Schneider v. Nectarine Ballroom, Inc.

• Decision Date: 23 February 1994
• Docket Number: No. 138330,138330
• Citation: 514 N.W.2d 486,204 Mich.App. 1
• Parties: Charles SCHNEIDER, Plaintiff-Appellant, v. NECTARINE BALLROOM, INC., Defendant-Appellee. (On Remand)
• Court: Court of Appeal of Michigan — District of US

Page 486

514 N.W.2d 486

204 Mich.App. 1

Charles SCHNEIDER, Plaintiff-Appellant, v. NECTARINE BALLROOM, INC., Defendant-Appellee. (On Remand)

No. 138330.

Court of Appeals of Michigan.

Submitted Oct. 14, 1993, at Lansing.

Decided Feb. 23, 1994, at 9:00 a.m.

Released for Publication April 27, 1994.

Green & Green by Christine A. Green, Ann Arbor, for plaintiff.

Miller & Tupper by Todd J. Miller, Southfield, for defendant.

Before McDONALD, P.J., and GRIBBS and JOHNSTON, ^* JJ.

ON REMAND

PER CURIAM.

Plaintiff appeals from a February 14, 1990, order granting a motion for summary disposition by Nectarine Ballroom, Inc. (hereafter defendant), with regard to count II of plaintiff's complaint, alleging defendant negligently ejected plaintiff from its premises. This Court initially denied plaintiff's application for leave to appeal, but our Supreme Court has remanded the matter to this Court for consideration as on leave granted. Schneider v. Berry, 437 Mich. 919, 465 N.W.2d 678 (1991). We reverse.

Plaintiff commenced this action against the defendant and three individuals, seeking damages from defendant for injuries he sustained during an altercation with the individual defendants. The individual defendants were dismissed from the action pursuant to the parties' stipulation. The altercation occurred both on and off defendant's business premises. Count I of plaintiff's complaint addresses plaintiff's claim for injuries sustained inside the bar, while count II contains plaintiff's claim for injuries sustained after defendant's security personnel ejected both plaintiff and his alleged assailants from the bar.

Defendant moved for partial summary disposition pursuant to MCR 2.116(C)(8) and (10) claiming it owed no duty to plaintiff for incidents occurring off its business premises. At the hearing for the motion, plaintiff's attorney argued the breach of the duty occurred on the premises when plaintiff was negligently ejected from the bar into the waiting arms of the assailants and that the off-premises location, the sidewalk in front of the bar, was merely the situs of the injuries.

Plaintiff's deposition indicates the altercation inside the bar erupted after two men began harassing his friend when she left the table to go to the rest room. When his friend returned to the table, plaintiff moved her to his side and told her to ignore the men. As plaintiff told one of the men to relax and drop the matter, he was hit in the eye. A fight ensued. Plaintiff, allegedly weak and ready to pass out, was escorted to the door. Plaintiff was allowed to sit in the vestibule area while the bouncer left to help eject other participants in the fight. After three other men were ejected, plaintiff was allegedly told to leave and pushed out the door. As soon as plaintiff was out the door, one of the three men previously ejected put his arm around plaintiff's neck and held him in a headlock. An eyewitness to the assault confirmed in part plaintiff's version, reporting to the police that a male was dragged toward a curb and beaten by two men.

The trial court granted defendant's motion for summary disposition, finding defendant owed plaintiff no duty with regard to any injuries sustained off the premises. Plaintiff appeals, arguing the court erred in focusing solely on the situs of the injury when determining defendant owed plaintiff no duty. We agree.

A prima facie case of negligence requires proof of four elements: (1) a duty owed to the plaintiff by the defendant; (2) a breach of that duty; (3) causation; and (4) damages. Moning v. Alfono, 400 Mich. 425, 254 N.W.2d 759 (1977). At issue in this case is the trial court's finding defendant bar owed plaintiff no duty. The question whether a duty exists is one of law for the court's resolution. In a negligence action, summary disposition is properly granted pursuant to MCR 2.116(C)(8) if it is determined as a matter of law the defendant owed no duty to the plaintiff. The duty owed by a bar to its customers was set forth in Gorby v. Yeomans, 4 Mich.App. 339, 343, 144 N.W.2d 837 (1966), where a panel of this Court adopted the following rules of liability:

The duty of a tavern keeper to protect a patron from injury by another arises only when one or more of the following circumstances exists: (1) a tavern keeper allowed a person on the premises who has a known propensity for fighting; (2) the tavern keeper allowed a person to remain on the premises whose conduct had become obstreperous and aggressive to such a degree the tavern keeper knew or ought to have known he endangered others; (3) the tavern keeper had been warned of danger from an obstreperous patron and failed to take suitable measures for the protection of others; (4) the tavern keeper failed to stop a fight as soon as possible after it started; (5) the tavern keeper failed to provide a staff adequate to police the premises; and (6) the tavern keeper tolerated disorderly conditions.

Plaintiff's complaint clearly alleges defendant, having been warned of the danger posed by his assailants, not only failed to take suitable measures to protect him, but in fact increased the risk of harm by actively ejecting him into the danger. Plaintiff's complaint therefore appears to set forth an unassailable duty and an alleged breach thereof by defendant. However, because the injuries suffered by defendant were apparently inflicted on the sidewalk in front of defendant bar, rather than on defendant's premises, the trial court, relying on Locklear v. Stinson, 161 Mich.App. 713, 411 N.W.2d 834 (1987), found defendant owed plaintiff no duty and therefore was not liable for plaintiff's injuries.

In Locklear, the plaintiff's decedent was involved in an altercation in and around the defendant bar. The plaintiff filed a complaint alleging that although the defendant bar ejected Stinson, the decedent's assailant, from the bar, its employees allowed Stinson to remain in the parking lot. When the decedent left the bar, the altercation continued. Ultimately, the decedent fled in his vehicle with Stinson pursuing him in his own vehicle. After a collision with a third party, the confrontation continued and the...