Roy v. Banana Joe's of Minnesota, Inc., No. A04-54 (MN 10/5/2004)
| Decision Date | 05 October 2004 |
| Docket Number | No. A04-54.,A04-54. |
| Parties | Dorrick Roy, Appellant, v. Banana Joe's of Minnesota, Inc. d/b/a Banana Joe's Island Bar & Grill, Respondent. |
| Court | Minnesota Supreme Court |
Appeal from the District Court, Hennepin County, File No. PI 02002220.
Paul K. Downes, Sieben, Grose, Von Holtum & Carey, Ltd., and Wilbur W. Fluegel; Fluegel Law Office, (for appellant)
Timothy J. Leer, Robert E. Kuderer, Lee A. Hutton, III; Johnson & Condon, P.A., (for respondent)
Considered and decided by Peterson, Presiding Judge; Stoneburner, Judge; and Wright, Judge.
UNPUBLISHED OPINION
Appellant brought this negligence action against respondent bar, alleging that respondent failed to protect him from assault by a violent patron. A jury returned a verdict in favor of appellant and awarded $1.9 million in damages, including $750,000 for diminished future earning capacity. Based on its determination that respondent had no notice of the threat posed by the violent patron, the district court granted respondent's motion for judgment notwithstanding the verdict (JNOV) and ordered a new trial. But the district court denied respondent's motion for remittitur because the damages award did not exceed an amount sustainable by the evidence. Appellant argues that, because there is evidence to establish that respondent had a duty to protect him, the JNOV and new trial order should be reversed. By notice of review, respondent argues that remittitur should have been applied against damages for appellant's diminished future earning capacity. We affirm in part, reverse in part, and remand.
At approximately 11:30 p.m. on the evening of June 29, 2001, appellant Dorrick Roy and several companions entered respondent Banana Joe's Bar and Grill. Shortly thereafter, Roy went to the restroom. Meanwhile, one of Roy's companions, Kevin Murphy, asked a woman at the bar for a cigarette. The woman's boyfriend confronted Murphy and asked, "Are you talking to my girlfriend?" During this confrontation, Roy returned to Murphy, and the woman's boyfriend was joined by one or two other men. Murphy told Roy that the woman's boyfriend and his companions were causing trouble.
According to Roy and Murphy, a bouncer then approached the group and required Roy, Murphy, and the other men to leave the premises via the back exit. The woman's boyfriend was now among a group of ten to thirty men.1 The group taunted Roy and Murphy as they exited the premises. A different bouncer, who was stationed at the back exit, warned Roy and Murphy,
Roy and Murphy testified that, after leaving the premises, they stayed by the back exit and attempted to convince the bouncer to let them back in. During this conversation, three to five men from the group came from around the corner of a nearby fence and attacked Murphy, punching him in the face several times. One or two bouncers seized Roy and Murphy and pulled them back into the bar. A bouncer and other Banana Joe's employees then helped Murphy clean up his injuries. Roy and Murphy stayed inside with their other companions for approximately fifteen minutes longer until closing time.
While the bar was closing, Roy and Murphy asked if they could remain inside after closing. Banana Joe's staff refused. Roy and Murphy then asked whether they could leave by the front exit, rather than by the back exit where the attack took place. Banana Joe's staff also refused this request. Roy and Murphy then exited with their companions, and while passing through an adjacent parking lot, Roy was attacked by the same group they had confronted earlier that evening.
Banana Joe's offers a substantially different version of events. According to bouncers on duty that night, Murphy was involved in a fight near the men's restroom. Roy and his companions then were ejected from the premises via the back exit. As they were departing, Murphy uttered several racial epithets at a group of men. Roy and his companions returned to the back exit near closing time. As the bar's patrons were exiting, Roy looked for the group of men and asked the bouncer at the exit whether he could look inside. After the bouncer refused, Roy and his companions departed without incident. A bouncer later saw that Roy had been involved in a fight in the adjacent parking lot.
Roy's left shoulder and right eye were injured during the attack. As a result, he has suffered persistent pain and headaches, numbness in his left forearm, blindness in one eye, depression, and other mental distress. Roy also faces the risk of permanent blindness in both eyes.
