Looks Twice v. Whidby, 19716

• Decision Date: 10 September 1997
• Docket Number: No. 19716,19716
• Citation: 1997 SD 120,569 N.W.2d 459
• Parties: Georgine L. LOOKS TWICE, Plaintiff and Appellant, v. Julian WHIDBY and Evelyn Whidby, D/B/A Stockmans Lounge and Liquors, Defendants and Appellees, and Jean Adele Ghost, Deloris L. Long Soldier and Jacqueline Judith Palmier, Defendants. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 459

569 N.W.2d 459

1997 SD 120

Georgine L. LOOKS TWICE, Plaintiff and Appellant, v. Julian WHIDBY and Evelyn Whidby, D/B/A Stockmans Lounge and Liquors, Defendants and Appellees and Jean Adele Ghost, Deloris L. Long Soldier and Jacqueline Judith Palmier, Defendants.

No. 19716.

Supreme Court of South Dakota.

Considered on Briefs Sept. 10, 1997.

Decided Oct. 15, 1997.

Michael Abourezk of Abourezk Law Firm, Rapid City, for plaintiff and appellant.

Donald P. Knudsen, G. Verne Goodsell of Gunderson, Palmer, Goodsell & Nelson, Rapid City, for defendants and appellees.

SABERS, Justice.

¶1 Three women attacked plaintiff in a bar fight, causing her serious physical injuries. She sued her attackers and the bar owners. The jury found against the attackers, but for the bar owners. Plaintiff appeals the denial of her motions for judgment notwithstanding the verdict and new trial. We reverse and remand.

FACTS

¶2 On March 6, 1993, Georgine Looks Twice was seated with a friend in Rapid City's Stockman's Lounge when she was attacked by three women (Jean Ghost, Deloris Long Soldier, and Jacqueline Palmier). Before the fight was stopped, Looks Twice was thrown to the floor, beaten, and kicked; toward the end of the attack, part or all of her nose was bitten and severed from her face.

¶3 Stockman's adjoins a liquor store, both of which are owned by the Whidbys. On the night of the attack, the bar was staffed by one female bartender (Rosalie Means) and one female server (Carmelita Yellow Thunder). Evelyn Whidby was on duty in the liquor store. Means testified that she knew trouble was brewing for approximately ten minutes before the attack actually began. In fact, she testified to the following conversation with Ghost:

Ghost: If I get in a fight in here, are you going to kick me out?

Means: Well, if you start it, I have to.

Ghost: Well, I guess you're going to kick me out.

There was apparently some delay in summoning the police, ¹ but once called they responded immediately and stopped the fight, although too late to prevent the disfigurement to Looks Twice' face.

¶4 Prior to trial, Whidbys made a motion to prevent Looks Twice from introducing evidence to show the bar had a history of prior incidents of criminal activity requiring police intervention. Looks Twice claimed that Whidbys were negligent in failing to take precautionary measures, such as hiring an on-site security guard or "bouncer." She sought to introduce police records pertaining to Stockman's to show that violence in the bar was foreseeable and that Whidbys should have known they needed security to prevent such an attack.

¶5 The trial court instructed Looks Twice to submit "a list of the incidences and the detail supporting those incidences to establish the similarities ... lay out as much detail as you can." The court indicated that evidence regarding fights in the bar would be admissible, but that evidence of fights outside the bar would likely be excluded.

¶6 The Rapid City Police Department keeps files on each business which has a liquor license; these files contain information pertaining to police calls to each establishment. Looks Twice submitted an offer of proof which consisted of 1) an index to the Rapid City Police Department's Stockman's file; 2) excerpts from the police logs; 3) excerpts from the dispatch logs; and 4) four detailed incidents of violence at Stockman's. The trial court admitted two of these last four incidents, ruling that they could be used as substantive evidence since they occurred inside the bar. The other items were not admitted.

¶7 Following a trial, the jury found in favor of Looks Twice in her suit against Ghost, Long Soldier, and Palmier, but against her in her claim against the Whidbys. Looks Twice made an alternative motion for judgment notwithstanding the verdict or new trial. The trial court granted Looks Twice a new trial against the three women solely on the basis of inadequate damages. This was not appealed.

¶8 The court denied Looks Twice' motion for new trial against the Whidbys. Looks Twice appeals, claiming the court erred in denying use of the material as substantive evidence. She also claims she should have been permitted to use it to impeach Whidbys' expert when he testified that the number of calls to the police did not merit additional security. ²

STANDARD OF REVIEW

¶9 "[A] motion for a new trial is addressed to the sound discretion of the trial court; we will not overturn the court's ruling unless it appears affirmatively from the record there has been an abuse of discretion." Robbins v. Buntrock, 1996 SD 84, p 16, 550 N.W.2d 422, 427 (citations omitted). Evidentiary rulings made by the trial court are presumed correct and are also reviewed under an abuse of discretion standard. State v. Goodroad, 1997 SD 46, p 9, 563 N.W.2d 126, 129 (citing State v. Oster, 495 N.W.2d 305, 309 (S.D.1993)). "The test is not whether we would have made the same ruling, but whether we believe a judicial mind, in view of the law and the circumstances, could have reasonably reached the same conclusion." Id. (citing State v. Rufener, 392 N.W.2d 424, 426 (S.D.1986)).

