White v. HA, Inc.

• Decision Date: 21 November 1989
• Docket Number: No. 88-294,88-294
• Citation: 782 P.2d 1125
• Parties: Don WHITE, Appellant (Plaintiff), v. HA, INC., d/b/a Giovale's Bar, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 1125

782 P.2d 1125

Don WHITE, Appellant (Plaintiff), v. HA, INC., d/b/a Giovale's Bar, Appellee (Defendant).

No. 88-294.

Supreme Court of Wyoming.

Nov. 21, 1989.

Roy A. Jacobson and Sharon M. Rose, of Vehar, Beppler, Jacobson, Lavery & Rose, P.C., Kemmerer, for appellant.

Richard H. Honaker and Michael D. Newman of Honaker & Hampton, Rock Springs, and Roger H. Bullock of Strong & Hanni, Salt Lake City, Utah, for appellee.

Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.

GOLDEN, Justice.

Don White sued HA Inc., dba Giovale's Bar (Giovale's), claiming it was responsible for injuries he received outside the bar on the night of October 19, 1984, when he was shot in the back while attempting to flee a fracas which arose between White and his assailant Hank Summers, both bar patrons. The district court granted summary judgment to Giovale's, finding it had no duty to protect White from harm. On appeal, White asks:

A. Whether or not the trial court erred in its finding that there were no genuine issues of fact and granting summary judgment in favor of appellee. More particularly, did the court err in finding:

1. That there was no altercation in the appellee's premises sufficient to put appellee on notice of danger to appellant;

2. That there was no relationship between the disturbance in the appellee's premises and the subsequent events which resulted in appellant's injuries;

3. That there was not sufficient opportunity for the appellee to take action to protect appellant.

B. Whether or not the trial court erred in holding that Mostert v. CBL & Assoc., 741 P.2d 1090 (Wyo.1987) was not applicable to the case at hand, and should only be given a limited application.

C. Whether or not the trial court erred in granting appellee's motion for summary judgment without giving consideration to appellant's cause of action based upon breach of the duty arising from the sale or furnishing of liquor.

Alternatively, Giovale's inquires:

1. Whether the trial court properly held that the fight which started outside was not reasonably foreseeable by Giovale's and there was no duty to protect Don White from the unexpected shooting.

2. Whether Don White failed to prove that a proximate cause of the shooting was any act or omission of Giovale's.

3. Whether Giovale's owed a duty to Don White to protect him from his own voluntary intoxication.

4. Whether punitive damages should be allowed.

5. Whether appellant's notice of appeal was timely.

We affirm. This decision renders unnecessary discussion of Giovale's fourth issue.

Don White began drinking at Giovale's Bar in the mid-afternoon of October 19, 1984, and continued to do so into the evening. Over the course of the afternoon and evening, White consumed six or seven mixed drinks and a pizza. In his deposition, White testified he "was getting a buzz on," but he was able to talk clearly, play pool and walk in a normal manner.

As the evening wore on, the bar became crowded with about forty to seventy bar patrons. One bartender was present and responsible for business activities in the bar, including serving patrons, selling alcohol through the drive-in, restocking the bar, removing trash, and cleaning the bar premises. Hank Summers walked into Giovale's carrying a bottle of beer; he was acting very angry and looking for a man who he said owed him money. Giovale's did not serve any alcohol to Summers the short time he was in the bar. After entering the bar, Summers approached White's friend, Steve DePaola, and without provocation, hit him in the back of the head, knocking him down. At this time Summers did not speak to or take any action toward White, and White did not speak to Summers or take any action toward him. During this assault, Giovale's bartender was taking out the garbage and did not see what happened. When she returned to the patron area, several bar patrons told her what happened, but she noted "everyone was quiet," and "nobody was yelling, screaming, everybody had calmed down * * *."

Shortly after hitting DePaola, Summers left the bar through a side entrance. White and DePaola waited in the bar for several minutes and then left through the front door. In his deposition, White stated it was his intention to walk to DePaola's house to smoke some marijuana, but that he delayed leaving the bar so they would avoid Summers. White stated that he thought the fighting was over, but upon walking out the door DePaola headed for the parking lot to look for Summers, and White followed. Summers was not there, so they started to leave. While crossing the street DePaola saw Summers nearby, standing behind his car with the trunk lid open. DePaola started for Summers and White followed, reaching him first. White approached Summers and exchanged a few words which resulted in an exchange of several punches. The punching ended when the two fell to the ground. Believing the fight was over, White started to get up. As he was doing so he noticed Summers had a gun. White jumped up and ran; Summers shot him in the back.

