Rosensteil v. Lisdas

• Jurisdiction: Oregon
• Court: Oregon Supreme Court
• Writing for the Court: Before PERRY; O'CONNELL; LANGTRY
• Citation: Rosensteil v. Lisdas, 253 Or. 625, 456 P.2d 61 (Or. 1969)
• Decision Date: 16 July 1969
• Parties: Albert ROSENSTEIL, Appellant, v. George A. LISDAS and Margaret I. Lisdas, dba Somewhere Cafe, Respondents.

Page 61

456 P.2d 61

253 Or. 625

Albert ROSENSTEIL, Appellant, v. George A. LISDAS and Margaret I. Lisdas, dba Somewhere Cafe Respondents.

Supreme Court of Oregon, Department 1.

Argued and Submitted March 4, 1969.

Decided July 16, 1969.

David K. Mitchelson, Beaverton, argued the cause for appellant. With him on the brief were Wallace A. Leaf, Beaverton, and Leo Levenson, Portland.

Carrell F. Bradley, Hillsboro, argued the cause for respondents. On the brief were Schwenn, Bradley & Batchelor and Robert W. Redding, Hillsboro.

Before PERRY, C.J., and McALLISTER, O'CONNELL, DENECKE and LANGTRY, JJ.

O'CONNELL, Justice.

This is an action to recover damages for personal injuries suffered by plaintiff as a result of his efforts to break up an affray which occurred in defendants' restaurant. The trial court directed a verdict for defendants. Plaintiff appeals.

At about 3:00 a.m. on August 13, 1966 the plaintiff and a companion stopped to eat at defendants' all-night restaurant in the small town of Cornelius. The defendants' restaurant was adjacent to a bar which was also operated by defendants. The bar had closed at 2:30. The restaurant was crowded with people some of whom had come from defendants' bar and other bars in the town.

Soon after plaintiff entered the restaurant a man came running into the restaurant pursued by two others later identified as David and Jeff Hale. Plaintiff described the scene as follows:

'A. We were sitting there eating ham and eggs and all of a sudden the door burst open and this fellow came in screaming. It wasn't screaming--it was an actual screech and he was pretty well beat up. His eyes were closed and this other fellow immediately came in the door right after him and he more or less tackled him, and he wrapped himself around him and they both fell to the floor, and the fellow that tackled the other fellow put his arms and legs around him and held him, and the other fellow was in there by then and started kicking him in the head.

'I didn't believe it at first. I sat there watching him kicking him in the head. The whole place was silent except for the thump, thump, thump. The fellow on the floor finally quit screaming. I guess he was knocked out. He lay still and the fellow standing up still kept kicking him. I just couldn't see it, so I jumped up and grabbed the fellow from behind that was doing the kicking and held his arms. And a few seconds after that several people, I guess they were customers drug the other fellow off of the floor that was holding the other one, and the fellow I was holding, he started saying, 'don't his me. Don't hit me. I don't want to go to jail. Please don't hit me.' So, I figured I had already become involved enough so I let him go and in the meantime the other fellow had been ejected out the front door and when I did let him go, he went out what I took to be the back door. * * * That fellow was still unconscious and people were milling around and I went over and his hand was stepped on by people milling around. I started to stoop over and help the man and I was stabbed in the back. * * * I guess they came in the back door, * * * it was the fellow that walked out the back door and the fellow that had been forced out the front. The two that jumped this other fellow. * * * (O)ne grabbed me and started kicking and fighting in desperation more than anything. * * * He had a knife. * * * Someone grabbed me around the neck and things really went wild then and we ended up back through the kitchen door and it turned out to be his brother that was--he was holding me and the other fellow tried to stab me in the stomach and I bent way over and put my arms out and he stabbed me in the left arm. And then I went back through the kitchen and towards the counter there and he stabbed me in the other arm. The whole place was just really wild then and I guess I ran toward the front door and got out to my pick-up which was parked right in front of the front door * * *.'

Plaintiff contends that defendants owed him a duty to have employed precautions so that any disorderly person entering the restaurant would be subject to reasonable restraint. The complaint alleges that defendants were negligent in allowing on the restaurant premises David and Jeff Hale, persons known to defendants as having violent and disorderly propensities, in allowing disorderly conduct on the premises and in failing to provide employees to maintain order.

