Opinion
No. 555438
May 14, 2003
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This case arises out of a tragic incident at a bar known as Pool Hand Luke's, Inc., in which the plaintiff was shot and severely and permanently injured. The defendant bar has now filed a motion for summary judgment to the claims made by the plaintiff, which in the first count is based on negligence and in the second count is based on a violation of the Dram Shop Act (§ 30-102).
The standards to be applied in ruling on a motion for summary judgment are well known. If a genuine issue of material fact is presented, the court cannot decide it since the parties have a constitutional right to have such an issue decided by a jury. On the other hand, if there is no merit to the claim being made, the court should grant such a motion, since parties should be spared the expense and aggravation that would be caused by unjustified litigation. The court will first discuss the claim made under the Dram Shop Act.
A.
(1)
The defendant first argues that it never received notice of the claim pursuant to the requirements of the Dram Shop Act (§ 30-102). The act provides that an action can be brought:
. . . provided the aggrieved person or persons shall give written notice to such seller (of alcohol) within sixty days of the occurrence of such injury to person or property of his (her) of their intention to bring an action under this act.
This language can be compared to the notice language of § 13a-149, which provides for suits against municipalities for injuries caused by defective roads and bridges. The relevant language says that: "No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury . . ." is given to the statutorily identified municipal agents. Since both these statutes are in derogation of common law, the ancient rule applies that notice must be given within the time period specified in the statute or no cause of action will lie. DeMartino v. Seimon, 90 Conn. 527, 528 (1916). The appellate court adopted this position as to the notice requirement of the Dram Shop Act in Davenport v. Quinn, 55 Conn. App. 282, 292 (1999).
The question remains what does § 30-102 mean when it says notice shall be given and who has the burden of proof on the notice issue? As the defendant points out, the case of Rivera v. Meriden, 72 Conn. App. 766 (2002), would appear to have a bearing on the question of notice under § 30-102, although Rivera itself discussed the notice requirements under § 13a-149. The statutory language of § 30-102 and § 13a-149 is roughly similar. Both statutes are in derogation of the common law so it would be difficult to justify looser notice requirements just because under § 30-102 a private entity is being sued as opposed to a governmental entity under § 13a-149. Furthermore, in holding notice was a condition precedent to a § 30-102 suit the court in Davenport relied on similar holdings by the court in other statutes permitting suits in derogation of the common law. One of the cases cited was Hillier v. East Hartford, 167 Conn. 100 (1974), which was an action brought like Rivera under § 13a-149. There is no rational basis to hold that the Rivera view on the mechanics of notice would not be applied to § 30-102 actions. In Rivera, the court held that the burden is upon the plaintiff to show delivery and receipt of the statutory notice. In that case, the plaintiff submitted an affidavit that the notice was mailed. However, a counter affidavit was filed by the City from the city clerk alleging she never got the notice and the defendant's risk manager also stated by affidavit that he regularly received the copy of such notices and he never got the Rivera notice. Based on all of this, the appellate court upheld the trial court's dismissal of § 13a-149 action on a finding that notice had not been proven under the statute.
Here, the defendant's president, Mr. Renehan, has submitted an affidavit in which he states he does not recall receiving the plaintiff's notice letter. The notice letter is dated July 23, 1999. In his affidavit, Mr. Renehan says he closed the bar July 1, 1999. He indicates that "at no time after that date did (he) receive or collect mail from Pool Hand Luke's or 58 Brainard Street (address of bar) or have mail from that address forwarded or delivered to (his) home." There is nothing to indicate Mr. Renehan secreted himself after turning in his license to operate Pool Hand Luke's and the inference from his affidavit is that mail directed to him at the bar's address was being forwarded to him at home.
On an even more basic level, the plaintiff cannot sustain his burden of proving the notice sent was actually received and this would be the case even if some concern were to be raised because (1) Renehan withdrew from the business three weeks before the letter was sent; and (2) Renehan does not explicitly state in his affidavit that he had made arrangements to have his mail forwarded to him at his home. The old common-law rule on receipt of mail as succinctly stated by Tait in his Handbook of Connecticut Evidence 3 Ed. § 3.17.6 at p. 184, but not mentioned in Rivera is to the effect that: "Proof of mailing to a person at the correct address with the correct postage creates a presumption that such letter or other item was received by the addressee . . ." Pitts v. Hartford Life and Annuity Ins. Co., 66 Conn. 376, 384 (1895) (emphasis by this court). Here, Renehan's affidavit explicitly states that the address of the bar was "58 Brainard Street" in New London, but the notice has the address as "58 Brennard Street."
If the Rivera rule is considered harsh, especially in light of its apparently not being relaxed by the common-law rule just discussed (which even at that, the plaintiff does not comply with), the solution is simple — use certified mail with return receipt requested or have personal service made.
On the notice requirement alone, the Dram Shop Act claim has to be dismissed.
