Thompson v. Hodge

• Decision Date: 03 April 1991
• Docket Number: No. 22202-CA,22202-CA
• Citation: 577 So.2d 1172
• Parties: Douglas Ray THOMPSON, Appellant, v. Tom HODGE, West Monroe Lodge # 1723, Loyal Order of Moose, and Firemans Fund Insurance Company, Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 1172

577 So.2d 1172

Douglas Ray THOMPSON, Appellant, v. Tom HODGE, West Monroe Lodge # 1723, Loyal Order of Moose, and Firemans Fund Insurance Company, Appellee.

No. 22202-CA.

Court of Appeal of Louisiana,

Second Circuit.

April 3, 1991.

Arbour & Aycock by Geary S. Aycock, West Monroe, for Douglas Ray Thompson.

Marshall Blackwell, Monroe, for Tom Hodge.

Theus, Grisham, Davis & Leigh by Sharon W. Ingram, Monroe, for Moose Lodge and Firemans Fund Ins.

Before NORRIS, LINDSAY and BROWN, JJ.

NORRIS, Judge.

Plaintiff, Douglas Ray Thompson, sued defendants, Tom Hodge, West Monroe Lodge # 1723, Loyal Order of Moose, Inc. (the Lodge) and its insurer, Fireman's Fund Insurance Company (FF), for damages sustained in a fist fight with Hodge at the Lodge. West Monroe City Court rendered judgment of $10,000, its jurisdictional limit, against Hodge but absolved the Lodge and FF from liability. Thompson appeals the portion of the judgment denying recovery against the Lodge and FF. The Lodge and FF answer the appeal. If the judgment is amended, they request indemnity/contribution from Hodge and Thompson and assert that the award was excessive. We reverse the judgment insofar as it absolves the Lodge and FF and render.

The incident occurred on October 28, 1988 at a Halloween dance sponsored by the Lodge and held in its ballroom facility. The dance was a BYOB affair, but the Lodge provided set-ups and beer. Lodge governor, J.W. Burke, was its highest ranking officer. Patrick Quirk, sgt.-at-arms, had the duty of keeping order at Lodge functions and removing anyone who caused a disturbance. Burke testified that both he and Quirk were present at the dance; they along with other officers of the Lodge were the authorized supervisors of the dance. No security guard was hired. Other Lodge officers present included Bo Howard and I.B. Crawford who "ran the door," and Floyd Newsom and Prentice Hendrix who operated the bars.

Thompson arrived at the party around 11:15 p.m. On entering, he walked over to a table where his estranged wife, Vickie, was sitting with a group of people; at the table was Hodge, who had been at the dance for about two hours.

Thompson then went to one of the bars to fix a drink, his first of the night. Hodge, on the other hand, admitted drinking approximately five beers before the altercation began. Hodge walked up to Thompson at the bar, said he wanted to talk and asked him to step into the foyer because of the loud noise in the ballroom.

When the two were in the foyer, Hodge told Thompson to stop spreading the rumor that Hodge was dating married women. He named a friend of Vickie's and was concerned about the rumors reaching the friend's husband. Thompson told Hodge that he could say whatever he wanted to say. Hodge claims Thompson shoved him at this point; Thompson claims he just turned to leave. Either way, Hodge, who was much larger than Thompson, suddenly struck Thompson on the left temple with his fist. The blow propelled Thompson's glasses off his head and across the foyer floor. Thompson then wrestled Hodge to the floor where they continued to fight and strike each other.

Burke and other Lodge members who saw the altercation intervened and broke up the fight. After pulling the two apart, Burke and three others took Hodge outside. Hodge was still furious, his nose was bleeding and he wanted to "finish" the fight. Burke left Hodge outside and returned to the foyer with Thompson. Hodge yelled at Thompson challenging him to finish the fight for two or three minutes.

Thompson was also bleeding so Burke took him into the restroom to clean him up. Burke was unsure as to where the blood was coming from, stating at trial that it must have been coming from Thompson's "nose or his mouth or somewhere." Tr. 77. Thompson, however, testified that he was scratched but was not bleeding from his nose. Tr. 34.

Hodge claimed that after about five minutes outside, he had cooled down and was capable of returning to the dance. The group outside made no attempt to bar his return. This group consisted of a Lodge member, Truett Bailey, Tom's brother, Bob, and a nonmember, Wayne Bailey. Truett testified he had no authority to stop Hodge from reentering the dance and admitted to having several drinks. Bob testified that both he and his brother were greatly agitated and wanted to finish the fight. In fact, Bob's testimony strongly indicates that Tom was still greatly agitated and inclined to violence against Thompson upon reentry. Bob testified that he thought it would calm Tom more to go inside; he also admitted his first intent was to take Tom into the Lodge by the back way because "everybody" was standing in the foyer.

