Thrasher v. Leggett

• Decision Date: 20 December 1978
• Docket Number: No. 6737,6737
• Citation: 365 So.2d 1149
• Parties: Jimmy THRASHER, Plaintiff-Appellee, v. Johnny LEGGETT, d/b/a Johnny Leggett's Cajun Country, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 1149

365 So.2d 1149

Jimmy THRASHER, Plaintiff-Appellee, v. Johnny LEGGETT, d/b/a Johnny Leggett's Cajun Country Defendant-Appellant.

No. 6737.

Court of Appeal of Louisiana, Third Circuit.

Dec. 20, 1978.

Writ Granted Feb. 9, 1979.

Michael F. Kelly, Marksville, for defendant-appellant.

Riddle & Bennett, John T. Bennett, Marksville, for plaintiff-appellee.

Before CULPEPPER, FORET and CUTRER, JJ.

CUTRER, Judge.

This is a suit for damages by Jimmy Thrasher for injuries received when he was removed from a bar owned and operated by defendant, Johnny Leggett. From a judgment in favor of plaintiff, defendant appeals.

We reverse.

There is little dispute in the facts of this case. The evidence reflects that on July 8, 1977, plaintiff, after drinking beer most of the day, had entered defendant's bar known as Johnny Leggett's Cajun Country, in the early evening around 7:00 P.M. Plaintiff had some drinks and began arguing and cursing his estranged wife who was present with a friend. After a short time plaintiff was told to leave by Dale Perkins, a bouncer for defendant. Plaintiff left and went to other bars and returned to the Cajun Country later in the night and continued drinking. Plaintiff became highly intoxicated and again he started loudly cursing and threatening his estranged wife. The bouncer again warned plaintiff to quieten down or he would have to leave. Plaintiff persisted in his abusive and provocative activities. The bouncer, Dale Perkins, then escorted plaintiff out the door of the establishment. Outside the door is a 4-foot wide platform with 3 steps leading to the ground. Perkins escorted plaintiff down the steps and told plaintiff to leave. The plaintiff followed Perkins back up the steps cursing and telling Perkins that no one was going to keep him out of the bar. Plaintiff grabbed the door handle and so did Perkins. The plaintiff then struck at Perkins. Perkins threw up his arm to block the blow. Plaintiff, as a result of this encounter, fell down the steps, injuring himself. After plaintiff fell, Perkins, along with another employee of defendant, assisted plaintiff by sitting him on the steps. Another patron of the club took plaintiff to his home a short time later. The medical evidence reveals that plaintiff sustained a broken ankle in the fall.

Plaintiff filed suit against Johnny Leggett d/b/a Johnny Leggett's Cajun Country. The trial court rendered judgment in favor of the plaintiff and against defendant on the ground that:

"Whether he fell because he attempted aggressive action, or because he lost his balance, does not seem material to the court, because he was in a helpless and irrational state of intoxication. Defendant had the last clear chance to see that Plaintiff would not injure himself. If defendant was unwilling to escort him to a place of safety, the sheriff's department could have been called, or the City Police, could have come for him and incarcerated him in a place of safety."

The trial court applied the "last clear chance" principles enunciated in the case of Pence v. Ketchum, 326 So.2d 831 (La.1976). Defendant appeals assigning five specifications of error as follows:

1. The District Court erred in concluding that Thrasher became intoxicated on his first visit to Cajun Country.

2. The District Court erred in concluding that Thrasher returned to Cajun Country after he left the first time only a half hour to one hour later.

3. The District Court erred in concluding that it was negligence for defendant's employees to remove Thrasher from the night club.

4. The District Court erred in concluding that the defendant had the last clear chance to avoid plaintiff's accident.

5. The District Court erred in failing to apply the aggressor doctrine.

ERRORS NOS. 1 AND 2

The first two assignments of error present questions of fact. The trial judge concluded that plaintiff became highly intoxicated as a result of his drinking at defendant's establishment. It was also concluded that plaintiff was gone from the bar, after leaving the first time, for a period of one-half to one hour. We have reviewed the testimony of the various witnesses and find that the trial judge's findings in this regard are amply supported by the record. These findings will not be disturbed by this court absent a showing of manifest error. Canter v. Koehring, 283 So.2d 716 (La.1973).

ERRORS NOS. 3, 4 AND 5

We have no dispute with the trial judge in his conclusion of fact, but we disagree that the doctrine of "last clear chance" is applicable to the facts herein.

In the Pence case plaintiff brought suit against the owners of a bar and the driver of a vehicle for the recovery of damages sustained by the plaintiff when she was struck by the motorist after plaintiff had been removed from the bar in an intoxicated condition. The allegations of plaintiff's petition reflected that plaintiff had been allowed to consume an excessive amount of alcohol while in the bar and that the owners of the bar had knowledge of, or should have known of, her intoxicated condition but still ejected plaintiff, allowing her to attempt the crossing of a highway adjacent to the bar where she was struck and injured. The owners of the bar filed an exception of no cause of action which was sustained by the trial court. The judgment of the trial court was affirmed on appeal ¹ with that court relying on a ruling in the case of Lee v. Peerless Insurance Company, 248 La. 982, 183 So.2d 328 (1966).

The Supreme Court reversed and held that the petition stated a cause of action in that the petition alleged that the bar owners had violated their statutory duty imposed by LSA-R.S. 26:88 which reads as follows:

"No person holding a retail dealer's permit and no agent, associate, employee, representative, or servant of any such person shall do or permit any of the following acts to be done on or about the licensed premises:

"(2) Sell or serve alcoholic beverages to any intoxicated person."

The court concluded that if a bar owner violates this statute he has a duty as a business invitor to avoid affirmative acts which would increase the danger of an intoxicated person. Secondly, the court also concluded that, under the facts alleged, the...