¶10. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY EXCLUDING EVIDENCE OF PRIOR INCIDENTS OF VIOLENCE AT THE BAR, IN VIEW OF THE "TOTALITY OF THE CIRCUMSTANCES" RULE.

¶11 The trial court excluded evidence of two prior acts of violence which occurred outside the bar, as well as all of the police documents pertaining to Stockman's. The excluded incidents of prior violence were detailed in the offer of proof: ³On August 29, 1992, Officers Edgington and Brode were off duty and had just left the police station. Both were in uniform. As they were driving home, they saw two women fighting just outside the front door of the Stockman's Lounge. They stopped and arrested one of the women for simple assault and disorderly conduct.

On March 27, 1992, a customer of the Stockman's Bar named John Top Bear was in the bar, when another individual, Don Cuny, started an argument. Top Bear got up to leave the bar and Cuny followed him out the back door. The two got into a fight and Cuny shot Top Bear with a pistol. Top Bear ran back into the Stockman's Bar where he collapsed on a table near the pool table.

¶12 The court also excluded the index to the police file. The index dates from May 24, 1986 through August 27, 1991 and lists 1) six fights, including one involving a charge of failure to vacate; 2) four assault entries (including one "possible", one "aggravated", and one "simple"); 3) seven entries indicating responses to the Central Monitoring Alarm; and 4) various other infractions, including "unwanted subjects," failure to vacate, resisting, obstructing, and theft. The police department's daily log and dispatch log were also excluded. The logs contained various entries indicating calls or alarms coming from Stockman's.

¶13 It appears that most, if not all of the evidence submitted in Looks Twice' offer of proof was confined to fights, assaults, and disturbances occurring at or near Stockman's. The trial court excluded nearly all of the evidence, stating:

The Court feels, number one, it's not establishing similarity in events. Two, it's highly prejudicial because they--it lists events that are unrelated to the situation and circumstances involving this particular case and the bar, and the minimal, if any, probative value is well outweighed by the prejudicial value, and I will deny the offer.

¶14 Looks Twice argues that the trial court erred by basing its evidentiary ruling on the "prior similar acts" rule. Under that rule, only evidence of similar incidents is admissible. This court expressly rejected the "prior similar acts" rule in favor of a "totality of the circumstances" rule in Small v. McKennan Hospital, 403 N.W.2d 410, 412-13 (S.D.1987) (Small I ):

[V]arious trial courts may differ as to what is a "similar" incident and may have trouble defining time and territory limits for purposes of determining foreseeability.... [S]trict adherence to the "prior similar acts" rule is unduly restrictive and places too great a burden on the plaintiff.

d.(citations & internal quotations omitted); see also Small v. McKennan Hosp., 437 N.W.2d 194, 199 (S.D.1989) (Small II ) (discussing Small I ):

[F]oreseeability must be analyzed in light of all the circumstances [and] depends on the facts in each individual case. Prior incidents, whether similar or not, were properly held to constitute evidence of foreseeability. Such incidents are helpful in establishing foreseeability, but not required to satisfy this element. In other words, such other incidents are not by themselves controlling in establishing foreseeability, but can be considered with all the other facts and circumstances relating to the issue.

¶15 Whidbys conceded that they owed a duty to protect their customers from "an unreasonable risk of harm at the hands of a third party, another bar patron." However, the factual question whether they breached their duty remained. "[T]he fact finder generally determines whether a duty has been breached." City of Colton v. Schwebach, 1997 SD 4, p 8, 557 N.W.2d 769, 771. Whether there was a history of violence at the bar which 1) made the attack on Looks Twice foreseeable and 2) should have alerted the Whidbys to the necessity of instituting preventative measures was a factual question for the jury. Small I, 403 N.W.2d at 413. Furthermore, the correct rule of law in such a case is the "totality of the circumstances rule."

The duty to foresee a risk of harm is dependent upon all the surrounding facts and circumstances and may require further investigation or inquiry before action is taken.

Id. (citation omitted).

¶16 As noted, most of the excluded evidence related to fights, assaults, and disturbances occurring at or near Stockman's. This was far more "similar" and far more detailed than the evidence held admissible in Small I. In that case, the estate of a woman who...