McFarlin v. Hall

• Citation: 619 P.2d 729,127 Ariz. 220
• Decision Date: 14 October 1980
• Docket Number: No. 14868-PR,14868-PR
• Parties: John McFARLIN, a single man, Appellee, v. Clarence E. HALL and Joan Hall, dba The Horseman's Lounge, Appellants.
• Court: Supreme Court of Arizona

Page 729

619 P.2d 729

127 Ariz. 220

John McFARLIN, a single man, Appellee, v. Clarence E. HALL and Joan Hall, dba The Horseman's Lounge, Appellants.

No. 14868-PR.

Supreme Court of Arizona, In Banc.

Oct. 14, 1980.

Rehearing Denied Nov. 18, 1980.

Udall, Shumway, Blackhurst, Allen, Bentley & Lyons by John H. Lyons, F. Timothy Hoyt, Jr., Mesa, for appellants.

Hofmann, Salcito & Stevens by Daniel R. Salcito, James W. Evans, Phoenix, for appellee.

STRUCKMEYER, Chief Justice.

Appellee, John McFarlin, initiated this action against Clarence and Joan Hall, owners of the Horseman's Lounge, after he was shot in the bar's parking lot by Frank Dominquez, another patron of the bar. After a trial in Maricopa County Superior Court the jury returned a verdict for $85,000.00 in favor of McFarlin. The Halls moved for judgment notwithstanding the verdict or, in the alternative, for a new trial. The trial court denied this motion and defendants appealed. The Court of Appeals reversed in a memorandum decision. This Court granted a petition for review, see Rule 23, Rules of Civil Appellate Procedure, 17A A.R.S. Memorandum decision of the Court of Appeals vacated and judgment of the trial court affirmed.

Appellee predicated his action on the holding in Pierce v. Lopez, 16 Ariz.App. 54, 490 P.2d 1182 (1971). There, a duty was imposed on tavern owners to exercise reasonable care and vigilance to protect their invitees from injury.

The appellants first argue that the trial court erred in failing to direct a verdict for them and for denying their motion for judgment notwithstanding the verdict for the reason the appellee did not as a matter of law establish a prima facie case. It is their position that the necessary element of foreseeability to establish a negligence case is totally lacking in that there is no evidence which would permit a jury to find that the appellants knew or should have known that Dominquez would shoot McFarlin, or that there is any evidence whatsoever which shows an awareness by appellants of any violent propensity on the part of Dominquez.

We do not agree with appellants that the jury was required to find the Halls should have been aware of the probability of Dominquez using a gun to injure McFarlin. It is sufficient if the jury could have found on the evidence that a reasonable person would have foreseen that the condition or presence of Dominquez on the presmises posed a threat of physical harm to the patrons or employees of the bar and would have taken action to prevent such harm. Pierce v. Lopez, supra at 57-58, 490 P.2d 1182. The foreseeability of the extent of actual injury or the manner in which it was inflicted is immaterial. Harper and James, The Law of Torts, § 18.2, p. 1026, § 20.5(6), p. 1147; Restatement (Second) of Torts, § 281, comment f; cf. Parsons v. Smithey, 109 Ariz. 49, 53-54, 504 P.2d 1272 (1973). This is not inconsistent with the principle announced in Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99 (1928), and accepted as the law of this state in West v. Cruz, 75 Ariz. 13, 19, 251 P.2d 311 (1952). The Palsgraf principle requires that liability be imposed only where both the plaintiff and the risk are foreseeable to a reasonable person. The holding here is that a broad view must be taken of the class of risks and victims that are foreseeable. See Harper and James, supra at 1147, n. 43; Restatement (Second) of Torts § 281, comment g; Tucker v. Collar, 79 Ariz. 141, 285 P.2d 178 (1955).

The evidence of liability at the trial consisted almost entirely of the testimony of appellant Clarence Hall on cross-examination and testimony of statements made by appellants after the shooting. While a marked difference existed between Clarence Hall's testimony and statements attributed to the appellants, the evidence was clear that Frank Dominquez, the man who shot the appellee, had in the late 1960's been a frequent customer of the Halls' bar but that two or three years prior to the shooting Dominquez stopped coming there. A few weeks before the assault, he reappeared at the lounge.

