Opinion
42906.
ARGUED JULY 5, 1967.
DECIDED SEPTEMBER 5, 1967. REHEARING DENIED SEPTEMBER 22, 1967.
Action for damages. Fulton Superior Court. Before Judge Etheridge.
Lipshutz, Macey, Zusmann Sikes, Robert A. Elsner, J. Timothy White, for appellant.
Long, Weinberg Ansley, Ben L. Weinberg, Jr., John K. Dunlap, Nick Lambros, for appellee.
The pleadings and evidence in this negligence action show no causal connection, legally attributable to the defendant, between the defendant's negligence, if any, and the plaintiff's injury; therefore, the motion for a summary judgment was properly granted.
ARGUED JULY 5, 1967 — DECIDED SEPTEMBER 5, 1967 — REHEARING DENIED SEPTEMBER 22, 1967.
Harold Christian brought an action against Louis Vargas, individually and doing business as Biuso's Italian-American Restaurant, for damages for personal injuries allegedly caused by the defendant's negligence. The petition, as amended, alleged substantially as follows: The plaintiff arrived at the defendant restaurant for the purpose of dining at approximately 1:45 a. m. on the morning of March 7, 1963, and one Alexander Jack Campbell, III, entered the restaurant some time during the evening (sic) of March 7, 1963. At about 2:30 a. m., Campbell began a heated dispute with defendant's wife, Mrs. Vargas, toward the rear of the restaurant, using profanity and other obscene language. He then walked to the front of the restaurant, cursing as he went, stood up on a seat, waved a knife around and shouted threats to everyone in the restaurant, including the plaintiff. Two of defendant's employees attempted to remove Campbell from the establishment and a scuffle ensued, after which Campbell and others walked outside the front door. "At said time and place there were approximately 10 to 15 people gathered immediately outside of the front door of said defendant establishment, where a melee was in progress." (Emphasis supplied.) At approximately this time, plaintiff finished his meal, paid his check, and walked out the front door, whereupon he was violently and viciously struck on the head and knocked to the sidewalk immediately outside the door, causing his alleged injuries. At this time there were approximately 75 to 100 persons dining in the restaurant. Campbell had frequented the restaurant often in the past, had caused disturbances there resulting in his arrest by the police on one occasion, and had been barred from the bar by the defendant because of his proclivity for heavy drinking and trouble making. Although Mrs. Vargas and the bartender knew of the above, Campbell nevertheless was served intoxicating drinks at the times complained of. The defendant's alleged negligence consisted of: (a) failing to use ordinary care in keeping the premises and approaches safe for plaintiff; (b) allowing Campbell, known to be a trouble maker and likely to create a disturbance, to enter the restaurant where 75 to 100 persons were dining; (c) allowing Campbell to enter the restaurant while defendant, through his agents and servants, knew, or in the exercise of ordinary care should have known, him to be intoxicated and likely to cause trouble; (d) allowing plaintiff, a customer, to leave the restaurant when defendant knew, or should have known, that it was not safe to do so; (e) failing to warn plaintiff of a dangerous situation outside the restaurant; (f) serving intoxicating drinks to Campbell and allowing him to become intoxicated while on the premises.
The defendant filed an answer and a general demurrer to the petition, which demurrer he later withdrew. Defendant then moved for a summary judgment based upon the pleadings, the depositions of the plaintiff, the defendant and defendant's wife, interrogatories and responses thereto and certain testimony of the plaintiff given in the Criminal Court of Fulton County in a criminal case against Campbell arising out of the events which are the basis of the present action. After considering the above evidence, the court sustained the motion for a summary judgment, from which judgment the plaintiff appeals.
"It is essential in order to maintain an action based on negligence that there be pleaded and proved the following elements: (1) a legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and (4) some loss or damage flowing to the plaintiff's legally protected interest as a result of the alleged breach of the legal duty." Shepherd v. Whigham, 111 Ga. App. 274 (2a) ( 141 S.E.2d 583). (Emphasis supplied.) Assuming the defendant's duty to protect the plaintiff against unreasonable risks of harm under the circumstances alleged and proved, the pleadings and the evidence do not show a breach of such duty. It appears that, although Campbell had been requested, and on one occasion forced, to leave the premises on account of his excessive drinking, cursing and profanity, the defendant had never known him to engage in fighting or other activities foreseeable dangerous to his other customers. This being so, Campbell's being served intoxicating beverages (as to which the evidence was conflicting), even despite the defendant's instructions to the contrary and the fact that Campbell may have had something to drink prior to entering the premises, would not necessarily be negligence. See United Theatre Enterprises v. Carpenter, 68 Ga. App. 438, 441 ( 23 S.E.2d 189). It also appears that, as soon as Campbell's behavior reached the point of becoming apparently or potentially dangerous, Mrs. Vargas, who was in charge of the restaurant during the night and early morning, called her husband, the defendant, who got there in about 10 minutes, then called the police, who arrived shortly after the defendant, then had one or more of her male employees "help" Campbell outside the front door, the sole exit. Even then, Mrs. Vargas testified that her reason for getting Campbell out was the embarrassment he caused, rather than any apparent danger to the customers. Even if the defendant's duty extended, by virtue of Code § 105-401, outside the door and to its approaches and the public sidewalk, in which general area the injury was incurred, the evidence shows that the plaintiff had as good an opportunity to apprehend any danger as the defendant, or better, and that he had room enough to get around the group of persons outside the door. There is no duty to warn of the obvious, or of that which the plaintiff already knew or should have known. Y. M. C. A. v. Bailey, 112 Ga. App. 684, 698 (9) ( 146 S.E.2d 324). Certainly, the defendant could not lawfully forcibly detain the plaintiff in the restaurant against his will.
Even further assuming, however, that the defendant somehow breached a duty to the plaintiff, there is missing the essential element of "a legally attributable causal connection between the conduct and the resulting injury." The petition alleges that at the time Campbell walked outside the door 10 to 15 persons were gathered there and that a melee was in progress. Construed most strongly against the pleader, or even just construed literally, this alleges that there was already a melee in progress when Campbell walked out the door. This eliminates all the alleged negligence with reference to Campbell, since the melee had commenced before he got outside the door. Furthermore, neither the petition nor the evidence showed that Campbell was present during, or contributing to, the fracas or the plaintiff's injuries. The plaintiff testified that he did not see Campbell in the crowd and neither he nor any other witness could identify his unknown assailant. The plaintiff testified that after he saw the altercation in progress, he stayed around for at least several seconds to see if an acquaintance of his was involved therein. Although this does not demand a finding that the plaintiff wilfully involved himself in the fight, it at least shows that he unnecessarily exposed himself to a situation which he knew, or in the exercise of ordinary care should have known, to be dangerous, and thereby assumed the risks involved.
The pleadings and evidence raised no issue of material fact; therefore, the court did not err in its judgment granting the defendant's motion for a summary judgment.
Judgment affirmed. Hall and Eberhardt, JJ., concur.