate and competent security. The jury returned a special verdict finding that plaintiff assumed the risk of injury. After the trial, the judge announced that during deliberations, the jury sent him four written questions. Without giving notice to the parties or an opportunity to be heard, the judge answered all four questions. On appeal, we affirm because whether plaintiff assumed the risk of injury was properly submitted to the jury, and plaintiff has failed to show prejudice despite the court's error in answering the jury questions without notice.

I.

[¶ 2.] On Friday, March 9, 2001, around 9:00 p.m., Timothy Duda arrived with his friends at Phatty McGees, Inc., a restaurant and nightclub in downtown Rapid City, South Dakota. They went upstairs where a DJ was playing music in a room with a dance floor and a bar. It was crowded. There were nine security personnel on duty that night, some downstairs and some upstairs.

[¶ 3.] At midnight, Megan Thorpe, a friend of Duda's, went to tell Duda that she and her boyfriend were leaving. Duda was near the bar talking to his friend, Ray Bledsoe. As Thorpe approached Duda, she saw a man, later identified as Dustin Hunter, get into an argument with Bledsoe. According to Thorpe, Bledsoe and Hunter "exchanged fists." Thorpe then saw another man, who turned out to be Hunter's brother-in-law, Willie Guerrero, run past her and break a beer bottle over Bledsoe's head. Frightened, Thorpe turned to leave. As she turned, "there was [sic] bouncers running at me" to break up the fight.

[¶ 4.] Duda too saw Guerrero's attack on Bledsoe. He later recounted to the jury that when the bottle was smashed over Bledsoe's head, "I stepped in with my back to [Bledsoe] and my arms out to ... try to keep him from getting injured more[.]" It was then that Guerrero stabbed Duda in the neck with the broken bottle. At first, Duda was not aware he had been injured. Thorpe noticed his bleeding. She led him downstairs where an ambulance was called. While they waited, she held her hands on Duda's throat, applying pressure "so that he wouldn't bleed to death." At the hospital, Duda underwent surgery to repair damage to his jugular vein, nerves, and neck muscles. He still suffers residual damage from the assault.

[¶ 5.] Duda brought a negligence suit against Phatty's. He alleged that the nightclub failed to have adequate and properly trained security personnel on duty that night, especially near the bar where he was attacked; the bar was noisy and overcrowded; fights and assaults, and other alcohol-related disturbances had occurred in the past; and the nightclub negligently failed to take adequate precautions to protect patrons from these disorders. He would later argue to the jury that the nightclub's midnight promotion, consisting of pouring free shots of whiskey into customers' mouths, contributed to the overcrowding and potential alcohol-related conflicts, particularly around the bar where customers pressed forward to get to the free liquor.

[¶ 6.] Phatty's denied any negligence in its answer and asserted the affirmative defenses of contributory negligence and assumption of the risk. It also brought a third-party complaint against Guerrero for contribution and indemnity. During trial, Duda moved for a directed verdict to dismiss the defenses of contributory negligence and assumption of the risk. When his motion was denied, he timely objected to instructions on those defenses. He also objected to the verdict form lumping together his claim against Phatty's and Phatty's contribution and indemnity claim against Guerrero. These objections were overruled.

[¶ 7.] In arguing the case to the jury, Duda's attorney contended that the milieu in the nightclub—overcrowding, heavy drinking, loud music, dim lights, prior fights, and poor security—contributed to a "fight club" atmosphere, for which his client should not have to suffer. Phatty's attorney argued that it could not anticipate where or when a fight would break out, but that security personnel kept a list of known troublemakers who were excluded and that when the incident in question occurred security personnel responded within an extremely short time. The jury returned a special verdict, finding Phatty's 10% negligent and Guerrero 90% negligent. But the jury also found that Duda assumed the risk of injury, thus barring any recovery against Phatty's. After the verdict was read and the jury was discharged, the judge disclosed to the attorneys that during deliberations he answered four questions from the jury. The record reveals no explanation for why the judge failed to contact the lawyers to give them an opportunity to be heard before he answered the questions. Indeed, the court could have reached them because the attorneys had previously left their phone numbers with the bailiff.

