Filas v. Daher, 44474

• Court: Supreme Court of Minnesota (US)
• Citation: 300 Minn. 137,218 N.W.2d 467
• Docket Number: No. 44474,44474
• Parties: Richard FILAS and Jean Filas, His Wife, Appellants, v. Thomas DAHER, Individually and d.b.a. Mr. Day's Liquor Bar, et al., Respondents.
• Decision Date: 17 May 1974

Page 467

218 N.W.2d 467 300 Minn. 137 Richard FILAS and Jean Filas, His Wife, Appellants,
v.
Thomas DAHER, Individually and d.b.a. Mr. Day's Liquor Bar,
et al., Respondents. No. 44474. Supreme Court of Minnesota. May 17, 1974.

Page 468

Syllabus by the Court

1. A tavern keeper is not liable for injuries sustained by a patron during an altercation with another patron where there is no substantive evidence that the proprietor or his employees had sufficient warning of possible inflammatory conduct. Liability for an injury cannot be predicated upon an incident which happened rapidly with no opportunity to prevent the injury.

2. An order granting a motion for judgment notwithstanding the verdict was proper where reasonable minds could reach but one conclusion.

[300 MINN 137] Daniel A. Utter, Minneapolis, for appellants.

Syrus S. Kouri, Minneapolis, for respondents.

Heard before PETERSON, TODD, and SCOTT, JJ., and considered and decided by the court.

SCOTT, Justice.

Plaintiffs, alleging assault and battery, negligent failure by defendants as proprietors of a tavern to maintain order and control on the premises, and violations by defendants of the Civil Damage Act, Minn.St. 340.95, commenced this action to recover for personal injuries sustained by Richard Filas (plaintiff) on April 23, 1971, at Mr. Day's Liquor Bar. The jury, in a special verdict, assessed plaintiff's damages in the sum of $10,000, and further found plaintiff 25-percent negligent and defendants' employees 75-percent negligent. The court ordered entry of judgment for plaintiff in the sum of $7,500 plus costs. Defendants moved for judgment notwithstanding the verdict and their motion was granted by the court. Plaintiffs appeal from the judgment entered. We affirm.

Plaintiff arrived at Mr. Day's Bar at approximately 7:30 p.m. on the evening of the incident and sat at the center of the bar. He was joined by his brother-in-law, George Anderson, and Anderson's friend, James Ketcham. Walter Hudy, his sons Tom and Gerald, and Tom's wife, Judith, had arrived at various times between 6 and 6:30 p.m., and were seated further down the bar near a pool table. The evidence indicates that Walter laughingly threw Gerald's cigarettes behind the bar. Gerald, thinking that some money on the bar belonged to his father, grabbed two dollars belonging to plaintiff. It is at this point that a substantial conflict in the testimony arises.

Plaintiff testified that Tom Hudy then struck him with his fist and that he returned the blow. They then scuffled and plaintiff was pushed against a table by three of the Hudys. Plaintiff stated that Judith Hudy hit him on the head with a beer bottle while he was restrained against the table. As a result of Judith Hudy's striking him with the empty beer bottle, plaintiff claimed to have suffered headaches, dizziness, and nausea. The lower court stated that plaintiff's version that 7 to 8 minutes elapsed from the time Tom Hudy hit plaintiff until Mrs. Hudy hit plaintiff with the bottle was 'inherently improbable.' No other witness[300 MINN 139] testified that this incident lasted more than 1 minute. In fact, George Anderson estimated that it was less than one-half minute before Mrs. Hudy struck plaintiff on the head, and then the bartender immediately moved them outside the bar. He also stated that no one anticipated that Mrs. Hudy would strike anyone.

This court has indicated that the standard used to determine the propriety of

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an order for judgment notwithstanding the verdict is whether there is any competent evidence reasonably tending to sustain the verdict. Sjodin v. Lund, 277 Minn. 473, 152 N.W.2d 718 (1967); Peterson v. Minnesota Power and Light Co., 206 Minn. 268, 288 N.W. 588 (1939). The motion accepts the view of the evidence most favorable to the verdict, and admits all inferences reasonably to be drawn from the evidence as well as the credibility of the testimony for the nonmoving party. See, Cofran v. Swanman, 225 Minn. 40, 29 N.W.2d 448 (1947). Unless this court is able to determine that the evidence is practically conclusive against the verdict or that reasonable minds could reach but one conclusion against the verdict, the order granting the motion for judgment notwithstanding the verdict cannot stand. Campbell v. Siever, 253 Minn. 257, 91 N.W.2d 474 (1958); Nelson v. Holand, 272 Minn. 522, 139 N.W.2d 518 (1965).

It has also been established in Minnesota, as well as in other jurisdictions, that tavern keepers are under a duty to exercise reasonable care in maintaining orderly premises for the protection of their patrons. Windorski v. Doyle, 219 Minn. 402, 18 N.W.2d 142 (1945); Klingbeil v. Truesdell, 256 Minn. 360, 98 N.W.2d 134...