Burke was standing in the foyer, his back to the door, talking to Thompson when Hodge reentered. The entourage passed right in front of Thompson who was in the path to the ballroom. Although Hodge testified that Thompson stepped toward him, no one else saw Thompson make a move and the evidence is overwhelming that Hodge, obviously still inflamed and intent on fighting, saw an opening, seized the opportunity and delivered a hard blow to Thompson's nose. Hodge testified he tried to take Thompson out with this one strike. Tr. 103. It was the only blow of the second altercation and, according to Thompson, the only blow to his nose which began bleeding profusely at this point.

Afterwards, Thompson was taken to the hospital for treatment and Hodge was allowed to return to the dance. Thompson's injuries included bruises to the temple area, several scratches, and a broken nose. Expert testimony showed that the blow caused a deviated septum in Thompson's nose and would require surgery to open the air passage on the left side.

After the first altercation, no Lodge official either called the police or asked Hodge or Thompson to leave the premises. Hodge testified that if he had been asked to leave, he would have left. Officer Tom Willis testified that the police could have reached the scene within two to three minutes. The dance hostess asked Burke after the first altercation if he wanted her to call the police. He answered, "No, everything was all right." Tr. 75. Police learned of the incident from a lady whose vehicle was stopped for a traffic violation as she was leaving the dance. The lady told the officer she was in the process of getting away from the fight at the Moose Lodge.

The court in oral reasons found that Hodge was the aggressor and the entire incident would not have occurred had he not tried to get the rumor situation straightened out in an atmosphere the court described as the "moral equivalent of a barroom." Tr. 122. The court also concluded that since both parties were members of the Lodge, they could not be classified as invitees. It therefore found that neither the Lodge nor its agents owed any duty to any party which was breached although it commented that had Thompson been an invitee, its result might have been different. The court rendered judgment in favor of Thompson and against Hodge for its jurisdictional limit of $10,000, representing medical expenses and lost wages of $707.12, future medical and future lost wages of $5,258.40, and pain and suffering of $4,035. Judgment was signed March 20, 1990 for damages, legal interest and costs in favor of Thompson and against defendant Hodge. The Lodge and FF were absolved from liability. Thompson assigns as error the trial court's finding of no duty and no breach on the part of the Lodge and seeks to have both the Lodge and FF adjudicated liable for all damages awarded in the judgment.

DUTY

As noted, the trial court found that as a Lodge member, Thompson was not an invitee and thus was owed no duty of protection which was breached. We conclude the trial court erred in concluding that Thompson was owed a lesser duty than that of ordinary care under the circumstances of this case. The trespasser-licensee-invitee classifications have been abandoned in favor of a traditional negligence analysis. Cates v. Beauregard Elec. Coop., Inc., 328 So.2d 367 (La.), cert. denied 429 U.S. 833, 97 S.Ct. 97, 50 L.Ed.2d 98 (1976); Alexander v. General Accident Fire & Life Assur. Corp., 98 So.2d 730 (La.App. 1st Cir.1957), writ denied, not reported, (1958). The duty of ordinary care is owed to social guests who are invited to the premises. Alexander, supra. West Virginia courts hold that members of a Moose Lodge who go to the lodge premises for drinks are owed a duty of reasonable care. Hovermale v. Berkeley Springs Moose Lodge No. 1483, 165 W.Va. 689, 271 S.E.2d 335 (1980). Louisiana courts have stated that members of health clubs as well as customers of bars are owed a duty of reasonable care to protect them from injury while on the premises. Howery v. Linton, 454 So.2d 1283 (La.App. 2d Cir.1984); Gatti v. World Wide Health Studios of Lake Charles, Inc., 323 So.2d 819 (La.App. 2d Cir.1975); Sevin v. Shape Spa for Health and Beauty, Inc., 384 So.2d 1011 (La.App. 4th Cir.1980).

Moreover, a duty of protection which is voluntarily assumed must be performed with due care. Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364 (La.1984). Burke testified that the Lodge determined prior to this dance that Lodge officials, including himself, the sgt.-at-arms, trustees and other board members would provide supervision and a reasonably safe premises for the dance. Thus, the Lodge voluntarily assumed the same duty the law imposes.

We conclude that the Lodge owes its members and guests in attendance at a Lodge sponsored dance the duty of reasonable care to protect them from injury. This duty does not extend to unforeseeable or unanticipated independent, intentional tortious or criminal acts of a third person. However, the duty arises when the Lodge officials charged with supervising the affair have or should have knowledge of a third person's intended injurious conduct that is about to occur and his apparent ability to execute that conduct and it is within the...