Johnston v. Fontana

• Decision Date: 23 December 1992
• Docket Number: No. 24,043-CA,24,043-CA
• Parties: Bertie JOHNSTON, Plaintiff-Appellant, v. Salvador FONTANA, dba Salvador's Coney Island Restaurant, Scott Martinez, Larry Coleman and Curtis Jones, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 1119

610 So.2d 1119

Bertie JOHNSTON, Plaintiff-Appellant, v. Salvador FONTANA, dba Salvador's Coney Island Restaurant, Scott Martinez, Larry Coleman and Curtis Jones,

Defendant-Appellee.

No. 24,043-CA.

Court of Appeal of Louisiana,

Second Circuit.

Dec. 23, 1992.

Patrick H. Wright, Jr., Monroe, for plaintiff-appellant.

Barnes, Jefferson, Edwards & Focke by Stephen A. Jefferson, Monroe, for defendant-appellee.

Before MARVIN, SEXTON, NORRIS, HIGHTOWER and STEWART, JJ.

NORRIS, Judge.

Plaintiff, Bertie Johnston, sued Salvador Fontana, d/b/a Salvador's Coney Island Restaurant, his employee, Scott Martinez, and Larry Coleman and Curtis Jones, for damages she sustained incident to an altercation between Coleman and Jones. The trial court rendered judgment of $33,966.07 against Coleman and Jones but absolved Fontana and Martinez from liability. Johnston appeals that judgment, asserting as error the trial court's finding that Fontana and Martinez were free from negligence. For the reasons expressed, we reverse in part and render judgment.

FACTS

On May 26, 1990, at some time between 11:00 a.m. and noon, Bertie Johnston, a 61-year-old woman, went to Salvador's Coney Island Restaurant ("Coney Island") located on DeSiard Street in Monroe. The Coney Island is an unincorporated business establishment solely owned by Salvador Fontana. It is operated by Fontana and his employees, Bertie Lowe and Scott Martinez, the latter of whom works in exchange for food and beer. It features a bar with bar stools, a juke box, and a pool table. While the restaurant serves hot dogs and hamburgers, approximately one-half of its patrons come in exclusively for beer.

Ms. Johnston positioned herself at the bar on a stool located to the immediate right of a friend, May Croft. At some time between 1:00 and 2:00 p.m., Curtis Jones and Larry Coleman arrived at the restaurant. Jones and Coleman were regulars at Coney Island, patronizing the restaurant on a weekly basis for eight and ten years, respectively. From the moment he arrived, Coleman appeared to be on drugs.

Bertie Lowe observed that Coleman was high on drugs when he entered the restaurant. R.p. 92. She testified that during the three years she had been working at Coney Island, about one-third of the time Coleman came in, he was high on marijuana. R.p. 103. She further noted that she could differentiate when he was high on drugs from when he was drunk because when he was high, he talked loud and got "out of order," but when he was drunk, he was calm and collected. On this day, he appeared high. R.p. 93. Scott Martinez, who was resting in the restaurant's back room during much of the time relevant here, thought Coleman looked like he had been drinking. R.p. 138. Salvador Fontana testified that Coleman "looked spaced out in the eyes" when he arrived at the restaurant. Fontana further stated that he can tell when people are drunk, but Coleman looked "spaced to me." R.p. 130-31.

At approximately 2:30 p.m., Fontana left Coney Island to go to the supermarket and buy cheese for the restaurant. In his absence, he left full authority over the premises with Ms. Lowe and Scott Martinez. He had previously informed both employees that when customers got rowdy, they should warn them to quiet down; if that did not work, they should call the police. R.p. 168. Shortly after Fontana left the restaurant, Coleman began to harrass Jones, cursing him and threatening to "whip his ass." R.p. 93-94, 119. Although Jones attempted to ignore him, Coleman continued threatening to "whip ass."

After this went on for some time, Ms. Lowe and Martinez became sufficiently concerned to warn the two men to "knock off" the argument. Ms. Lowe testified that she warned them on three to five separate occasions, but that each time Coleman would start up again after only a brief respite. R.p. 113. Martinez testified that he issued two additional warnings to Coleman and Jones to cool down. Indeed, upon making the second warning, Martinez actually threatened to call the police. R.p. 141.

Unresponsive to the multiple warnings, Coleman made his way to the bar and sat on the stool just left of May Croft, but continued to threaten Jones. Finally, after thirty minutes of persistent provocation, Jones walked up to Coleman, grabbed him by the shoulder, and shoved him. Coleman, still sitting, fell onto May Croft who fell onto the plaintiff, Bertie Johnston. Ms. Johnston landed on the floor with a broken right ankle pinned under the weight of Coleman, Croft, and her own body.