[¶ 8.] Duda moved for a judgment notwithstanding the verdict, or in the alternative, a new trial. He averred error in the court's decision to answer the four questions without notice and an opportunity to be heard. He further contended that the evidence did not support allowing the issues of assumption of the risk and contributory negligence to go to the jury. From an adverse ruling on these matters, Duda appeals asserting that the circuit court: (1) erred when it answered the four questions from the jury without notice; (2) abused its discretion when it denied the motion for a judgment notwithstanding the verdict, or in the alternative, a new trial; and (3) erred when it gave the jury a special verdict form that required allocation of fault between Phatty's and Guerrero.

II. Assumption of the Risk—Intervening in a Barroom Fight

[¶ 9.] Can a person be held to have assumed the risk of being stabbed, when that person shielded a friend engaged in a bar fight involving a broken beer bottle? To answer this question, we must first identify what legal responsibility businesses bear on behalf of their patrons. In South Dakota, business proprietors owe their customers the duty of exercising reasonable care for their safety. Mitchell v. Ankney, 396 N.W.2d 312, 313 (S.D.1986) (citing Restatement (Second) of Torts § 343 (1965)) (other citations omitted). Accordingly, bar owners, though not insurers for the safety of their patrons, must exercise reasonable care to protect them from reasonably foreseeable injury at the hands of other patrons. See generally Joan Teshima, J.D., Tavernkeeper's Liability to Patron for Third Person's Assault, 43 A.L.R.4th 281 (originally published in 1986). When patrons assume the risk of injury, however, bar owners may not be held liable.

[¶ 10.] The crucial issue in this case is whether the jury should have been given the opportunity to decide whether Duda assumed the risk of injury. Duda believes the issue should never have been submitted to the jury.¹ He contends that the court erred when it failed to grant his motion for a directed verdict on whether he assumed the risk of injury.² Because the entire incident occurred within a span of thirty seconds, Duda had no time, he asserts, to appreciate the character of the risk. Moreover, Duda was not a mutual aggressor or co-combatant, and therefore, he argues that as an innocent person injured by the intentional act of another, the assumption of the risk defense is inapplicable.

[¶ 11.] Phatty's responds that the record supports the assumption of the risk instruction and verdict. It believes that if we view the evidence in a light most favorable to the verdict, we will acknowledge that Duda saw Guerrero break the beer bottle over Bledsoe's head before Duda stepped into the middle of the fight. This fact alone, according to Phatty's, leads to a reasonable inference that Duda appreciated the nature of the risk.

[¶ 12.] "`Knowledge of the risk is the watchword of assumption of risk.'" Prosser on Torts § 68 (5thed 1984) (citation omitted). Indeed, assumption of the risk imports a knowing and voluntary self exposure to a known danger. Plaintiffs cannot assume risks of activities or conditions of which they are ignorant. Id. They "must not only know of the facts which create the danger, but [they] must comprehend and appreciate the danger itself." Id. "The standard to be applied is a subjective one, of what the particular plaintiff in fact sees, knows, understands and appreciates. In this it differs from the objective standard which is applied to contributory negligence." Restatement (Second) of Torts § 496D, cmt c (1965).

[¶ 13.] Under our traditional formulation, a person assumes the risk of injury when the person: "(1) had actual or constructive knowledge of the risk; (2) appreciated its character; and (3) voluntarily accepted the risk, with the time, knowledge, and experience to make an intelligent choice." Ray v. Downes, 1998 SD 40, ¶ 11, 576 N.W.2d 896, 898 (quoting Mack v. Kranz Farms, Inc., 1996 SD 63, ¶ 9, 548 N.W.2d 812, 814 (citation omitted)). A person is deemed to have appreciated the risk "`if it is the type of risk that no adult of average intelligence can deny.'" Id. ¶ 15 (quoting Westover v....