Troxel v. Iguana Cantina Llc

• Decision Date: 03 October 2011
• Docket Number: No. 820,2010.,Sept. Term,820
• Citation: 201 Md.App. 476,29 A.3d 1038
• Parties: James E. TROXEL, 3Dv.IGUANA CANTINA, LLC, et al.
• Court: Court of Special Appeals of Maryland

201 Md.App. 476
29 A.3d 1038

James E. TROXEL, 3D
v.
IGUANA CANTINA, LLC, et al.

No. 820

Sept. Term

2010.

Court of Special Appeals of Maryland.

Oct. 3, 2011.

[29 A.3d 1042]

Charles M. Kerr (Kerr McDonald, LLP, on the brief) Baltimore, MD, for appellant.James R. Andersen (Rollins, Smalkin, Richards & Mackie LLC, on the brief) Baltimore, MD, for appellee.Panel: EYLER, JAMES R., KEHOE and CRYSTAL DIXON MITTELSTAEDT (Specially Assigned), JJ.KEHOE, J.

[201 Md.App. 483] This case arises out of a claim filed by appellant, James E. Troxel, in the Circuit Court for Baltimore City in which he sought damages for injuries he allegedly received on the dance floor of a nightclub called Iguana Cantina located near the Inner Harbor in Baltimore City. Troxel sued the following defendants: (1) Iguana Cantina, LLC, the entity that operated the club, (2) Timothy S. Bennett, the club's manager, (3) Lockwood Associates, LLC, the club's landlord, (4) Parkway Corporation, the managing entity for Lockwood Associates, and (5) the senior principals of Parkway Corporation: Joseph S. Zuritsky (Chairman and Chief Executive Officer), Robert A. Zuritsky (President and Chief Operating Officer) and Richard Elsworth (General Manager). The circuit court granted summary judgment in favor of the defendants. Troxel filed this appeal, presenting the following questions, which we have reordered and reworded below:

1. Did the trial court err in granting appellees' summary judgment motion on the ground that Troxel's cause of action sought damages against the appellees on a theory of “dram shop” liability?

2. Did the trial court err in granting appellees' summary judgment motion on the ground that Troxel failed to present any evidence to sustain a negligence claim?

We conclude that the trial court erred in granting appellees' motion for summary judgment. Appellant's cause of action exists independently of a claim for dram shop liability and the evidence of negligence is sufficient to survive a motion for summary judgment. We reverse and remand to the circuit court for proceedings consistent with this opinion.

Factual and Procedural Background A. The Complaint

Troxel alleges that appellees maintained “extremely dangerous conditions at Defendant Iguana's premises which put patrons of Defendant Iguana at risk of physical harm.” Troxel further asserts that “Plaintiff would not have suffered the [201 Md.App. 484] beating he experienced on September 25–26, 2008” if it were not for “Defendant Iguana's failure to provide security for protection of its customers and its failure to use reasonable efforts to control its patrons....” Troxel concludes that “Defendants breached the duty of care that they owed to patrons of Defendant Iguana, and that breach of duty by the Defendant is a substantial and proximate cause of the injuries and damages

[29 A.3d 1043]

that Plaintiff suffered at the Iguana Cantina in the early morning of September 26, 2008.”B. The Incident at Iguana Cantina on the Morning of September 26, 2008

The physical altercation that gave rise to this lawsuit occurred on the morning of September 26, 2008 at Iguana Cantina. At the time, the club was owned and operated by Iguana Cantina, LLC and under a lease with Lockwood Associates, LLC. Timothy S. Bennett was the general manager of the nightclub.

Every Thursday night, including the night of this altercation, Iguana Cantina hosted a “college night” promotion that permitted adults between the ages of 18 and 21 to attend the nightclub. Troxel, 20 years old at the time, attended that evening, arriving at approximately 10:00 pm on September 25, 2008. At approximately 12:30 am on the following morning, he was involved in an altercation with several unidentified males on the dance floor. Troxel has no recollection of the incident, but he alleges, based on deposition testimony from other patrons at the bar, that three or more young males punched and beat him to the floor and continued kicking him into unconsciousness. When Iguana Cantina security personnel saw Troxel's body on the floor, they carried him out of the club.

Appellees present a different version of the altercation. Appellees assert that the physical altercation started because “Troxel, intoxicated and apparently unprovoked, pushed a woman named Marie Zoscak to the ground in the area of the dance floor.” Appellees contend that Troxel was only punched once or twice and kicked several times while on the ground. [201 Md.App. 485] The altercation, according to appellees, lasted no more than a minute.