At this point, some 10 to 15 minutes after he had originally threatened to do so, Martinez called the police. The record does not indicate how quickly the police arrived, but they were already on the scene when Fontana returned to the restaurant, ten to fifteen minutes after the altercation. Coleman was still at the restaurant when the police arrived, but Jones had already left.

Fontana drove Ms. Johnston to E.A. Conway Memorial Hospital where she spent the next eight days following surgery for the insertion of a pin into her ankle.

The court entered preliminary defaults against Jones and Coleman. Following trial, the court rendered final judgment in plaintiff's favor against Coleman and Jones. With regard to Fontana and Martinez, however, the court found no negligence, reasoning that the altercation between Jones and Coleman was "unexpected by those present." R.p. 70. On appeal, Johnston assigns as error the trial court's finding that Fontana and Martinez were free from negligence. In their answer to the appeal, Fontana and Martinez assert that the appeal is frivolous and seek damages in accordance with La.C.C.P. art. 2133.

DISCUSSION

A business establishment owes a duty to its patrons to exercise reasonable care to protect them from injury. This duty does not extend to unforeseeable or unanticipated criminal acts by independent third persons. Only when the owner, management or employees of a business have or should have knowledge of a third person's intended injurious conduct that is about to occur and which is within the power of the owner, management or employees to protect against, does the duty arise. Rodriguez v. New Orleans Public Service, Inc., 400 So.2d 884 (La.1981); Thompson v. Hodge, 577 So.2d 1172 (La.App. 2d Cir.1991); Hardin v. Munchies Food Store, 510 So.2d 33 (La.App. 2d Cir.1987); Ballew v. Southland Corp., 482 So.2d 890 (La.App. 2d Cir.1986). When the independent, intentional, tortious or criminal acts of third persons constitute the unreasonable risk, the duty can be discharged by summoning the police at the time the proprietor knows or should reasonably anticipate that the third person poses a probable danger. Rodriguez v. New Orleans Public Service, Inc., supra; Thompson v. Hodge, supra; Hardin v. Munchies Food Store, supra, and citations therein. In Borne v. Bourg, 327 So.2d 607 (La.App. 4th Cir.1976), a restaurant was held liable for the failure of its employee to call the police when the employee knew a potentially dangerous situation was developing between two customers, one of whom was obviously drunk and was behaving erratically.

It is clear that the proprietor and employees of Salvador's Coney Island Restaurant had a duty to act when they knew or should have known that the hostility between Coleman and Jones posed a potential danger to Coney Island patrons. This duty certainly extended to Ms. Johnston who, in addition to being a patron, was seated only one bar stool away from Coleman as he repeatedly threatened Jones. The risk that plaintiff might be injured in a physical confrontation between Coleman and Jones falls squarely within the scope of the duty owed by the Coney Island to its patrons.

Our next inquiry is whether the Coney Island breached its duty. Both Salvador Fontana and Bertie Lowe admitted at trial that they were aware that Coleman was high on drugs when he entered the Coney Island. Fontana expressly testified that Coleman was "spaced out." Nevertheless, Coleman was permitted to remain, and Fontana even left the restaurant while Coleman was still on the premises. Just minutes after Fontana departed, Coleman began to issue threats to Jones.

The argument between Coleman and Jones continued for thirty minutes during which Coleman repeatedly threatened to "whip Jones's ass." Coney Island employees, Lowe and Martinez, warned the two men to settle down on at least five, possibly seven, separate occasions. Although both employees had been instructed by Fontana to call the police if a customer refused to heed a warning, neither of them attempted to do so until after Ms. Johnston had already been injured. At no time during the argument did they even ask Coleman and Jones to leave the restaurant.

While Martinez sufficiently recognized the seriousness of the situation to threaten Coleman and Jones with calling the police, he chose not to place the call, and instead permitted their hostilities to escalate for another 10 to 15 minutes at which time the physical confrontation took place. Although the police response time is not specified in the record, the police did arrive at Coney Island before Fontana returned from the market, 10 to 15 minutes after the fracas. Thus, had Martinez notified the police when he initially threatened to do so, or even asked Coleman to leave, the physical confrontation and plaintiff's resultant injuries could have been entirely avoided.

Defendants argue that the altercation between Coleman and Jones was unforeseeable given that the two men had never caused trouble in the restaurant before. Ms. Lowe and Fontana testified that the two men had engaged in loud talk before but had always complied with requests to quiet down. R.p. 100-01, 109, 112, 168. Perhaps if Coleman and Jones had behaved on this occasion as they had on others, defendants' argument might carry some weight. Here, however, Coleman made repeated threats of physical violence over a thirty minute period of time and...