Roy brought this negligence action against Banana Joe's in February 2002, claiming that the bar had a special duty to protect him from the assault. Roy contends that, because of his injuries, his future earning capacity has been diminished. In 2000 and 2001, Roy pursued a career as a professional football player, with a potential salary exceeding $100,000 per year. But he did not qualify following team try-outs. In 2001, Roy was offered a position as a graduate assistant coach for a college football team, but his injury prevented him from accepting the position. Roy later volunteered as an assistant coach with another college football team.
Roy, who was 28 years old at the time of the trial, has had difficulty securing a paid coaching position since the attack. Should Roy receive a paid position equivalent to the volunteer coaching job, his potential annual income is between $42,500 and $125,000.
The case proceeded to trial, following which the jury returned a verdict for Roy and awarded approximately $1.9 million, including $ 750,000 in lost wages. Banana Joe's moved for JNOV or a new trial. In the alternative, Banana Joe's moved for remittitur of damages for diminished future earning capacity. After concluding that Banana Joe's had no special duty to Roy because the assailant and his companions committed no overt acts on the premises that would provide notice of their dangerousness, the district court granted Banana Joe's motions for JNOV and a new trial. The district court denied Banana Joe's motion for remittitur, summarily finding that the damages award did not exceed an amount sustainable by the evidence. This appeal followed.
Roy first contends that the district court erroneously granted JNOV based on its conclusion that as a matter of law Banana Joe's had no duty to protect Roy. JNOV is proper if either the verdict is manifestly contrary to the entire evidence or, notwithstanding the evidence, the moving party is entitled to judgment as a matter of law. Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998). We review de novo the district court's decision to grant a motion for JNOV. Id. In doing so, we view the evidence in the light most favorable to the verdict, drawing any reasonable inference from the evidence as a whole. Id. The verdict will not be disturbed if it can be sustained on any reasonable theory. Blatz v. Allina Health Sys., 622 N.W.2d 376, 383 (Minn. App. 2001).
The "innkeeper's duty" requires a bar to take reasonable care to protect its patrons from other dangerous or violent patrons. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986) [hereinafter Alholm III]. Whether this duty exists is a question of law. Id. at 490 n.5. The bar is not liable unless an injury is foreseeable as a result of acts or threats that give notice to the bar of a patron's potential for violence.2 Boone v. Martinez, 567 N.W.2d 508, 510 (Minn. 1997). When bar employees have notice of potential violent action, that notice is imputed to the bar. See Priewe v. Bartz, 249 Minn. 488, 491-92, 83 N.W.2d 116, 119-20 (1957) ().
Notice may be based on a patron's violent or aggressive behavior prior to the infliction of an injury. See id. at 490-93, 83 N.W.2d at 118-20 (); Windorski v. Doyle, 219 Minn. 402, 404-06, 18 N.W.2d 142, 144-45 (same) (1945). Obvious intoxication will signal a heightened likelihood of such behavior. Priewe, 249 Minn. at 492-93, 83 N.W.2d at 120; Alholm v. Wilt, 348 N.W.2d 106, 109 (Minn. App. 1984), review denied (Minn. Sept. 12, 1984) [hereinafter Alholm I]. Notice also may be based on a history of prior violence at the bar. Alholm III, 394 N.W.2d at 489 (). This history may be shown in part by reputation evidence. Quinn v. Winkel's, Inc., 279 N.W.2d 65, 68 (Minn. 1979); Mettling v. Mulligan, 303 Minn. 8, 10-12, 225 N.W.2d 825, 827-28 (1975). When a violent patron has no previous history of violent or aggressive behavior on the premises, notice cannot be established. See Schwingler v. Doebel, 309 N.W.2d 760, 762 (Minn. 1981). Nor can notice be established from prior violent conduct when the bar could not reasonably have known about the conduct or anticipated further violence. Boone, 567 N.W.2d at 510-11.
When we examine the facts in the light most favorable to the verdict, we need not adopt either party's theory of the evidence. Rather, we draw all reasonable inferences from the evidence as a whole. There is ample evidence here to infer that, while Roy and Murphy were either on or near the premises, they were involved in a fight with Roy's assailant. The evidence also supports the inference that, when the bouncer warned Roy and Murphy against engaging in an altercation with the group that included Roy's assailant and detailed the violent tactics used by the group, the bouncer had previously observed their violent behavior. Taken together, these facts establish that Banana Joe's had...
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