Isaacs v. Smith

• Decision Date: 17 June 1999
• Docket Number: No. 97-SC-0461-DG.,97-SC-0461-DG.
• Citation: 5 S.W.3d 500
• Parties: William ISAACS, Nite Life, Inc., d/b/a Camelot East, and Robert Lee Shields, Individually, Appellants, v. Michael K. SMITH, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 500

5 S.W.3d 500

William ISAACS, Nite Life, Inc., d/b/a Camelot East, and Robert Lee Shields, Individually, Appellants, v. Michael K. SMITH, Appellee.

No. 97-SC-0461-DG.

Supreme Court of Kentucky.

June 17, 1999.

As Modified on Denial of Rehearing December 16, 1999.

Leslie Patterson Vose, Landrum & Shouse, Lexington, for Appellants.

David A. Weinberg, Thomas D. Bullock, Weinberg & Capello, Lexington, for Appellee.

Opinion of the Court by Special Justice REFORD H. COLEMAN.

On March 31, 1986, both Appellee Michael K. Smith and Appellant William Isaacs patronized the "Camelot East," a Lexington bar and nightclub. Smith, along with his friend Johnny Wilhoit, sat at a table approximately five to ten feet behind a table occupied by Isaacs and his friend, Terry Shelton.

During the course of the evening, Wilhoit's elbow struck a plastic ashtray, sending it across the room toward Isaacs' table. The ashtray struck a dancer, Nancy Goins, who was then also seated at the table. That incident resulted in a brief shouting match between Wilhoit and Isaacs, prompting club security to intervene in the argument. However, neither man was asked to leave the club or to quit drinking.

No other events of consequence occurred until approximately 30 minutes later, at which time Isaacs and Shelton approached Smith's table. Wilhoit had gone to the bathroom, and Smith was alone. As Shelton engaged Smith in conversation, Isaacs positioned himself behind Smith's chair, drew a concealed handgun, and shot Smith in the back. Isaacs then fled the bar and was subsequently caught and arrested.

Later in 1986, Smith filed this action in Fayette Circuit Court against William Isaacs, Nite Life, Inc., d/b/a Camelot East (hereinafter "Nite Life"), and Robert Lee Shields (hereinafter "Shields"), individually. Smith claimed that Camelot East's service of alcoholic beverages to an already intoxicated Isaacs created a foreseeable risk that Isaacs could cause an injury to an unknown party. The trial court dismissed the claims of both individual liability and shareholder liability against Shields. This

Court subsequently reversed that ruling in Smith v. Isaacs, Ky., 777 S.W.2d 912 (1989), and remanded the case to the Fayette Circuit Court for further proceedings.

Upon remand, the case sub judice lingered and languished to the point that the trial court in 1991, 1993, and 1994, sua sponte, initiated notices to show cause why the case should not be dismissed for lack of prosecution. The case was, in fact, dismissed at one point, but was later reinstated. Thereafter, in 1995, all parties submitted the case to the trial court on cross-motions for summary judgment.

The trial court's Opinion and Order found that, as a matter of law, reasonable minds could not disagree that Nite Life, even though serving alcohol to an allegedly already intoxicated Isaacs, could not foresee that Isaacs would draw a concealed (then "illegal") handgun and shoot Smith in the back. Accordingly, the trial court granted Nite Life and Shields' motion for summary judgment, and dismissed Smith's claims against both. The Court of Appeals reversed, citing KRS 244.080¹ and holding it "broad enough to encompass other types of injuries resulting from a violation of the statute."

At this juncture, Smith contends that the trial court erred in finding that reasonable minds could not differ on the issue presented and that the trial court should have permitted the question of proximate cause (now substantial factor or causative fault) to be answered by the jury as a question of fact. Futhermore, Smith claims that the violation of KRS 244.080, illegally serving alcohol to a person already intoxicated, is equally applicable to a shooting on the retail licensee's premises by an intoxicated person as to an automobile accident caused by an intoxicated person after leaving the premises of the serving establishment.

Nite Life and Shields maintain that while the violation of KRS 244.080 is certainly applicable to the occurrence of an automobile accident caused by an intoxicated patron, the applicability of the statute cannot be stretched to establish a basis for liability of the retail licensee for a shooting perpetrated on premises by an intoxicated customer with an illegally concealed handgun.

The issue here is simply whether or not it was foreseeable that Issacs, given his intoxicated condition, could cause injury to a third party as a result of Nite Life's act of continuing to sell him liquor, such as would render the establishment liable to the victim under KRS 244.080. We hold that it does not.

As early as 1911, in Waller's Adm'r. v. Collinsworth, Ky., 144 Ky. 3, 137 S.W. 766 (1911), this Court recognized that an injury by shooting was not a natural or probable consequence of the sale of liquor. Furthermore, in its opinion reversing the trial court, the Court of Appeals recognized that the obvious motivation for the passage of KRS 244.080 was the prevention of injuries resulting from operating a motor vehicle while under the influence of alcohol. In support of this proposition, the Court of Appeals cites Grayson Fraternal Order of Eagles v. Claywell, Ky., 736 S.W.2d 328 (1987) stating:

"The question of proximate cause is a factual one, not a legal one, depending upon whether the evidence shows that the results of misconduct are reasonably foreseeable."

Id. at 334. We do not disagree with the statement from Grayson cited by the Court of Appeals, but disagree that the results of the misconduct in this case were reasonably foreseeable by the establishment.

We agree with the view of the trial court in stating:

"Despite the increasing violence of our society, the parallel between the foreseeability of impaired driving and the foreseeability of shooting another person is untenable."

"[E]very person owes a duty to every other person to exercise ordinary care in his activities to prevent foreseeable injury." Grayson at 332. Even so, such a duty applies only if the injury is foreseeable. While it is unquestioned that violations of statutes constitute negligence per se, that statement is coextensive with the requirement that the violation "must be a substantial factor in causing the result." Britton v. Wooten, Ky., 817 S.W.2d 443, 447 (1991). However, the mere violation of a statute does not necessarily create liability unless the statute was specifically intended to prevent the type of occurrence which has taken place. Not all statutory violations result in liability for that violation. The violation must be a substantial factor in causing the injury and the violation must be one intended to prevent the specific type of occurrence before liability can attach.

Our holding in this case is not to be construed as requiring a litigant to prove that the exact manner in which the injury occurred was foreseeable.

We think it is clear that so far as foreseeability enters into the question of liability for negligence, it is not required that the particular, precise form of injury be foreseeable — it is sufficient if the probability of injury of some kind to persons within the natural range of effect of the alleged negligent act could be foreseen.

Miller v. Mills, Ky., 257 S.W.2d 520, 522 (1953) (citing...