Marshall v. Fair Lanes Maryland Bowling, Inc.

Decision Date07 August 1997
Docket NumberNo. 96-8772,96-8772
Citation118 F.3d 1487
Parties11 Fla. L. Weekly Fed. C 288 Jeremy D. MARSHALL, Plaintiff-Appellant, v. FAIR LANES MARYLAND BOWLING, INC., d.b.a. Fair Lanes Gwinnett, Defendant-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Thomas W. Tobin, Valerie G. Tobin, Atlanta, GA, for Plaintiff-Appellant.

C. Bradford Marsh, John C. Bonnie, Long, Weinberg, Ansley & Wheeler, Atlanta, GA, for Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before BLACK, Circuit Judge, and FAY and ALARCON *, Senior Circuit Judges.

FAY, Senior Circuit Judge:

In this premises liability action, the district court granted defendant-appellee Fair Lanes Maryland Bowling, Inc.'s ("Fair Lanes") motion for summary judgment. In granting the motion, the district court held that under Georgia law Fair Lanes could not be held liable because plaintiff-appellant Jeremy D. Marshall's ("Marshall") injuries were the result of his own actions. Because we believe there are factual questions concerning whether Marshall's injuries were caused by his own conduct, we reverse.

BACKGROUND

This appeal arises out of an altercation that occurred on May 29, 1994, Sunday, Memorial Day weekend, at the Fair Lanes Bowling Center ("Fair Lanes") in Gwinnett County, Georgia. 1 Most of the facts surrounding the altercation are derived from Marshall's deposition testimony; those facts are mainly undisputed. In any event, to the extent any of the facts are in dispute, because we are legally obligated to resolve all ambiguities and draw all justifiable inferences in favor of the nonmoving party, United States v. M/V Jacquelyn L., 100 F.3d 1520, 1522 (11th Cir.1996), we resolve all ambiguities and inferences in Marshall's favor.

At the time of the incident, Marshall worked as a cook/dishwasher for a restaurant called the Jolly Fisherman. On the fateful Sunday, Marshall had worked at the Jolly Fisherman from approximately 4 o'clock in the afternoon to 10 o'clock in the evening. During this time, he had consumed no alcohol. Upon arriving home from work at approximately 10:10, Marshall spoke to his friend Ron Ward ("Ward") on the telephone. Ward suggested they go to Fair Lanes to shoot pool and drink beer. Partly because Marshall did not have a car and Fair Lanes was within walking distance from his house and in part because Marshall did not have work on Monday, Memorial Day, Marshall agreed to meet Ward at Fair Lanes. After taking a shower and calling his then girlfriend Melissa Pauline and telling her to meet him, Ward, and Ward's girlfriend at the time, Lynn Nash ("Nash"), at Fair Lanes, Marshall walked by himself to Fair Lanes, arriving at around 10:45-11:00. Melissa Pauline drove to Fair Lanes and joined the group shortly thereafter.

Prior to entering the bar entrance to Fair Lanes, 2 Marshall noticed a Gwinnett County Sheriff Deputy sitting with his car located near the main entrance. For security reasons, Fair Lanes employed security officers during the weekend. On Fridays and Saturdays, Fair Lanes was open twenty-four hours, and on Sundays (including Sundays of holiday weekends), Fair Lanes closed between 1:00 a.m. and 2:00 a.m. On Fridays and Saturdays, officers worked from 8:00 p.m. to 4:00 a.m. While on Sundays security officers worked from 8:00 p.m. until 12:00 a.m. 3

Upon arriving through the bar entrance, Marshall noticed that both Ward and Nash were already sitting by the bar drinking. Marshall sat next to the couple and ordered himself a beer. For about the next forty-five minutes, Marshall consumed approximately three or four beers and two shots of liquor. Marshall admits that he had a "buzz" after drinking this amount of alcohol. At approximately 11:45, the bartender announced last call and Marshall ordered another drink. Around this time, Ward left the bar to go to the bathroom; shortly thereafter Marshall followed Ward to the bathroom.

Both Ward and Marshall left the bathroom together. As they left the bathroom, in the corridor between the bathroom and the lobby of the bowling alley, a "young man" 4 with a "big thick gold necklace around his neck" confronted Ward, asking him: "[H]ow do you like my necklace?" Ward responded: "I don't like your necklace ... it's ugly. I don't like it. I wouldn't wear it." The young man then told Ward that he was going to put some green emeralds in the eyes of the charm that hung from the necklace, and asked Ward: "You'll like it then, won't you?" Ward replied: "[L]ook, I told you I don't like it. I wouldn't wear it."