The only personnel working in the restaurant at the time of the foray were a cook, a dishwasher and a waitress, all women.

There was evidence of previous disturbances in the restaurant. The city policeman testified that there had been a previous violent altercation with the Hale brothers in the same restaurant about a year before. A deputy sheriff testified that he was called to the restaurant 'numerous times for different drunks, fights.' The waitress testified that during the thirteen days she had worked immediately previous to the night in question, there had been 'a few 'hassles'.' The waitress testified that the Hale brothers, the first victim, two other men and a woman had been customers in the cafe and had left 'ten to fifteen minutes' before their eventful return.

There was no telephone on the restaurant premises by which the police could be called. There was a pay phone in a booth across the street, and the police could be signalled for help by flipping an electric switch which turned the light off in the cafe's street sign. There was no evidence that anyone switched off the light on the night in question. The cook testified that after the first altercation she took a dime and started for the back door en route to the pay phone across the street to call the police, but met David Hale returning to the restaurant. He 'had a knife in his hand and had it opened and he grabbed me by the throat and shoved me against the machine that cuts french fries and he told me to get back in and stay there or he would cut my head off.' She complied.

Plaintiff contends that this evidence was sufficient to entitle him to have the case submitted to the jury.

The owner of a restaurant, amusement place, tavern, or inn owes his business guests a duty of ordinary reasonable care to protect them from injury at the hands of other patrons while on the premises. Peck v. Gerber, 154 Or. 126, 59 P.2d 675, 106 A.L.R. 996 (1936).

We hold that the evidence in this case is not sufficient to permit the jury to find that defendants negligently caused plaintiff's injury. It would be unreasonable for the jury to find that defendants could have anticipated and should have been prepared for the contingency that two men crazed with drink, wildly chasing their quarry, would burst into the restaurant, criminally assault their victim and thus draw into the fray a sympathetic bystander in the restaurant. There is no evidence that anything previously occurring in the restaurant would have given defendants reason to believe that such a wild affray would erupt from the street.

Even if a restaurant owner has the duty under some circumstances to employ personnel who are capable of keeping order and thus protect his patrons from injury resulting from the foreseeable conduct of his patrons, he is not required to employ such personnel for the contingency that outsiders will elect to use the restaurant rather than the street as their battleground. The fact that the Hale brothers had previously been in the restaurant gave defendants' employees no warning that they would stir up trouble and suddenly return to burst into the restaurant. It is the responsibility of the public police to quell such disturbances whether they occur on the street or in a restaurant. And even where previously violence has swept in from the streets, we do not think that it should be the duty of a businessman operating a restaurant to risk his own life or employ others to risk theirs in order to protect bystanders who happen to be in the restaurant rather than on the street. That is a function which he should be able to leave to government police.

The cases cited in the dissenting opinion are not apposite. In those cases the owner of the premises was in a position to prevent harm to his patrons by quelling a disturbance which was in its incipient stage in his presence. ¹ In the case at bar nothing had occurred in defendant's presence to give warning that his patrons were in danger. As we have already indicated, the fact that previous disturbances had occurred in the restaurant would not impose upon defendants the duty to prepare against disturbances which originated in conflict elsewhere and which result in harm to defendant's patrons simply because the victim without any warning to defendants chose to use defendants' restaurant as a place of refuge.

The judgment is affirmed.

LANGTRY, Justice (Pro Tempore), dissenting.

It should be noted that the evidence, in addition to that recited in the majority opinion, showed that the defendants seldom visited the operation of their restaurant during the night, but that written notification was given to them by employees about altercations occurring in the restaurant at night.

There was evidence from which a jury reasonably could draw the inference that the Hale brothers frequently were violent and dangerous. The city police officer testified that on the occasion of the Hale brothers' previous fight in this same restaurant they assaulted him from front and rear, trying to disarm him. Three officers at that time arrested David, but Jeff escaped. With reference to David the officer said that he did not try to arrest him until help came, '* * * you would have a rough time taking him by yourself. * * * You would have to know the man.' These were the brothers that the defendants knowingly allowed the frequent their restaurant. In this restaurant there was no practical method provided for calling police and there were no personnel able to maintain order.

On defen...