Numerous witnesses at the trial related statements made by Clarence Hall after the shooting. Hall was quoted as describing Dominquez as a "troublemaker." To one policeman, Hall not only described Dominquez as a "troublemaker," but also as "crazy." To another policeman, Hall said that Dominquez "had caused trouble and gotten into fights at the bar" before his disappearance. There was also testimony that Hall had stated that he had "86'd" Dominquez. While Hall said in his testimony that by this he meant that a customer is asked to leave for the evening, there was also evidence that this is a trade term for permanent expulsion, used only in serious situations. Hall admitted in his testimony that he told the police that Dominquez would argue with other customers, and that he might have used the word "troublemaker" to describe Dominquez. However, he denied that Dominquez ever showed any tendency for physical violence. Hall contended that his usage of "troublemaker" and "fights" referred to Dominquez's persistent pestering of female customers to dance with him, even when these female customers refused or were accompanied by their boyfriends or husbands.

Witnesses testified that Joan Hall said she feared Dominquez because "of a look in his eyes." She told the appellee's stepfather that she and her husband were both "deathly afraid" of Dominquez and "that she just felt that something was going to happen but that they were afraid of" Dominquez. Another witness testified that Mrs. Hall said "of all the people that have come into their place over the years, there were only two she was really afraid of and Dominquez was one of them."

Both appellants told people that they believed that Dominquez had spent the prior two to three years in jail or in an institution for the mentally ill, and that they believed that Dominquez had been arrested for drunk and disorderly conduct numerous times in the past. Witnesses also quoted the Halls as saying that they "knew they shouldn't have let him back into the place."

The parties hotly disputed Dominquez's condition on the night of the shooting. Clarence Hall admitted that he had to ask Dominquez to quit pestering some female customers for a dance, but he denied that Dominquez was intoxicated when Hall left the bar near midnight, one hour before the shooting. Clarence Hall testified that as he left the bar, he told Dominquez "to be good." On the other hand, a policeman reported that Hall admitted to him that Dominquez was intoxicated when Hall left the bar. Another witness testified that Hall told her that he had been hesitant in letting Dominquez stay at the bar that night, but that since Dominquez was very calm and was not causing any trouble, he saw no reason to ask Dominquez to leave.

Eyewitnesses other than Hall were nearly unanimous that Dominquez was intoxicated that evening. A bartender told the jury that she made Dominquez a weak drink because she was not sure of his condition. She said that his speech was slurred and that he was walking "a little uneasy." A member of the band in which the appellee was also playing that night, reported that he observed Dominquez from one or two feet away at around one o'clock in the morning and Dominquez was "staggering drunk."

The policeman who apprehended Dominquez shortly after the shooting also said that Dominquez was intoxicated. The officer based this opinion on Dominquez's erratic driving, slurred speech and show eye reaction to light, compounded by a strong odor of alcohol. According to this same officer, Dominquez violently resisted arrest and had to be physically subdued.

One witness, a barmaid, testified that Dominquez was not slurring his speech or staggering in his walk. Yet this same witness testified that Dominquez followed her around for some time trying to convince her to go on a date with him after the bar closed, all the while insisting that they had dated previously when, according to the barmaid, they had not. While she testified later that Dominquez annoyed her more than made her afraid, the barmaid admitted that she asked a member of the band to act as her "brother" if Dominquez began again to pressure her for a date.

Taking this evidence as true and all reasonable inferences therefrom, the jury could have found that the Halls thought Dominquez had spent his most recent years in jail or a mental hospital, or both; that Dominquez had, at least in the past, shown a habit of fighting with other customers of the bar; that Dominquez had proven to be such a troublemaker that Hall permanently expelled Dominquez from the premises; and that Dominquez's overall personality and conduct caused the Halls to fear him and lead them to believe that they could not control him. The jury further could have found that the Halls or their employees allowed Dominquez to become intoxicated and remain on the premises, even after Dominquez evidenced a return to his past course of conduct by pestering female customers, and that they knew or should have known that intoxication could result in the exaggeration of Dominquez's undesirable conduct.

To establish negligence, the plaintiff only needs to present facts from which negligence can be reasonably inferred. E. L. Jones Construction Co. v. Noland, 105 Ariz. 446, 453, 466 P.2d 740 (1970). An appellate court must view the evidence in the light most favorable to the prevailing party and give that party all the reasonable inferences arising from that favorable view of the evidence. E. L. Jones Construction Co. v. Noland, supra; Bullard v. Stonebraker, 101 Ariz. 584, 422 P.2d 700 (1967). A judgment will be affirmed based on a jury verdict if substantial evidence is found to support the verdict. Siegrist v. Carrillo, 112 Ariz. 218, 222, 540 P.2d 690 (1975). There was sufficient evidence, if believed by the jury, to support a finding that the defendants or their employees were...