(2)
But there are more substantive reasons for dismissing the claim under the act. In order to establish liability under § 30-102, the plaintiff must prove that the defendant or his agent sold (1) "any alcoholic liquor" (2) to "an intoxicated person" and (3) such purchaser of the liquor "in consequence of such intoxication thereafter injures the person or property of another."
What does the court have before it to answer the first and second elements of the necessary requirements to prove a case under the act?
The defendant has submitted somewhat confusing responses by the plaintiff to a request for admissions. The plaintiff, for example, was asked to admit but "denied" the following assertions:
1. The plaintiff has no information to support his allegation that Dennis Ragston (alleged shooter) was served alcoholic beverages at Pool Hand Luke's on June 22, 1999, before the incident that is the subject of this lawsuit occurred.
2. The plaintiff does not know whether Dennis Ragston was served alcoholic beverages at Pool Hand Luke's on June 22, 1999 before the incident that is the subject of this lawsuit occurred.
3. Dennis Ragston was not served alcoholic beverages at Pool Hand Luke's on June 22, 1999 before the incident which is the subject of this lawsuit occurred.
4. The plaintiff did not see Dennis Ragston being served alcoholic beverages at Pool Hand Luke's on June 22, 1999, before the incident that is the subject of this lawsuit occurred.
5. The plaintiff cannot identify any person who saw Dennis Ragston being served alcoholic beverages at Pool Hand Luke's on June 22, 1999, before the incident that is the subject of this lawsuit occurred.
As indicated, to all these assertions the response was "denied."
But then later in the requests, the following requests were made with the indicated answers:
21. The plaintiff has no information to support his allegation that Dennis Ragston was intoxicated on June 22, 1999, before the incident that is the subject of this lawsuit occurred.
Response: "No sufficient knowledge to respond."
22. The plaintiff does not know whether Dennis Ragston was intoxicated on June 22, 1999, before the incident that is the subject of this lawsuit occurred.
Response: "No sufficient knowledge to respond."
23. The plaintiff cannot identify any witnesses who have stated that Dennis Ragston was intoxicated on June 22, 1999, before the incident that is the subject of this lawsuit occurred.
Response: "No sufficient knowledge to respond."
25. Dennis Ragston was not intoxicated on June 22, 1999 before the incident that is the subject of this lawsuit occurred.
Response: "No sufficient knowledge to respond."
In his written response to the motion, the plaintiff offers no explanation for the responses to the requests for admission and their apparent inconsistencies.
Perhaps even more to the point, both sides have attached to their briefs portions of the deposition of the plaintiff which, among other things, reflect the following in referring to the shooter Ragston:
Q And you don't know if he had drinks anywhere before he got to Pool Hand Luke's?
A Right.
Q Do you know if he was using drugs the night of the shooting?
A No.
Q And you don't know if he was drunk at the time of the shooting?
A No.
Q Okay. And you don't know if he was under the influence of any drugs at the time of the shooting?
A No, I don't.
How can the court, based on the plaintiff's own submissions, conclude that a genuine issue of material fact is presented as to whether the second element of the Dram Shop Act is met — that Ragston was intoxicated when served alcohol? The only response the plaintiff makes in his brief is to ask the court to posit that the shooter, Ragston, was a minor and then argue by reference to § 14-227g that the courts and the law have great concern with underage drinking, the percentage of alcohol in the blood required for prosecution is less for those under twenty-one. It is argued that a material issue of fact exists as to whether Ragston was drinking and "an expert witness will most likely testify that one drink or less would cause the blood alcohol level to exceed the percentage established by Connecticut General Statutes § 14-227g . . ." That argument will not suffice. The plaintiff has submitted nothing to counter the conclusion that there are no facts, observations or witnesses to support a conclusion that Ragston was intoxicated. In fact, what has been submitted indicates the opposite or at least that no conclusion on the issue can be reached.
But even beyond that, the predicate to the underage drinking argument and the first element of a Dram Shop Act claim cannot be met — there is no genuine issue of material fact as to whether Ragston was even served alcoholic beverages. The deposition of the plaintiff indicates he saw Ragston have a mixed drink in the bar before the shooting, but he does not know what was in the drink. When asked how he knows there was alcohol in the drink served to Ragston, the plaintiff said, referring to the bartender, "Because I saw her making mixed drinks." The following then occurred:
Q What I'm trying to figure out is how do you know it wasn't just a coke or a grapefruit juice or cranberry juice or orange juice? How do you know it also had alcohol in it?
A I don't know.
Q I'm sorry?
A I don't know.
This very candid plaintiff's own testimony indicates to the court that the first element can also not be established on the basis of the record submitted. Thus, no material issue of fact bars the court from reaching such a conclusion. Since the first two elements cannot be established, it necessarily follows that as to the third element of a Dram Shop Act claim — injury to another caused by intoxication — no issue of material fact is presented.
The Dram Shop Act is dismissed.
B.
