White v. Ha, Inc. , 1989 Wyo. LEXIS 225 ( 1989 )

URBIGKIT, Justice,

dissenting.

I dissent for the reason first offered in O’Donnell v. City of Casper, 696 P.2d 1278 (Wyo.1985) and most recently stated in Baros v. Wells, 780 P.2d 341 (Wyo.1989), Ur-bigkit, J., dissenting. We again fail to give to the party appealing an adverse summary judgment the benefit of all favorable inferences which can be drawn from the record.¹ The majority again weighs the evidence to affirm summary judgment. In summary judgment review, we should confine the review to considering whether an issue of negligence is presented by the evidence and any fair inferences to be derived from that evidence. Stephenson v. Pacific Power & Light Co., 779 P.2d 1169 (Wyo.1989); Baldwin v. Dube, 751 P.2d 388 (Wyo.1988); Davenport v. Epperly, 744 P.2d 1110 (Wyo.1987); Greenwood v. Wierdsma, 741 P.2d 1079 (Wyo.1987). The majority weighs the evidence when it presents an uncompleted analysis of the first prong under the Fisher v. Robbins, 78 Wyo. 50, 319 P.2d 116 (1957) test. A completed analysis would explore all inferences fairly drawn for appellant against the fact that a bar owner’s duty may arise when an altercation should have attracted attention.

Another point lost in the majority’s analysis, in deploying Fisher, 319 P.2d 116 and the relevant sections of Mayflower Restaurant Co. v. Griego, 741 P.2d 1106 (Wyo.1987), is that those cases allowed the plaintiff access to a jury and did not deal with review of summary judgment. By contrast, appellant here is denied a jury decision following trial.

The majority follows the district court in adopting appellee’s characterization of the evidence and then seems to search for the most favorable inferences available to the bar. Because this court should consider the evidence only in the light most favorable to appellant during summary judgment review and because such a review mandates a contrary result, I must dissent from this procedure which denies a jury the decision of whether or not Giovale’s Bar breached a duty under these circumstances. Obviously, a bar owner owes a duty of some nature to its patrons. This case calls into question whether that duty was violated under these factual circumstances. One man was shot dead, appellant was permanently injured after being shot in the back and Hank Summers is serving two concurrent thirty-five year to life terms for murder and attempted murder, Summers v. State, 725 P.2d 1033 (1986), confirmed on reh’g 731 P.2d 558 (Wyo.1987). I would leave it to the jury to decide where responsibility is located. Viewing the depositions of appellees, bartender Marsha Carter and owner/manager Richard Hiner, in the light most favorable to appellant and giving to him the benefit of all reasonable inferences, a far different story emerges.

It was Friday night when Summers pushed through Giovale’s crowded bar. That crowd parted like the Red Sea when they saw him coming through the bar. They knew him to be an ex-boxer with a lightning quick temper and equally quick fists. From the evidence in the record, Carter was well acquainted with Summers’ reputation for heavy drinking, bad temper and uncontrolled violence. Summers was again drunk and obviously angry because he was threatening to hurt someone named Dennis who he said owed him drug money. While the majority says the bar should not have been on alert by any of this, Summer’s presence was so threatening even an off duty employee of the bar offered to pay him for that drug debt from money in the bar’s till. When Summers and appellant had both gone outside, Carter not only knew there could be trouble going down but knew that Summers might have gone to get a gun.

Carter would not call the police until the lives of three men had been shattered — one dead, one incarcerated for murder and appellant seriously injured. Why did she fail to call the police when the smell of danger overpowered the smell of alcohol in the bar? This question is answered by this record that it was because the bar owner considered the presence of police not to be terribly good for business. House rules informed bartenders not to first call police when there was a threat of danger or harm to customers. The house rules were simple — profits before police and death and injury before patron protection. I dissent under the facts of this case because the bar designed its managerial system to neglect reasonable preventive care for the customers invited in to purchase a legal drug which robs the senses — alcohol.

Giovale’s bar averaged one physical altercation a week during Hiner’s tenure as manager. Yet, he instructed Carter to placate rather than chastise troublemakers. She was told never to call the police until she called him when trouble threatened or erupted. Out of the seventeen months Carter worked at Giovale’s prior to the shooting, she recalled ten to twenty episodes of threatened violence, directed at either herself or her customers, serious enough for her to consider calling for police assistance. On none of those occasions did she actually call the police. When she asked Hiner to provide a bouncer for weekend security, he refused; So she was left alone on the night of the shooting to cater to fifty to sixty rowdy, mostly male bar patrons and various take-out customers. That was the bar into which Summers walked.

