Kimple v. Foster

• Decision Date: 09 May 1970
• Docket Number: No. 45678,45678
• Parties: John Stanley KIMPLE, Ernest I. Stahly and Larry A. Morris, Appellees, v. Bill G. FOSTER, d/b/a the Roaring Sixties, Appellant.
• Court: Kansas Supreme Court

Page 281

469 P.2d 281

205 Kan. 415

John Stanley KIMPLE, Ernest I. Stahly and Larry A. Morris, Appellees, v. Bill G. FOSTER, d/b/a the Roaring Sixties, Appellant.

No. 45678.

Supreme Court of Kansas.

May 9, 1970.

Syllabus by the Court

1. One who operates a public tavern, grill or similar establishment has a duty to use reasonable and ordinary care in protecting his patrons from injury.

2. A proprietor of an inn, tavern, restaurant or like business is liable for an assault upon a guest or patron by another guest or third party where the proprietor has reason to anticipate such an assault and fails to exercise reasonable care to forestall or prevent the same.

3. The duty of a proprietor of a tavern or inn to protect his patrons from injury does not arise until the impending danger becomes apparent to him, or the circumstances are such that a careful and prudent person would be put on notice of the potential danger.

4. It is not required that notice to the proprietor of such an establishment be long and continued in order that he be subject to liability; it is enough that there be a sequence of conduct sufficient to enable him to act on behalf of his patron's safety.

5. In the face of impending danger to his guests from fellow patrons or other parties, the proprietor of a tavern or similar place of business is under a duty, either personally or through his manager, to take affirmative action to maintain order on the premises either by demanding that the offending persons leave, or by calling the authorities to enforce such demand, or by other means which may reasonably be available.

6. A customer of such an establishment has a right to rely on the belief that the place of business will be kept orderly and that the proprietor, either personally or through his manager or other delegated employees, will exercise reasonable care for his safety.

7. The record is examined in an action to recover damages for injuries received in the defendant's tavern, and for reasons appearing in the opinion it is held: (1) The evidence is sufficient to sustain the verdicts rendered in favor of the plaintiffs and (2) prejudicial error does not appear either in the admission of evidence or the instructions of the court.

Robert J. O'Connor, of Hershberger, Patterson, Jones & Thompson, Wichita, argued the cause, and H. E. Jones, Wichita, was with him on the brief for appellant.

John C. Frank, Wichita, argued the cause, and Eugene B. Ralston, Wichita, was with him on the brief for appellees.

FONTRON, Justice.

This action was commenced by the three plaintiffs, John Stanley Kimple, Ernest I. Stahly and Larry A. Morris, to recover for personal injuries sustained while guests at The Roaring Sixties, a Wichita nightspot. The case was tried to a jury which awarded damages to each plaintiff in the sum of $6500. The defendant, Bill G. Foster, owner of the offending tavern, has appealed.

For the three victims, the evening of July 7, 1966, began innocently enough. The men met in the afternoon for a business conference, following which they had dinner together. About 9:00 p. m. they dropped into The Roaring Sixties, where they ordered a pitcher of beer. Soon thereafter the tavern exploded with a frenetic violence which more than matched the picturesque character of its name.

The record reflects that when the plaintiffs entered the tavern, a group of males was gathered around a table some distance away. These characters had been patronizing the tavern since afternoon, drinking beer, pyramiding empty beer cans on their table, harassing patrons, brawling and behaving generally in a fashion that may be termed, at best, as obnoxious.

Shortly after they had taken their seats the plaintiffs, none of whom were in anywise boisterous or unruly, were approached by one of the aforesaid male characters who bummed a light for his cigarette. After being accommodated he returned to his peer group across the room. In a matter of minutes several members of the graceless group surrounded the table at which the plaintiffs were seated, all seemingly itching for trouble. One of their number accused the plaintiffs of making uncomplimentary remarks about his girl friend (one of the go-go dancers who also served as waitresses) and invited them outside for a fight. When this gracious invitation was firmly declined, the gang began its vicious attack by kicking the chair out from under Mr. Kimple. The ultimate result of the ensuing affray was that all three plaintiffs were injured amidst an unrelenting rain of blows, kicks and missiles. Further details of the gory assault will be related when and as required.

The basis of the plaintiffs' claims against Mr. Foster, the proprietor of The Roaring Sixties, was his failure to provide them with the protection to which they were entitled as his guests. There is actually little dispute between plaintiffs and defendant with respect to the general proposition that a tavern operator owes his patrons the duty to exercise reasonable care for their personal safety. In this jurisdiction the general rule has been phrased in Huddleston v. Clark, 186 Kan. 209, 349 P.2d 888, in these words:

'While the owner and operator of a public tavern and grill is held to a stricter accountability for injuries to patrons than is the owner of private premises generally, the rule is that he is not an insurer of the patrons, but owes them only what, under the particular circumstances, is ordinary and reasonable care.' (Syl. 2.)

We find this rule to be in substantial accord with the prevailing doctrine which is expressed in 40 Am.Jur.2d, Hotels, Motels, Etc., § 112, p. 987:

'A proprietor of an inn, hotel, restaurant, or similar establishment is liable for an assault upon a guest or patron by another guest, patron, or third person where he has reason to anticipate such assault, and fails to exercise reasonable care under the circumstances to prevent the assault or interfere with its execution. * * *'

To similar effect is Reilly v. 180 Club, Inc., 14 N.J.Super. 420, 82 A.2d 210, wherein the court said:

'It is in the law the duty of a tavern-keeper to exercise reasonable care, vigilance, and prudence to protect his guests from injury from the disorderly acts of other guests. * * *' (p. 424, 82 A.2d at 212.)

For similar expressions of this principle see Parker v. Kirkwood, 134 Kan. 749, 752, 8 P.2d 340; Holcomb v. Meeds, 173 Kan. 321, 246 P.2d 239; Restatement, Torts, § 348 (1934 Ed.); 43 C.J.S. Innkeepers § 22, pp. 1173-1176; Anno., 70 A.L.R.2d, Patron, Injury By Third Person, pp. 628, et seq.

Although, as we have said, the defendant does not seriously question this legal maxim, he calls our attention to its qualification in the following particular: That the proprietor's duty to protect his patrons does not arise under the rule until the impending danger becomes apparent to the tavern keeper, or the circumstances are such that an alert and prudent person would be placed on notice of the probability of danger. (Stevenson v. City of Kansas City, 187 Kan. 705, 360 P.2d 1; Cale v. Johnson, 177 Kan. 576, 280 P.2d 588; Moore v. Yearwood, 24 Ill.App.2d 248, 164 N.E.2d 215.)

Pursuing this theme, the defendant asserts that the record is entirely bereft of evidence which would tend to place him on notice of impending danger. In making this assertion, we believe the defendant is mistaken. As we view this record, there is ample evidence to have alerted both the defendant himself and his go-go girl manager to the probability of violence erupting from the rowdy and unruly gang which had infested the tavern since afternoon.

We shall make no attempt to set out the evidence in detail. It is sufficient to say that 'the guys' around the beer can pyramid, who ranged in number as high as eight or ten, were high and belligerent at 4:30 that afternoon and 'maybe wanted to start a fight'; that about 5:15 or so the male manager (Mr. Foster) was in the tavern and set the boys up for a free beer; about 5:30 or 6:00 a fight broke...