After Ward's last response, the young man started to get mad; Ward also got angry. In an attempt to stop a potential fight, Marshall stepped in between Ward and the young man and told Ward: "[H]ey, so what? He's got an ugly necklace. Let's go back. The girls are waiting on us. You know, let's go back." Marshall then told the young man: "[H]e [Ward] doesn't like your necklace. Just leave it alone. It's no big deal."

At the moment of Marshall's last response to the young man, a second male approached Marshall and pushed Marshall away from Ward and the young man stating: "[H]ey man, why do you want to get between my buddy and his fight?" Marshall answered: "I just told them it's a stupid idea in the first place, he's got an ugly necklace, he [Ward] doesn't like it, so what? Let's just forget about it and go." At this point, Marshall and Ward started to walk back to the bar where their girlfriends were waiting.

Before making it halfway back to the bar, Marshall and Ward were confronted by five males. Two of the five were the same two men Marshall and Ward had encountered in the corridor outside of the bathroom. According to Marshall, all five males were dressed in "ganglike" fashion; they wore very baggy clothes, the waistlines on their pants hung low, and they wore large tee shirts.

The young man wearing the necklace again questioned Ward by saying: "[S]o you don't like my necklace, huh?" Ward responded: "[L]ook, I already told you once I don't like your necklace. I don't care what you think I think about it."

At this same time, the second man asked Marshall: "[S]o you want to step between my buddy and his business, huh?" Marshall replied: "[L]ook, it's no big deal, so what? Let's just forget about it." While Marshall was talking to the second man, Ward and the first young man started to push each other. Marshall glanced at the commotion, and then quickly looked back to make sure that "he wasn't going to start pushing me or something." During this moment, one of the three other men who had previously been uninvolved struck Marshall. Marshall fell to the floor, where he was kicked repeatedly in his head and back until he found refuge under a table.

After being helped to his feet by a stranger, Marshall walked straight to the bar, where his girlfriend, Melissa Pauline was still waiting. Marshall asked Melissa to drive him to the hospital. Melissa concerned with driving because she had been drinking, suggested they look for the security officer or "bowling alley cop." Marshall agreed. Although they both looked for the security officer, he was never found. Melissa then drove Marshall to a hospital.

Upon arriving at the hospital, Marshall's blood was drawn, his blood alcohol level was .215, a level more than twice the legal limit to drive a vehicle. Marshall had sustained a severely broken jaw and several displaced teeth. He had surgery to fix his jaw and was released from the hospital three days later.

Subsequently, Marshall filed a premises liability suit against defendant Fair Lanes Maryland Bowling, Inc., in the State Court of Fulton County, Georgia. Specifically, Marshall's Complaint alleged that defendant was liable to him because Fair Lanes: (1) did nothing to prevent, deter, or stop the attackers from beating him, (2) despite having actual and constructive notice of similar events taking place on the premises, failed to take any precautions or implement preventive measures to prevent this type of injury, (3) knew or should have known of the dangerous conditions that existed on the premises, (4) failed to warn Marshall of potential injury and danger, and (5) negligently failed to provide security measures to prevent the altercation from happening.

To support his allegations, Marshall later produced evidence of at least three prior criminal incidents occurring at Fair Lanes. For example, in one incident an invitee was beaten with a baseball bat by three assailants. A second incident involved a gang related drive-by shooting with bullets entering Fair Lanes.

After the case was removed to federal court based on diversity jurisdiction, and following discovery, Fair Lanes filed a motion for summary judgment. Fair Lanes contended that Marshall assumed the risk of his injuries by voluntarily involving himself in the altercation, and consequently, because Marshall's conduct was the sole proximate cause of his injuries, Fair Lanes was entitled to judgment as a matter of Georgia law.

The district court granted Fair Lanes' motion, finding that "[t]he facts in this record demonstrate that [Marshall's] injuries are the result of his own actions and [Fair Lanes] is not liable, under Georgia law, for the folly of [Marshall's] actions." R2-28-6. The district court then entered final judgment. Marshall timely appealed.

On appeal, Marshall claims primarily that the district court erred in granting Fair Lanes' motion for summary judgment because there are genuine issues of material fact as to whether Marshall assumed the risk of his injuries by engaging in mutual combat. For the reasons that follow, we agree with Marshall that there are questions of fact concerning whether Marshall's injuries were caused by his own actions. Accordingly, we reverse the district court's order granting Fair Lanes' motion for summary judgment.

STANDARD OF REVIEW

We review de novo the district court's order granting summary judgment. Harris...

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