Monteer v. Prospectors Lounge, Inc.

• Decision Date: 14 January 1992
• Docket Number: No. WD,WD
• Citation: 821 S.W.2d 898
• Parties: Goldie MONTEER, Appellant, v. PROSPECTORS LOUNGE, INC., Respondent. 44455.
• Court: Missouri Court of Appeals

Page 898

821 S.W.2d 898

Goldie MONTEER, Appellant, v. PROSPECTORS LOUNGE, INC., Respondent.

No. WD 44455.

Missouri Court of Appeals Western District.

Jan. 14, 1992.

Michael W. Walker, Kansas City, for appellant.

David R. Buchanan, Kansas City, for respondent.

Before LOWENSTEIN, C.J., and KENNEDY and SPINDEN, JJ.

SPINDEN, Judge.

Goldie Monteer's husband, Marion Junior Monteer, was killed on September 26, 1987, in the aftermath of a bar fight at Prospectors Lounge. Goldie Monteer sued the bar on the theory that because its employee did not call police when a fight broke out, it violated a city ordinance and should be deemed negligent per se. She appeals the trial court's refusal to so instruct and its refusal to permit a police training officer's testimony about how police officers are instructed to handle bar fights. We affirm.

The jury heard evidence that Goldie and Junior Monteer had been at Prospectors Lounge for about nine hours when five or six men, including Fred Heitman, began brawling. Junior Monteer intervened and assisted the bartender in breaking up the brawl. The bartender, and only employee on duty at the time, testified that she threatened to call the police, but Monteer asked her not to because he and the fighters were close friends. An unidentified male did dial 911 at 9:47 P.M. and reported the fight, but hung up without giving complete details. ¹

An officer receiving the call to 911 telephoned the bar. The bartender answered and told the officer that police help was not needed because the fighting had ceased. None of the other witnesses were aware of the call from the police and could not corroborate that the hostilities had indeed ceased.

The record is confusing as to whether Heitman left the bar and returned a second time, but in either case he threatened to kill Monteer for interfering with the fight. The bartender said that she was unaware of this threat. Everyone agreed that Monteer appeared unfazed by the threat and returned to drinking and visiting with his wife and a friend. No one, including Goldie Monteer, took Heitman's threat seriously. A few minutes later, Monteer told his wife to order more beer while he went outside, either to check on his car or to get some cigarettes. After Monteer was gone longer than Goldie believed was appropriate, she went outside to see about him. She found him lying on the ground unconscious; his throat had been slashed. An ambulance was summoned to the bar at 10:02 P.M.

The trial court instructed the jury:

Your verdict must be for [Goldie Monteer] if you believe:

First, [Prospectors Lounge] allowed in or upon the premises a disturbance or disorderliness, on September 26, 1987; and,

Second, [Prospectors Lounge] was thereby negligent, and,

Third, as a direct result of such negligence, Marion Junior Monteer died.

The trial court refused Goldie Monteer's request that the second element, that Prospectors Lounge negligently allowed the fight, be eliminated from the verdict director. She argued that if the jury found the first element to be true, it would have constituted a determination that the bar violated § 4.68(k)(1) of Kansas City, Missouri, Ordinance No. 59311 which provides, "No retail licensee, employee, agent or servant of such licensee shall allow in or upon the licensed premises any ... [d]isturbances, disorderliness, lewdness, immoral activities, brawls[.]" Violation of the ordinance, she asserts, constituted negligence per se.

Negligence per se is negligence as a matter of law: The legislature pronounces in statute what the conduct of a reasonable person must be, whether or not the common law would require similar conduct. This court stated, in Sirna v. APC Building Corporation, 730 S.W.2d 561, 566 (Mo.App.1987), that "violation of a statute or ordinance is negligence per se, provided that the violation was the proximate cause of the injury." The Supreme Court of Missouri synthesized numerous cases involving claims of negligence per se against liquor licensees in Moore v. Riley, 487 S.W.2d 555, 558 (Mo.1972):

In recognizing that [violation of liquor control laws] may be the basis of liability, the requirement has been laid down that the person injured must be one of the class for whose benefit an ordinance was adopted to protect persons or property, conserve public health or promote public safety.

Facts showing justification or excuse for the violation can rebut a claim of negligence per se. Schlegel v. Knoll, 427 S.W.2d 480 (Mo.1968). We concur with the conclusion of the U.S. Court of Appeals, D.C. Circuit, that the doctrine must be applied cautiously. Peigh v. Baltimore & Ohio Railway Company, 204 F.2d 391 (1953). We conclude that Goldie Monteer failed to make a record sufficient to support her theory.

Goldie Monteer argues that the bartender violated the ordinance by failing to call police. The ordinance does not require that a licensee call the police; ² it...