Eastep v. Jack-in-the-Box, Inc.

• Decision Date: 12 January 1977
• Docket Number: No. 1423,JACK-IN-THE-BO,INC,1423
• Citation: 546 S.W.2d 116
• Parties: Paula EASTEP et vir., Appellants, v., Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 116

546 S.W.2d 116

Paula EASTEP et vir., Appellants, v.JACK-IN-THE-BOX, INC., Appellee.

No. 1423.

Court of Civil Appeals of Texas Houston (14th Dist.).

Jan. 12, 1977.

Rehearing Denied Feb. 2, 1977.

John W. Turner, Robert A. Berry, Miller, Gann & Perdue, Houston, for appellants.

Thomas G. Bousquet, Bousquet & McPherson, Houston, for appellee.

CURTISS BROWN, Chief Justice.

Paula Eastep and her husband, Danny Eastep(the Easteps or appellants), filed suit against Jack-in-the Box, Inc.(appellee) and others to recover damages for injuries received by Paula while at a restaurant owned and operated by Jack-in-the-Box.All defendants other than Jack-in-the-Box were discharged prior to the submission of the case to the jury.The jury answered all liability issues favorably to appellants and found damages.The trial court granted the defendant's motion to disregard Special Issue2(1)(a), (b), and Issue2(2)(a), (b) and (c), and their motion for judgment non obstante veredicto.Judgment was entered that the plaintiffs take nothing.

On the night of August 24, 1973, Paula and Danny Eastep, along with Danny's brothers Lloyd and Kenneth, and Kenneth's wife, Charlene, went dancing at a local night club.When the club closed they went to a Jack-in-the-Box restaurant near their apartment in Pasadena, Texas, arriving there around 2:00 A.M.They placed their orders and sat down.Shortly thereafter, four men (the McDonalds) entered the restaurant, placed their orders, and also sat down.When the Eastep party's food was ready, Danny went to the counter to obtain it.As he passed by the McDonald party's table, they cursed him loudly.Further cursing and obscenities were exchanged between the two tables, whereupon the McDonalds jumped up and at least two of them drew out knives.After several minutes of taunting by the McDonalds, a fight ensued.The two women in the Eastep party made their way to one of the restaurant's exit doors.However, Paula Eastep, apparently seeing her husband in danger of being stabbed or cut by the largest of the McDonalds, went back into the melee and grabbed the aggressor by the hair, pulling him over a table.Having retained the grasp on his knife, this individual got up and began slashing wildly at Paula.She threw up her hands to protect her face and sustained a severe laceration on her right arm.The fight ended a few minutes after Paula was cut, and the police arrived almost immediately thereafter.

In answer to Special IssueNo. 1, the jury found that Jack-in-the-Box, acting through its employees were negligent in: (1) failing to demand that the McDonalds leave the premises before the fight began; (2) failing to timely notify the police; and (3) failing to warn the Easteps of the McDonalds' acts and condition before the fight began.In answer to Special IssueNo. 2, the jury found each of the above omissions were a proximate cause of Paula Eastep's injuries.The jury further found that Paula's actions were reasonable under the circumstances and did not constitute negligence .The trial court disregarded the jury's answers to Special IssueNo. 2 and entered judgment non obstante veredicto for Jack-in-the-Box.

Appellants' two points of error assert that the trial court erred in granting appellee's motion for judgment n.o.v., and in failing to grant appellants' motion for judgment.A judgment non obstante veredicto is sustainable only if there is no evidence upon which the jury could have made the findings relied on .In reviewing such a judgment, we must consider all testimony in the light most favorable to the party against whom it was rendered, and every reasonable intendment deducible from the evidence is to be indulged in that party's favor.Douglass v. Panama, Inc., 504 S.W.2d 776, 777(Tex.Sup.1974);Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547, 550(1962).

