Ratigan v. K.D.L., Inc.

• Decision Date: 02 January 1998
• Docket Number: No. S-96-415,S-96-415
• Citation: 573 N.W.2d 739,253 Neb. 640
• Parties: Dennis M. RATIGAN, Appellant, v. K.D.L., INC., d/b/a Sundowner Bar, Appellee.
• Court: Nebraska Supreme Court

Page 739

573 N.W.2d 739

253 Neb. 640

Dennis M. RATIGAN, Appellant, v. K.D.L., INC., d/b/a Sundowner Bar, Appellee.

No. S-96-415.

Supreme Court of Nebraska.

Jan. 2, 1998.

Syllabus by the Court

1. Summary Judgment. Summary judgment is proper when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to summary judgment as a matter of law.

2. Summary Judgment: Appeal and Error. When reviewing an order granting a motion for summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. The question on such review is not how a factual issue is to be decided, but whether any real issue of genuine fact exists.

3. Summary Judgment: Evidence: Proof. A party moving for summary judgment must make a prima facie case by producing enough evidence to demonstrate that it is entitled to a judgment if the evidence were uncontroverted at trial. If such a showing is made, the opposing party has the burden to produce evidence showing an issue of material fact which prevents judgment as a matter of law for the moving party. However, if a prima facie showing is not made, the opposing party is not required to reveal evidence which he or she expects to produce at trial to prove the allegations contained in his or her petition.

4. Negligence: Proof. In order to succeed in a negligence case, a plaintiff must establish the defendant's duty not to injure the plaintiff, a breach of that duty, proximate causation, and damages.

5. Negligence: Invitor-Invitee: Liability. The proprietor of a place of business who holds it out to the public for entry for his business purposes, is subject to liability to members of the public while upon the premises for such a purpose for bodily harm caused to them by the accidental, negligent, or intentionally harmful acts of third persons, if the proprietor by the exercise of reasonable care could have discovered that such acts were being done or were about to be done, and could have protected the members of the public by controlling the conduct of the third persons or by giving a warning adequate to enable them to avoid harm.

6. Negligence: Invitor-Invitee: Liability. Whether a business proprietor is liable for the adverse actions of a third party against an invitee depends primarily upon whether those actions were reasonably foreseeable to the proprietor.

7. Negligence: Assault. Whether a history of criminal activity makes an assault foreseeable is a question of fact.

8. Negligence: Liability. If the likelihood of an intervening act was one of the hazards that made a defendant's conduct William J. Pfeffer and Jeff T. Courtney, of Pfeffer Law Offices, Omaha, for appellant.

negligent--that is, if it was sufficiently foreseeable to have this effect--then the defendant will generally be liable for the consequences.

J. Joseph McQuillan and Scott A. Calkins, of Walentine, O'Toole, McQuillan & Gordon, Omaha, for appellee.

WHITE, C.J., and CAPORALE, WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.

STEPHAN, Justice.

Shortly after midnight on September 15, 1993, Michael Ray Smith shot Dennis M. Ratigan, Sr., during an altercation in the parking lot of the Sundowner Bar. Both men had been in the tavern prior to the incident. Ratigan brought this personal injury action against K.D.L., Inc., the owner of the Sundowner Bar, claiming that it was negligent in failing to take measures to prevent the shooting and to protect him from harm. The district court for Sarpy County granted summary judgment in favor of K.D.L., and Ratigan appealed. Pursuant to our authority to regulate the caseloads of the Nebraska Court of Appeals and this court, we removed this case to our docket on our own motion. We determine that there are genuine issues of material fact which preclude summary judgment and, therefore, reverse, and remand to the district court for further proceedings.

BACKGROUND

In his petition, Ratigan alleged that he was "assaulted and battered" by Smith while on the premises of the Sundowner Bar in Sarpy County, Nebraska, on September 15, 1993. He alleged K.D.L. was negligent in (1) failing to warn him of the "dangerous propensities" of Smith and his companion, (2) failing to protect him from assault by Smith despite actual or constructive knowledge that the assault would occur, (3) failing to summon police in sufficient time to prevent the assault, (4) failing to employ adequate security personnel, (5) retaining incompetent employees, and (6) failing to establish or implement safety precautions. Ratigan alleged that as a direct and proximate result of this negligence, he received serious and permanent injuries. In its answer, K.D.L. admitted that the assault occurred on its premises, but denied that it was negligent and alleged that Ratigan's injury was "caused by the intentional unforeseen criminal conduct of Michael Ray Smith."

