Hanna v. Cloud 9, Inc., 94-41

• Decision Date: 10 February 1995
• Docket Number: No. 94-41,94-41
• Citation: 889 P.2d 529
• Parties: Paul T. HANNA, Appellant (Plaintiff), v. CLOUD 9, INC., a Wyoming Corporation, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 529

889 P.2d 529

Paul T. HANNA, Appellant (Plaintiff), v. CLOUD 9, INC., a Wyoming Corporation, Appellee (Defendant).

No. 94-41.

Supreme Court of Wyoming.

Feb. 10, 1995.

Douglas G. Madison and Randall B. Reed of Dray, Madison & Thomson, P.C., Cheyenne, for appellant.

Patrick J. Murphy of Williams, Porter, Day & Neville, P.C., Casper, for appellee.

Before GOLDEN, C.J., and THOMAS, MACY, TAYLOR and LEHMAN, JJ.

GOLDEN, Chief Justice.

A patron of Appellee's bar filed a complaint for negligence against the bar to recover for injuries he sustained in a fight with another patron. That injured patron now appeals the trial court's entry of summary judgment against him, following its determination that no genuine issues of material fact exist and, under the undisputed facts, Appellee owed no duty of care to the patron.

We affirm.

ISSUES

Appellant Paul Hanna presents the following issues for our review:

I. Did [bartender] Susan Riggs have reason to believe that [patron] Paul Hanna was in imminent danger and have an opportunity to intervene prior to the second assault and battery in the bar?

II. What duty did Cloud Nine, Inc. owe [patron] Paul Hanna once the second assault and battery commenced?

Appellee Cloud 9, Inc. rephrased the issues as:

I. Did the district court properly grant summary judgment to the bar, and against its intoxicated patron, for injuries that patron sustained in a fight with another bar patron.

II. Did the district court properly conclude that the bar did not owe a duty of protection to appellant under all the circumstances?

III. Even if the bar owed a legal duty of care to appellant, and even if the bar breached that duty of care, was the bar a remote cause, not a proximate cause, of appellant's injuries?

FACTS

The Cloud 9 Bar, located in the Cheyenne airport, is operated independently of but adjoins the Cloud 9 Restaurant. Appellant Paul Hanna was an employee of the Cloud 9 Restaurant. On the evening of Sunday, September 27, 1992, Hanna, who was off duty and had spent the afternoon watching a football game and drinking a six pack of beer, went to the Cloud 9 Bar where he drank two more beers and visited with friends.

Between approximately 8:00 and 8:30 that evening, Hanna left the bar and walked into the restaurant coffee shop to visit with fellow employees. A short time later, Hanna left the coffee shop and entered the kitchen of the restaurant hoping to make plans for the evening with the kitchen employees. Once inside the kitchen, Hanna encountered the manager of the restaurant, Louis Kutsulis (Louis). When Louis saw Hanna, Louis immediately, allegedly without provocation, began yelling vulgarities at him which eventually led to a shoving match between the two.

While Hanna and Louis were yelling at and shoving each other, an employee who had been working in the kitchen went into the Cloud 9 Bar and alerted Louis' son, Phillip Kutsulis (Phillip), that Hanna and Louis were fighting in the kitchen. Phillip entered the kitchen, and after more shouting and shoving between the three, Phillip and Louis forced Hanna out the back door of the kitchen and threw him off the loading dock.

Hanna proceeded toward home, which was within walking distance, and then realized he had left his coat and keys in the bar. Hanna returned to the bar and entered through the back door. From here the accounts of what happened diverge. What is certain is that Hanna met Phillip in the bar and the two fought. During that fight, Phillip kicked Hanna in the arm, breaking it, and also inflicted other less serious injuries upon him.

On December 8, 1992, Hanna filed a complaint in district court: against Phillip Kutsulis and Louis Kutsulis for assault and battery

and intentional infliction of emotional distress; against Louis Kutsulis for negligent employment and retention; and against Appellee Cloud 9, Inc., for negligence (premises liability) and negligent selection of lessee. Hanna obtained a $75,000 judgment against Louis and Phillip Kutsulis, jointly and severally; however, the trial court granted Appellee's summary judgment motion, finding no genuine issues of material fact existed and Appellee, as a matter of law, owed Hanna no duty of care. Hanna has abandoned, on appeal, his claims of liability premised upon negligent selection of lessee, raising only those issues relating to premises liability.

