Del Lago Partners, Inc. v. Smith

Decision Date02 April 2010
Docket NumberNo. 06-1022.,06-1022.
Citation307 SW 3d 762
PartiesDEL LAGO PARTNERS, INC. and Del Lago Partners, L.P., Doing Business Under the Assumed Name of Del Lago Golf Resort & Conference Center, and BMC-The Benchmark Management Company, Petitioners, v. Bradley SMITH, Respondent.
CourtTexas Supreme Court

Audrey Mullert Vicknair, Law Office of Audrey Mullert Vicknair, Corpus Christi, TX, Lansford O. Ireson Jr., Ireson & Weizel, P.C., Mary Alice Parsons, Fulkerson, Feder & Wollam, L.L.P., Houston, TX, for Petitioners.

David Dies, Sandee Lee Hart, Steven Lowery Parkhurst, Dies & Hart, LLP, Orange, TX, for Respondent.

W. Wendell Hall, Fulbright & Jaworski L.L.P., San Antonio, TX, for Amicus Curiae Trammell Crow Central Texas, Ltd.

Leslie Patterson Moore, Irving, TX, for Amicus Curiae Mothers Against Drunk Driving.

Kathleen Cassidy Goodman, Law Office of Kathleen C. Goodman, PLLC, San Antonio, TX, for Amicus Curiae Pacific Legal Foundation.

Reagan W. Simpson, King & Spalding LLP, Austin, TX, for Amicus Curiae H.E.B. Grocery Company.

Justice WILLETT delivered the opinion of the Court, in which Chief Justice JEFFERSON, Justice O'NEILL, Justice MEDINA, Justice GREEN, and Justice GUZMAN joined.

This appeal concerns a bar owner's liability for injuries caused when one patron assaulted another during a closing-time melee involving twenty to forty "very intoxicated" customers. The brawl erupted after ninety minutes of recurrent threats, cursing, and shoving by two rival groups of patrons. The jury heard nine days of conflicting evidence from twenty-one witnesses and found the owner fifty-one percent liable. The court of appeals affirmed the roughly $1.48 million award: "A reasonable person who knew or should have known of the one-and-a-half hours of ongoing `heated' verbal altercations and shoving matches between intoxicated bar patrons would reasonably foresee the potential for assaultive conduct to occur and take action to make the condition of the premises reasonably safe."1 We agree with the court of appeals and affirm its judgment.

I. Background2

Bradley Smith was injured when a fight broke out among customers at the Grandstand Bar, part of the Del Lago resort on the shores of Lake Conroe.3 The 300-acre resort consists of a conference center, hotel, golf course, marina, health spa and fitness center, and other facilities. The Grandstand Bar is located in the conference center.

Del Lago has a security force that includes two off-duty law enforcement officers —John Chancellor, the chief of the Shenandoah, Texas police department, and Lanny Moriarty, a lieutenant in the Montgomery County sheriff's department. Ruben Sanchez, a retired fireman and paramedic, was Del Lago's loss-prevention officer. At times up to six security personnel patrolled the resort. On the evening in issue, Chancellor and Moriarty were patrolling the resort in a golf cart. Sanchez was also on duty.

Smith attended a Sigma Chi fraternity reunion at Del Lago from Friday to Sunday, June 8-10, 2001. On Friday evening he stayed at the bar until it closed. Smith and fellow fraternity member Spencer Forsythe testified that a uniformed officer was on duty in the bar for several hours that evening. The officer removed an unruly and intoxicated fraternity member and made everyone leave the bar at midnight, an hour before the usual closing time.

On Saturday, fraternity members and guests attended a reception and dinner at the conference center. Del Lago provided a cash bar. Around 9:00 p.m., Smith and other fraternity members proceeded to the Grandstand Bar, which was very busy. As many as seven employees were working in the bar that evening. Later that evening, a group of ten to fifteen mostly male members of a wedding party entered the bar. Fraternity member Toby Morgan testified that soon after the wedding party arrived, there was tension in the air, tension that grew as the night went on. Forsythe testified that within ten to fifteen minutes of the wedding party's arrival, verbal confrontations between the wedding party and some of the forty remaining fraternity members began. These heated confrontations involved cursing, name-calling, and hand gestures.