Carter knew Summers could be a troublesome drinker. Hiner had even warned her of his reputation for violence. That night, Summers was nothing but drunken trouble. Before briefly leaving the bar, he started shoving around another bar customer, Albert Carillo. Before his return to 'the bar, someone told Carter that Summers might have a gun in his car. Summers, himself, made mention of a gun to Carter, but she could not recall him stating he had one on his person or in his vehicle.

Carter was also aware that Summers, sometime after his return, had struck Steve DePaola from behind without provocation. Although she did not witness the assault, she observed Summers storm out of Gio-vale’s shortly after the incident. As Summers was leaving, DePaola challenged him loudly to continue the fight outside the bar. Carter observed appellant's uncharacteristic anger over Summers' attack on DePao-la, but noted that both appellant and De-Paola remained in the bar for almost five minutes following Summers’ departure. The incident worried Carter, but she took no immediate action. When she finally followed her initial inclination to summon the police, they arrived within one to two minutes of her call.

One may reasonably infer from the depositions that Giovale’s accorded its patrons by policy and practice a “serve ’em and leave ’em” standard of care. Relevant as the mere existence of that policy might be to Giovale’s culpability, the deposition testimony further suggests appellant was indeed victimized by Carter’s implementation of that policy on the evening appellant was shot by Summers. The deposition testimony places in issue each of the six factors deemed necessary and material to appellant’s recovery by the Fisher test. It indicates: (1) Giovale’s bartender had, or at the very least should have had, notice of a serious and violent disturbance involving appellant and Summers; (2) that Carter had five minutes available to call the police for appellant’s protection; (3) and (4) Carter utterly failed during that time to seek any help despite being very aware a violent and possibly armed assailant might be waiting for appellant and his companion to leave Giovale’s; (5) subsequent violence occurred which involved the same participants as the earlier disturbance, solely in response to DePaola’s challenge to continue that disturbance; and (6) appellant was injured by Summers’ continued violence. What does it take to satisfy the Fisher test if not this?

The trial court and a majority of this court focused on the many discrepancies in Carter’s deposition testimony and resolved them in the manner suggested by appellee. Such evidentiary interpretations, however, are matters for the jury after a full presentation of witnesses. They are wholly inappropriate when made by the trial court as a prelude to summary disposition. Davenport, 744 P.2d 1110. Contrary to the majority’s use of Fisher, that case can provide no support for this judicial incursion into the jury’s domain. In Fisher, this court reversed a jury decision that an argument provided notice to a tavern operator sufficient to establish a duty to protect a patron. In Fisher, neither the party breaking the bottle which caused the plaintiff’s injury nor the plaintiff were involved in the argument which allegedly notified the bar of impending violence. The Fisher court found the plaintiff’s evidence regarding that disturbance insufficient to establish the bar had been forewarned of any potential harm to the plaintiff. Such is not the case here. Appellant presented evidence that he and his assailant were involved both in the initial disturbance and the resultant gunplay. Additional evidence indicates a jury could have found that the appellee should have known violence was likely to occur when appellant stepped outside. Granted, were we now faced with a challenge by appellant under a sufficiency of the evidence claim after a trial, the present record might not support appellant’s challenge because then all inferences would be given to the prevailing party.² However, we are reviewing a granted summary judgment and appellant carries a different burden. He has met that burden.

Tort litigation often warns that certain behavior will not be encouraged or condoned. This holding will do the opposite and announce to tavern keepers that while “an individual should not be able to profit from injuries arising from his own voluntary intoxication,” the tavern should be able to profit from income arising from the sale of such an intoxicating drug. When bar owners put profits ahead of reasonably exercised caution for the patron’s or society’s protection, Mayflower Restaurant Co., 741 P.2d 1106; McClellan v. Tottenhoff 666 P.2d 408 (Wyo.1983); Fisher, 319 P.2d 116, they should face a jury as to who should pay. Surely here, the jury as the conscience of the community, should be given the right to analyze duty and resulting economic responsibility for factually ignoring reasonable safety precautions. I refuse to accept the tale of this tragedy including violence, firearm use, death and injury magnified by evidence of a bar owner’s mandate that the police should be called last as justification for adverse summary judgment. To me, indisputably, these events cannot foreclose finding at least some evidence from which negligence could be inferred with which a jury trial should be provided.

For these reasons, I respectfully dissent.

1 . “We examine the record from the vantage point most favorable to the party opposing the motion, and we give that party the benefit of all favorable inferences which may fairly be drawn from the record." Baros, 780 P.2d at 342.

2 . "As a reviewing court, we assume the evidence of the successful party is true, [leave] out of consideration entirely the evidence of the unsuccessful party in conflict therewith, and [give] to the evidence of the successful party every favorable inference which may reasonably be drawn from it.” Mayflower Restaurant Co., 741 P.2d at 1113; accord Landmark, Inc. v. Stockmen’s Bank & Trust Co., 680 P.2d 471, 473 (Wyo.1984).