DISCUSSION

1. Standard of Review

This Court will affirm an entry of summary judgment only if no genuine issues of material fact exist and the prevailing party was entitled to judgment as a matter of law. Wyo.R.Civ.P. 56(c). We review a summary judgment in the same light as the district court, examining the record from the vantage point most favorable to the party opposing the motion and affording that party the benefit of all favorable inferences which may fairly be drawn from the record. Mountain Cement Co. v. Johnson, 884 P.2d 30, 32 (Wyo.1994).

2. Premises Liability

This Court most recently addressed the question of tavern keeper liability in White v. HA, Inc., 782 P.2d 1125 (Wyo.1989). In White, we held that a tavern keeper owes a duty to his invitee to exercise reasonable care in protecting the invitee from the physical assault of another invitee if the injured invitee proves:

a disturbance which did attract or should have attracted the tavern keeper's attention;

the lapse of a reasonable amount of time between the attracting disturbance and the subsequent tortious act on the injured invitee by the other invitee, within which time period the tavern keeper had the opportunity to avert the impending danger or subsequent tortious act; and

a relationship between the attracting disturbance and the subsequent tortious act.

White, 782 P.2d at 1129.

We have said the disturbance must be more than a battle of violent words; it must be "action, threat of action, or some type of demonstration." White, 782 P.2d at 1129 (quoting Fisher v. Robbins, 319 P.2d 116, 120 (Wyo.1957)). In Mayflower Restaurant Co. v. Griego, 741 P.2d 1106 (Wyo.1987), for example, we found that a threat to assault the injured patron, accompanied by shirt-grabbing, constituted the requisite attracting disturbance.

Hanna offers three incidents to qualify for the requisite attracting disturbance to give rise to the tavern keeper's duty:

A July 12, 1992, incident involving Phillip and bar patrons, which incident did not involve Hanna, as he was not present, or Louis, as he was not present;

The September 27, 1992, "kitchen incident" which occurred about fifteen minutes before the tortious act in question (Phillip's kick to Hanna's arm) and which involved, at first, Hanna and Louis, and, later, Hanna, Louis, and Phillip; or

The September 27, 1992, "bar incident" which occurred anywhere between moments to several minutes before the tortious act in question, depending upon which "eye witness" version is accepted.

The district court correctly made short-shrift of both the July incident and the "kitchen incident." The July incident fails as a matter of law to qualify as the attracting disturbance because it lacks relationship with the September 27 tortious act. It lacks relationship because: neither Louis nor Hanna were present on July 12, the July 12 incident's subject matter differed from the September 27 incident's subject matter, and the two and one half month interval destroyed the imminence element inherent in the relationship between the attracting disturbance and the subsequent intentional tortious act.

The "kitchen incident" fails to qualify as a matter of law because it did not occur The "kitchen incident" also fails to qualify as a matter of law because the movant, Cloud 9, Inc., showed with its submitted summary judgment material that the bartender, Riggs, did not know about the "kitchen incident." In this regard, Riggs' deposition testimony was:

                in the bar.  The tavern keeper's duty to exercise care extends only to the bar's physical boundaries.  White, 782 P.2d at 1132.   We hold that the attracting disturbance must occur on the tavern keeper's premises
                

Q. What personal knowledge did you have, if any, regarding trouble that Phillip Kutsulis may have been in whether he caused it or was just involved in it in the Cloud 9 Bar?

A. None. Not before that little contra--you know, that little fight that came through the doorway, not before at all that I know of.

Hanna does not point us to any competent evidence in his submitted opposition material to contradict Riggs' testimony that she did not know about the "kitchen incident" when it was occurring. Considering, in a light most favorable to Hanna, the depositions of two witnesses, Wayne Lackey, a restaurant employee, and Gus Anastopoulos, an off-duty bar employee, the most Riggs knew from witnessing Wayne Lackey enter the bar to inform Phillip of Louis and Hanna's fight in the kitchen was just that, i.e., that Wayne Lackey told Phillip there was a fight and that Phillip left the bar. Riggs did not know Phillip accosted Hanna in the kitchen or that they engaged in a word battle there. It is not a reasonable inference from that quantum of information that Riggs knew the "kitchen incident" involved Phillip and Hanna and was of such a nature as to qualify for the attracting disturbance.

That leaves, as our remaining determination, the question whether the "bar incident" qualifies as the attracting disturbance, following which disturbance a reasonable amount of time elapsed in which the tavern keeper had the opportunity to avert the tortious act. Four witnesses, Riggs, Hanna, and Jonathon Howard and Anna Kutsulis, both restaurant employees, related different accounts of the "bar incident." Those four accounts are:

1. Riggs: Riggs reported that Phillip and Hanna were fighting as they entered the bar. In effect, under her version, no attracting disturbance existed. The...