The owner of land is under a duty to exercise reasonable care for the safety of his invitees.Rosas v. Buddies Food Store, 518 S.W.2d 534, 536(Tex.Sup.1975).The weight of authority now recognizes that the duty of a proprietor of a restaurant, inn or similar establishment includes the exercise of reasonable care to protect his patrons from intentional injuries inflicted by third persons.SeeAnnots., 70 A.L.R.2d 628(1960);10 A.L.R.3d 619, § 5(1966);40 Am.Jur.2d Hotels, Motels, and Restaurants§§ 111, 112(1968).See alsoRestatement (Second) of Torts§ 344(1965).Such a duty has been recognized in Texas for owners of public theatres.East Texas Theatres, Inc. v. Rutledge, 453 S.W.2d 466, 469--70(Tex.Sup.1970);Marek v. Southern Enterprises, Inc., 128 Tex. 377, 99 S.W.2d 594(1936, opinion adopted).As patrons, appellants were invitees of appellee; therefore, appellee owed appellants a duty of reasonable care to protect them from the assaults of third persons while on the premises.

Section 344 of the Restatement (Second) of Torts (1965) states that a possessor of land held open to the public for business purposes is liable for patrons' injuries that are caused by the intentional acts of third persons And by 'the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.'The portion of the rule requiring notice to the possessor that acts of violence are likely to be done

does not require a long and continued course of conduct to find that the proprietor had knowledge of the violent disposition of the other patron--all that is necessary is that there be a sequence of conduct sufficiently long to enable the proprietor to act for the patron's safety.It is not necessary that the proprietor know of a history of a series of offfenses against the peace.

Coca v. Arceo, 71 N.M. 186, 376 P.2d 970, 973(1962).Accord, Kimple v. Foster, 205 Kan. 415, 469 P.2d 281, 286(1970).

In the instant case the evidence showed that at the time of the incident there were four or five Jack-in-the-Box employees on duty and eight to twelve patrons present in addition to the McDonalds.Paula Eastep testified that she first noticed the McDonalds because they were talking loudly and banging on the counter where orders are taken.She said that they were acting 'weird.'The Easteps' order was called 'two or three minutes' later, after the McDonalds had sat down.It took Danny about a minute to get the food.Paula stated that after Danny came back with their order the McDonalds began shouting obscenities and making obscene gestures at them.After one of the Easteps returned an obscenity, the McDonalds jumped up and drew out their knives.She testified that after the McDonalds got up there was about a two-minute period before any blows were struck, during which time the Easteps were trying to stall off a fight while the McDonalds were hurling epithets, obscenities, and taunts at them .The fight then began, and it was, in her estimation, another two-and-a-half to five minutes before she was cut.She stated that the police arrived four-and-a-half or five minutes after she was cut .Kenneth and Lloyd Eastep also testified that they first noticed the McDonalds when they were 'loudmouthing' at the front counter.

Steve Gregg, a patron in the Jack-in-the-Box when the fight started, testified that the McDonalds

were kind of tough acting, you know, like there was a couple of big guys, a couple of medium size guys.They were, looked like they were hopped up on something, a little high or something like that.They come in, sat down and acted kind of tough and slouchy.They were kind of cussing among themselves.I could hear the cussing.

He stated that from the time that the McDonalds entered the restaurant until they sat down was about four minutes.From the time they sat down until they got up and took out their knives was another two or three minutes.

Randall Kimmel, Gregg's roommate, was also in the Jack-in-the-Box when the fight started.He testified that the McDonalds were talking loud and 'looking for trouble, it looked like.'He stated that 'I was eating at the time they were up at the counter and I heard them talking to the manager.There was profanity.'

The person in charge of the restaurant at the time of the incident was Ismael Cavazos, the assistant manager.He testified that when the McDonalds entered the restaurant, he was away from the counter preparing another order.He asked them to 'hold on a second,' to which the largest of the McDonalds replied, 'Hold on, sh**.'Cavazos stated that this comment was loud enough to have been heard by...