Reichert v. Atler, A-M

• Docket Nº: No. 20963
• Citation: 875 P.2d 379, 117 N.M. 623, 1994 NMSC 56
• Case Date: May 10, 1994
• Court: Supreme Court of New Mexico

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875 P.2d 379 117 N.M. 623 Joseph REICHERT, personal representative of the Estate of
Alfredo Castillo, deceased, Plaintiff-Petitioner,
v.
Tony ATLER and Josie Atler, d/b/a the A-Mi-Gusto Lounge,
Defendants-Respondents. No. 20963. Supreme Court of New Mexico. May 10, 1994.
Rehearing Denied June 1, 1994.

Louis Marjon, Clark Varnell and James C. Ellis, Albuquerque, for petitioner.

Tony Atler, pro se.

Robert Dale Morrison, Albuquerque, for Josie Atler.

William H. Carpenter and Michael B. Browde, Albuquerque, for amicus curiae New Mexico Trial Lawyers Assn.

OPINION

RANSOM, Justice.

As personal representative of the estate of Alfredo Castillo, Joseph Reichert brought this wrongful-death action against Tony and Josie Atler, doing business as the A-Mi-Gusto Lounge. Castillo was killed when assaulted by another patron at the Atlers' bar. Following a bench trial, the court adjudged the Atlers liable for the entire damages. The Atlers appealed and the Court of Appeals reversed, holding that the Atlers' negligence must be compared to the assailant's conduct and that the Atlers' liability should

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[117 N.M. 624] be limited to their percentage of the fault. Reichert v. Atler, 117 N.M. 627, 875 P.2d 384 (Ct.App.1992). We issued a writ of certiorari to determine whether the negligent failure of the owner or operator of a business to protect patrons from foreseeable harm should be compared to the actions of the perpetrator of that harm and, if so, whether the owner or operator should be held liable only for proportionate fault and not jointly and severally liable with the perpetrator. We hold that the conduct should be compared and that the owner or operator is liable only for its proportionate fault, and we affirm the Court of Appeals.

In the evening of December 20, 1985, Castillo stopped at the A-Mi-Gusto Lounge to cash his paycheck. He was a sheetrock installer by trade and also was a musician with a band that played at the bar. Shortly after entering, Castillo was engaged in argument by Pablo Ochoa, a clearly intoxicated patron who had been drinking at the lounge since mid-afternoon. Bar employee Deborah Espinosa, the Atlers' daughter, observed Castillo and Ochoa argue for almost five minutes but did not attempt to stop the fight nor summon the police. The argument ceased while Castillo went into an office with Espinosa to cash his paycheck. Castillo told Espinosa that he recently had been in a fistfight with Ochoa and that he feared Ochoa would act violently. Castillo also told Espinosa that he knew Ochoa carried a gun and that he had heard that Ochoa killed someone in another state. When Castillo returned from the office, the argument with Ochoa resumed and then escalated. Ochoa pulled out a pistol, shot Castillo six times, fled from the bar, and has not been apprehended. Castillo died en route to the hospital.

The A-Mi-Gusto Lounge has a reputation as being one of the most dangerous bars in Bernalillo County and has been, in fact, the scene of numerous shootings, stabbings, and assaults. Despite the bar's reputation and history, the Atlers did not employ any professional security personnel and employed only one bouncer who normally did not arrive at the bar until 9:00 p.m. At the time of the shooting, the owners' son, Doug Atler, was the only male employee on duty. He was at the door checking identification and doing visual checks for concealed weapons.

In his wrongful-death action, Reichert alleged that the Atlers breached a duty to provide adequate security to protect patrons of the bar, including Castillo, who was specifically a foreseeable victim of harm. The trial court agreed. At issue on certiorari is the court's determination that the Atlers' negligence should not be compared with Ochoa's conduct and that the Atlers are liable for all damages awarded for the wrongful death. In an alternative conclusion, the court stated that if it were to be decided on appeal that the Atlers' negligence should be compared to Ochoa's conduct, then the Atlers were one-third at fault and Ochoa was two-thirds at fault. The court did not find Castillo to have been contributorily negligent.

In Coca v. Arceo, 71 N.M. 186, 189, 376 P.2d 970, 973 (1962), this Court held:

[T]he proprietor of a place of business who holds it out to the public for entry for his business purposes, is subject to liability to guests who are upon the premises and who are injured by the harmful acts of third persons if, by the exercise of reasonable care, the proprietor could have discovered that such acts were being done or about to be done, and could have protected against the injury by controlling the conduct of the other patron.

Applying this principle and relying on Weidenfeller v. Star & Garter, 1 Cal.App.4th 1, 2 Cal.Rptr.2d 14 (Ct.App.1991), and Blazovic v. Andrich, 124 N.J. 90, 590 A.2d 222 (1991), the Court of Appeals held that the actions...