White filed a complaint against Giovale's on February 24, 1986, alleging two counts: (1) Giovale's failure to exercise reasonable care to provide safe premises for its customers; and (2) Giovale's negligent sale or furnishing of liquor to an intoxicated person, White. ¹ On July 25, 1988, Giovale's filed a motion for summary judgment. In its September 12, 1988 decision letter, the trial court granted Giovale's motion, finding in pertinent part:

In the present case, the only disturbance which occurred in the bar was not between White and Summers so the defendant [Giovale's] had no reason to give White any protection, nor was there any relationship between the disturbance in the bar between Summers and DePaola and the disturbance outside the bar between Summers and Richmond [murdered by Summers that night] that would put the defendant on notice. It all happened so fast that no one could have averted the result. Calling the police would have been a waste of time, even if the defendant could have anticipated what was going to happen. I find nothing in this record which showed "a relationship between the particular disturbance which was relied upon as warning defendant of the impendence of danger to his invitees and the subsequent violence which caused plaintiff's injury."

This appeal followed. ²

In this case, we are asked to extend the established scope of tavern keeper liability to encompass injuries received by a bar patron off bar premises resulting from another bar patron's criminal acts. Earlier cases have suggested liability will lie in two instances: (1) when a tavern keeper serves intoxicating liquor to a minor or a person obviously intoxicated who later injures a third party either on or off the tavern premises, McClellan v. Tottenhoff, 666 P.2d 408 (Wyo.1983) ³; and (2) when a third party is injured in the tavern by other patrons of the tavern who have exhibited behavior such as to alert the tavern keeper that danger or injury to the third party is imminent, Mayflower Restaurant Company v. Griego, 741 P.2d 1106 (Wyo.1987). In each of these cases, liability attached because of the tavern keeper's breach of some responsibility owed to the public, the collective third party. See McClellan, 666 P.2d at 413 (discussing the legislative establishment of a duty owed to the general public through the enactment of W.S. 12-5-301(a)(v) and 12-6-101(a)). White's action against Giovale's cannot be squeezed into either of the two pigeonholes suggested by McClellan and Mayflower, and we decline the invitation to peck out yet another to accommodate this fact situation, for to do so would make all of us our brothers' keepers, a result the law of Wyoming does not support.

As a preliminary procedural matter, we disagree with Giovale's contention that White's notice of appeal was untimely filed; we agree with White's correct statement that pursuant to W.R.C.P. 54(b), the summary judgment order in this case could "only be deemed final upon an express determination that there was no just cause for delay." Only when the determination was made that there was no just cause for delay did the time for the filing of an appeal begin to run. See Olmstead v. Cattle, Inc., 541 P.2d 49 (Wyo.1975). The 54(b) certification was entered in the form of a nunc pro tunc order on September 29, 1988. White filed his notice of appeal on October 6, 1988, well within the fifteen day time limit. Giovale's argues that as a nunc pro tunc order, the time for appeal began to run from the date of the original summary judgment, September 20, 1988, in that nunc pro tunc orders relate back to the date of the original order. That the order was entitled "Nunc Pro Tunc," does not alter our determination that the time for appeal began to run only upon its entry. The thrust of the order was a 54(b) certification that there was no just cause for delay. To dismiss this appeal based on the title of the order would be to assert form over substance. We find that White's notice of appeal was timely filed.

We analyze the substance of this appeal by noting our well-established standard of review for summary judgments which need not be reiterated. Roybal v. Bell, 778 P.2d 108, 110-11 (Wyo.1989); Case v. Goss, 776 P.2d 188, 190 (Wyo.1989); Johnston v. Conoco, Inc., 758 P.2d 566, 568 (Wyo.1988). See also W.R.C.P. 56.

As in all tort actions, negligence consists of a breach of a duty owed by the defendant that proximately causes injury to the plaintiff. McClellan, 666 P.2d at 411 (citing ABC Builders, Inc. v. Phillips, 632 P.2d 925 (Wyo.1981)). Whether a duty exists is a question of law for the court to decide. McClellan, 666 P.2d at 411. This court has held a liquor vendor is bound to exercise the degree of care required of a reasonable person in light of the circumstances. Id. at 412.

The paradigmatic Wyoming case addressing tavern keeper liability is Fisher v. Robbins, 78 Wyo. 50, 319 P.2d 116 (1957)....