Slawinski v. Mocettini

• Decision Date: 14 June 1963
• Citation: 217 Cal.App.2d 192,31 Cal.Rptr. 613
• Court: California Court of Appeals Court of Appeals
• Parties: Virginia SLAWINSKI, Stanley Slawinski and Paul John Slawinski, all heirs of Stanley Slawinski, deceased, Plaintiffs and Appellants, v. Robert MOCETTINI and Roby Mocettini, individually and doing business as Bob's Cafe, Defendants and Respondents. Civ. 20761.

Page 613

31 Cal.Rptr. 613

217 Cal.App.2d 192

Virginia SLAWINSKI, Stanley Slawinski and Paul John Slawinski, all heirs of Stanley Slawinski, deceased, Plaintiffs and Appellants, v. Robert MOCETTINI and Roby Mocettini, individually and doing business as Bob's Cafe, Defendants and Respondents.

Civ. 20761.

District Court of Appeal, First District, Division 2, California.

June 14, 1963.

Rehearing Denied July 2, 1963.

Hearing Denied Aug. 7, 1963.

Bergen Van Brunt, San Francisco, for appellants.

Lacey, Holbrook & Meyenberg, Salinas, for respondents.

KAUFMAN, Presiding Justice.

This is an action for wrongful death brought by the surviving widow and minor children of Stanley Slawinski, who died as a result of a gunshot wound inflicted by one Herbert L. Wilson ¹ in a tavern and restaurant owned by the respondents, Robert and Roby Mocettini. The complaint alleged that the respondents failed to properly supervise and control their premises so as to prevent the attack and for harboring Wilson.

A jury trial resulted in a verdict in favor of the appellants in the amount of $169,000. Thereafter, the trial court granted the respondents' motion for a new trial on grounds of insufficiency of the evidence and misconduct of the plaintiffs' attorney. This appeal is from the order granting the new trial.

The record veveals the following facts: for many years, the respondents operated their establishment known as Bob's Cafe on the east side of the old Highway 101 in Greenfield, California. Bob's Cafe consists of a bar with a separate card room at the front of the premises, with a completely partitioned kitchen and dining room area at the rear. On August 8, 1959, Slawinski came into Bob's Cafe about 11:00 a. m. and drank short beers most of the day. He ate lunch there and spent the afternoon drinking beer. Several eyewitnesses testified that Slawinski did not appear to be intoxicated but his blood alcohol content of .213 at the time of death indicated otherwise. Wilson, a regular patron of Bob's, came in for a beer about 11:00 a. m. and did not return until about 6:00 p. m. when he had another beer and sat at the opposite end of the bar from the deceased. Later, Wilson sat down next to Slawinski.

Throughout the afternoon and evening, there were between 12 and 20 patrons in Bob's Cafe, several of them feeling very good. There was conflicting evidence as to whether the amount of noise and confusion was more than normal for a Saturday afternoon and evening. However, it is uncontroverted that the conversations between the deceased and Wilson, who apparently had not met before, were normal and friendly. No one was aware of any altercation between Slawinski and Wilson until about 8:00 p. m. when, for some unknown reason, Slawinski backhanded Wilson off the bar stool and everyone heard the two men fall to the floor. They scuffled on the floor for about 20 seconds and were quickly separated by two other patrons, Jesse Robertson and Chester Norman. As soon as they had been separated, Wilson left without saying a word to anyone. There is conflicting testimony as to whether he looked angry and rushed out, or walked out in a normal manner. When Slawinski got up and sat down on his stool, the bartender, Nalley, asked him: 'Stanley, what do you think you are doing?' Slawinski indicated that Wilson had called him a dirty name and the bartender replied: 'I don't blame you for that, but if you're going to fight, get outside.' Slawinski said: 'O.K.' and sat down. Robert Mocettini, who had been working in the kitchen during the incident, came in and briefly spoke to the bartender and Slawinski. He 'figured everything was all over with' and returned to the kitchen.

About 30 minutes later, Wilson re-entered the bar with a gun in his hand and fired 5 or 6 shots at point blank range as he walked towards Slawinski. The police arrived about 15 minutes later and arrested Wilson, who was intoxicated. Slawinski died at 9:47 p. m.

In granting the motion for a new trial, the court specifically ruled that in its opinion, there was no probative evidence proving or tending to prove that the respondents should have known of the dangerous propensities of Wilson and that he would cause bodily harm to the decedent. Appellants here argue that the trial court abused its discretion in granting the motion for a new trial as there was ample evidence to sustain the verdict. We cannot agree. Appellants concede that as there is no cause of action for the negligent furnishing of intoxicating liquor (Cole v. Rush, 45 Cal.2d 345, 289 P.2d 450, 54 A.L.R.2d 1137) in this state, their complaint is based wholly on the failure of the respondents to properly control and police the premises and prevent Wilson from harming the decedent.

The rules of liability in cases of this sort are well settled. The proprietor of a place where intoxicating liquors are dispensed woes a duty of exercising reasonable care to protect his patrons from injury at the hands of fellow guests. Any guest of such a place has the right to assume that he is in an orderly house and that the proprietor or his employees will exercise reasonable care in maintaining appropriate decorum (Thomas v. Bruza, 151 Cal.App.2d 150, 311 P.2d 128). While the proprietor is under a duty to protect his patrons from injury, annoyance and mistreatment, he is not an insurer of their safety. His obligation is limited to the exercise of reasonable care and he is liable only when he is negligent in receiving or harboring guests of known violent or vicious propensities (Kingen v. Weyant, 148 Cal.App.2d...