In support of its motion for summary judgment, K.D.L. offered the depositions of Ratigan; his wife, Micheline Ratigan; Brian C. Champion; Donald Finley; and Kenneth Pokorny. Ratigan did not object to any of the depositions and offered no additional evidence.

Deposition Testimony of Ratigan.

Ratigan and his wife arrived at the Sundowner Bar at approximately 11 p.m. on September 14, 1993. There were 10 to 15 other patrons in the tavern when they arrived, including their son, Dennis Ratigan, Jr. (Ratigan Jr.), and his friend, Danny Lee, who were playing pool with Michael Ray Smith and his companion. Ratigan and his wife sat down at the bar, which was 20 to 25 feet away from the pool table. They were served beer by the bartender, Champion. Ratigan accepted his son's invitation to join him in a pool game against Smith and his companion.

When the game was over, Smith placed Ratigan Jr. in a headlock and rubbed his hair with his knuckles, stating that he would "teach the young punk about the game." Sensing that the contact between Smith and Ratigan Jr. was "getting out of hand," Ratigan offered to buy Smith and his companion a drink in order to diffuse the situation. At about the same time, Champion approached the pool table and told Smith and Ratigan Jr. to "knock it off." After paying Champion for the drinks, Ratigan sat down with his wife at the bar.

Ten to fifteen minutes later, Ratigan asked Champion where Ratigan Jr. was and Champion replied that he was uncertain, but he thought that Ratigan Jr. had left. Curious as to why his son would have left without saying goodby, Ratigan walked to a window After the incident, Ratigan learned from various sources that Smith had at one time been "barred" from the Sundowner Bar because he was a "troublemaker."

                at the front of the tavern and observed Smith and his companion "beating on" Ratigan Jr. in the parking lot of the tavern.  After asking Champion to call the police, Ratigan went through the front door and ran toward the fight.  He first threw Smith aside and then fought with Smith's companion.  After 2 to 3 minutes, Ratigan heard someone shout, "He's got a gun."   Ratigan stood up and began walking back toward the front door of the tavern.  He observed Smith standing near a pickup truck with a gun in his hand, and he heard Smith say, "I'm going to kill you, Old Man."  He then felt a bullet strike him in the stomach.  Ratigan then walked back into the tavern and asked Champion to call an ambulance
                

Deposition Testimony of Micheline Ratigan.

Micheline Ratigan is married to Ratigan and is the mother of Ratigan Jr. Lee and Ratigan Jr. were already present at the Sundowner Bar when she and Ratigan arrived on the evening of September 14, 1993.

While seated at the bar, Micheline Ratigan watched her husband and son play pool with Smith and his companion. During the game, Smith was loud and obnoxious and appeared to Micheline Ratigan to be "intoxicated or on drugs. Just very weird." When the game was over, she observed Smith place her son "in a headlock" and tease him, calling him a "young punk." She thought that Smith's actions were hurting her son physically. She observed Ratigan intercede and buy a drink for Smith and his companion in order to calm things down; Ratigan then returned to the bar and sat down next to her.

Sometime later, Ratigan and Micheline Ratigan realized that their son was no longer in the tavern. Ratigan got up from the bar and walked out the front door of the tavern to look for him. Approximately 2 minutes later, Micheline Ratigan walked to the front door and looked outside. She observed her son fighting with Smith's companion. She did not immediately see her husband, but called his name and then observed him running to the aid of their son. The next thing she recalled was hearing a gunshot and observing her husband come into the tavern, stating that he had been shot. She testified that "minutes" transpired from the time she first observed the fight through the window until her husband returned to the tavern and that Champion was standing behind the bar during this period.

Deposition Testimony of Champion.

Champion estimated that Ratigan Jr. arrived at the Sundowner Bar at approximately midnight or 12:30 a.m. and that his parents were already there when Ratigan Jr. arrived. With regard to Smith, Champion testified as follows:

Q.... Do you recall Mike Smith coming in that night?

A. Yes.

Q. Do you know approximately what time he came in?

A. He was in there probably twelve-thirtyish. It was close to being last call, so I wasn't really going to mess with him because he's not--he wasn't supposed to be in there in the first place.

Q. Why is that?

A. Back when--when was it we opened the bar, September? Let's say in mid September is when we took over...