Fraternity member Cesar Lopez testified that the animosity between the two groups arose when one of the fraternity members made an offensive comment to the date of one of the wedding-party members. The comment led to men squaring up to each other, with "veins popping out of people's foreheads." Del Lago waitress Elizabeth Sweet observed the exchanges, describing them as "talking ugly" and consisting of cursing, threats, and heated words. Sweet testified that the participants appeared drunk and that these confrontations recurred throughout a ninety-minute period. Morgan observed that the bar patrons were "very intoxicated" that night.

The verbal confrontations led to physical altercations. Forsythe testified that the first pushing and shoving match started after about ten minutes of yelling. Smith testified that he saw at least two physical incidents over the course of the evening. He saw a member of the wedding party square up chest to chest with a fraternity member, both pointing at each other and yelling and neither backing down. After three to five "very tense" minutes, the episode ended. Smith also saw a wedding-party member walk up to a group of fraternity members and push them from behind. The man cocked his arm back, but before anything further could happen other wedding-party members dragged him away.

Between 1:00 and 1:30 a.m., Forsythe saw some fraternity members and wedding-party members in each others' faces, and "things started getting really heated." The rest of the fraternity members walked over and saw that the confrontation was "getting to the serious point." Fifteen to twenty minutes before the final fight broke out, Smith heard yelling between the two groups.

Witnesses described more than one "pushing" match that evening. At least three witnesses described a particularly heated and intense shoving match that took place a few minutes before the ultimate fracas. The shoving match was followed by shouting and cursing.

Tensions finally came to a head when the bar staff attempted to close the bar. After the crowd refused to leave, the staff went table to table and formed a loose line to funnel the customers toward a single exit and into the conference center lobby. Smith testified that the staff was literally pushing the hostile parties out of the bar through the exit, prompting a free-for-all. He recalled that "it was just a madhouse," with punches, bottles, glasses, and chairs being thrown, and bodies "just surging." In Forsythe's words, "all heck broke loose" with pushing, shoving, kicking, and punching. He recalled that after the patrons had been "corralled" by the bar staff they were forced out of the bar:

I only remember one of the wait staff, and it was a female, and she was very close to the door, and she was very obnoxious, very belligerent, and saying, "Y'all get the `F' out. All of y'all, get the `F' out of here. Take the F-ing fight out of here. Get out." And she just pushed—matter of fact, one of our guys fell down, and she was pushing him while he was on the ground. "Just get the `F' out. Get the `F' out."

No one could give an exact number of fight participants, but estimates ranged from twenty to forty men, about equally divided between the wedding party and the fraternity.

Smith was standing against a wall observing the fight when he saw his friend Forsythe shoved to the floor. Smith knew Forsythe had a heart condition and waded into the scrum to remove him. By this time, the fight had moved into the lobby. Before Smith could extricate himself, an unknown person grabbed him and placed him in a headlock. Momentum carried Smith and his attacker into a wall, where Smith's face hit a stud. Smith suffered severe injuries including a skull fracture and brain damage.

Estimates of the fight's duration varied, but most testimony placed it between three and fifteen minutes. Waitress Sweet testified that "it wasn't a quick fight." The fight ended when a woman became caught up in it and was pushed to the ground.

After the fight began, Sweet went to the phone in the bar to call security. Next to the phone was a list of numbers, but none was for security. Sweet called the front desk to get the number. Instead of calling security, the front desk gave the number to Sweet. Instead of immediately calling the number given, Sweet passed it over to a bartender for him to make the call. Once the call was made, the two security guards on duty, Officers Chancellor and Moriarty, responded swiftly, arriving within two to three minutes. Del Lago's loss-prevention officer, Sanchez, also responded and arrived within fifteen to twenty seconds of receiving the call. By the time he arrived, the fight was over.

Smith brought a premises-liability claim against Del Lago. After a nine-day trial involving twenty-one witnesses, the jury sifted through the conflicting evidence and found Del Lago and Smith both negligent, allocating fault at 51-49 percent in favor of Smith. The trial court reduced the jury's actual-damages award by forty-nine percent, and awarded Smith $1,478,283, together with interest and costs. A divided court of appeals affirmed.4

II. Discussion
A. Duty

Del Lago principally argues that it had no duty to protect Smith from being assaulted by another bar customer. In a premises-liability case, the plaintiff must establish a duty`owed to the plaintiff, breach of the duty, and damages proximately caused by the breach.5 Whether a duty exists is a question of law for the court and turns "on a legal analysis balancing a number of factors, including the risk, foreseeability, and likelihood of injury, and the consequences of placing the burden on the defendant."6 In premises-liability cases, the scope of the duty turns on the plaintiff's status.7 Here,...

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