In either scenario, it is undisputed that Baltimore City police stationed outside Iguana Cantina soon came to Troxel's aid and called for an emergency medical team. Troxel was initially treated at Harbor Hospital but was soon transferred to the University of Maryland Shock Trauma Center. Troxel alleges that, as a result of the beating, he suffers from permanent physical and neurological injuries.

C. Iguana Cantina's “College Night” Promotion and its Relation to Violence

In order to establish a potential duty on behalf of Iguana Cantina to protect him against violence, Troxel scrutinizes the “college nights” that were hosted by Iguana Cantina. On these “college nights,” which were first held at least as early as May 2005, patrons were charged a flat fee of $12 to enter the club. Anyone 21 years of age or older was given a red cup and a wrist band, and anyone under 21 years of age was given a clear cup. The flat fee gave those patrons with red cups and wrist bands access to alcoholic beverages and unlimited refills from the bar. Patrons with clear cups were entitled to unlimited nonalcoholic drinks.

Before the night of September 25, 2008, Iguana Cantina had a history of violent incidents occurring within its premises. According to records from the Baltimore Police Department, in 2006, there were reports of eight aggravated assaults, one robbery and one potential rape, all of which occurred within the premises of Iguana Cantina. In 2007, Iguana Cantina saw a sharp decline in reports of violent incidents within its premises (only two incidents were reported). This decrease in reported violence corresponded with a promise made by David Adams—a representative of Iguana Cantina who described his duties as training the security staff and coordinating with the police department on

[29 A.3d 1044]

security measures—to the Board of Liquor License Commissioners for Baltimore City (the “Baltimore City Liquor Board”) that it would no longer hold “college night” promotions as of August 17, 2006 (described [201 Md.App. 486] infra ). Iguana Cantina did indeed suspend its “college night” promotions for a period of time following August 17, 2006. This hiatus was brief, however, and Iguana Cantina resumed the “college night” promotions by the end of 2007. Around the same time, instances of reported violence at Iguana Cantina increased. During the twelve months preceding the beating of Troxel in September 2008, police reports documented four aggravated assaults, one robbery, one assault on a police officer, and one incident where a police officer was required to use his taser to subdue a suspect. Again, all of these incidents occurred within the premises of Iguana Cantina.

In addition to police reports, Troxel introduced evidence of violence at Iguana Cantina through affidavits and deposition testimony. Zachary Belcher, a former Iguana Cantina security guard who worked at the nightclub from March 2005 through June 2008, said in his affidavit that in his experience as a security guard at Iguana Cantina:

More incidents of violence occurred ... on college nights because of the large crowds and the larger [numbers] of underage patrons who were present and who were obtaining alcoholic beverages while in Iguana. The result was more intoxicated young people who started fights and got ejected, and it was common knowledge among the security guards and Iguana's management that there was more violence in Iguana on college nights. My own experience was that on college nights there was never less than one fight per night, and I experienced up to five fights per night on college nights.

According to Belcher, Timothy Bennet, the club's manager, arranged for the marketing of Iguana Cantina's 18–and–older “college night” promotions on local Baltimore-area college and university campuses. Belcher stated that, during those college-night promotions:

[A] lot of underage patrons were ... able to obtain alcoholic beverages inside Iguana. Underage patrons got wrist bands from 21–year old and older patrons as they left the club. They would also steal wrist bands by slipping them [201 Md.App. 487] off the arms of older patrons in the darkness and confusion of the crowds. Some underage patrons simply drank alcohol out of older friend's cups or poured alcoholic beverages from the older patron's red cup into their clear cups. It was common knowledge among my fellow employees and Iguana Cantina's management that underage drinking was occurring on college nights.

Similarly, Iguana Cantina security guard Charles E. Shannon, Jr. testified at his deposition that there were probably more fights that occurred on a “college night” than any other weekend night because of the younger people drinking. Another bar employee, Joshua W. Jones, testified at his deposition that he would normally see one fight per night at Iguana Cantina.

D. Iguana Cantina's History with the Baltimore City Liquor Board

From time to time Iguana Cantina was cited for violations of Maryland's state liquor law. Troxel alleges that these violations are significant because they underscore the relationship between violence at Iguana Cantina and the occurrence of the club's “college nights.” For example, on August 25, 2005, the Baltimore City Liquor Board heard charges brought against Iguana Cantina's liquor licensees accusing

[29 A.3d 1045]

Iguana Cantina of allowing customers under 21 years of age to consume or possess alcoholic beverages on...