The court will now attempt to discuss the motion for summary judgment as it is directed at the negligence count. First, the court will discuss the facts presented by each side by way of affidavits and depositions and then it will discuss the negligence claims based on those facts and the arguments made in the defendant's motion against those claims, given the factual background.
In this case, it can be inferred that Pool Hand Luke's was a bar which served alcoholic beverages. It was operated by a Mr. Renehan. The plaintiff was a business invitee of the bar. On June 22, 1999, shortly after midnight, he was shot by another person who had been in the bar. In a deposition attached to the briefs submitted to court, the plaintiff gives the following description of his being shot by Dennis Ragston:
. . . I sat at the bar and, like 15, 20 minutes later, Dennis came over to me and he asked me — he just said, "Were you guys talking about me?" I said — I turned around and I said, "No, we were just joking between each other." He was like, "Oh, all right. Because I got into some stuff earlier, and I wasn't trying to have it tonight." I said, "No it's not even like that." Then I said, "Well, you know, if you're in a bad mood like that, then you should be over where your friends are instead of over here," and then he just shot me after that. That was it.
When the plaintiff was asked what he understood Ragston to mean when he said he "got into some stuff earlier," the plaintiff replied:
Like he got into a fight earlier or somebody tried to jump him maybe or anything like that.
The plaintiff did not know what caused Ragston to walk over to him or talk to him. From the time Ragston approached him to the time the plaintiff was shot, only one or two minutes elapsed. He was not threatened or scared when Ragston approached; he did not think Ragston was coming to him "to do something bad."
The plaintiff Winston was then asked if he ever saw anyone shot in the bar before the night he was shot and said no. He had seen fights "a couple of times." In the first incident, two men jumped another person; the fight started inside and went outside. The victim was repeatedly kicked, but Winston broke the fight up. This incident occurred a couple of months before June 22, 1999. A bartender, Jaime, was present, but Winston did not remember Renehan being present. The other incident involved a situation where a woman entered the bar and Winston thinks she asked, "Hawk," who was working there, if she could buy drugs. Winston said Hawk got mad at this request and threw the woman out of the bar. Hawk's dog then proceeded to follow the woman out and bit her. From what has been supplied to the court, there is no information as to when this second incident happened.
The foregoing portions of the deposition were submitted by the defendant. The plaintiff submitted portions of his deposition about whether and what Ragston drank the night of the shooting, which has been discussed in the section of the decision discussing the Dram Shop Act claim. The deposition also indicated that the plaintiff did not know if Ragston or his friends had drugs with them or if anyone had drugs that night. The plaintiff said he did not know if Ragston was under the influence of drugs or was even intoxicated. The plaintiff denied having drugs on him. Winston denied having a weapon the night of the shooting and did not know whether Ramon, Ragston's friend, had a weapon.
In his brief opposing summary judgment, the defendant also relies on an affidavit submitted by a James Floyd under oath which makes some surprising admissions. This individual, James Floyd, Jr., says:
2. I am familiar with Pool Hand Luke's, Inc. and Robert Renehan, in that I used to sell drugs in Pool Hand Luke's, Inc. and Robert Renehan knew of the sales and drug dealings in his establishment and was collecting rent for allowing the sales in his establishment;
3. Robert Renehan himself was using drugs which I supplied to him as part of paying rent for operating in his establishment;
4. I am familiar with other people who were selling drugs in the establishment and paying rent to Robert Renehan for same;
5. I am aware of underage drinking in the establishment and that the patrons were not carded.
Portions of these paragraphs are conclusory — it is not indicated how it was known that other people were selling drugs and that Renehan was receiving rent for this activity or how the affiant knew underage drinking occurred in the establishment — how did he know people were underage? Not all of the affidavit can be dismissed as conclusory, however. The affiant, Floyd, states he used to sell drugs at the bar and paid Renehan rent for the opportunity. Also, it can be inferred that Floyd had been in the bar and therefore can say no one carded people to determine their age when they entered the bar.
The major problem with the affidavit, however, is that no dates appear or other indications from which the court can garner when nonconclusory events occurred in relation to the shooting or when Renehan was "president" of the corporation that operated the bar at the time Floyd made his observations.
Mr. Renehan has submitted an affidavit. He states that before the date of the shooting he was not aware of instances where patrons possessed weapons or fired them. While the bar was open, no patron or employee raised any concerns regarding safety or crime. He denies knowing Ragston or being aware of any criminal violence at the bar.
The foregoing represents the factual background to the legal issues raised which the court will now discuss.
The court will first set forth the specifications of negligence set forth in the various complaints. The court will then discuss the somewhat different claims actually argued.
What specifications of negligence are made in the various complaints? The plaintiff alleges that:
(1) At the time of the shooting, Ragston was under 21 years old and should not have been allowed into the bar which served alcohol. He was allowed in without proper identification.
(2) Ragston was allowed into the bar with a gun as a result of improper security at the entrance.
(3) The defendant failed to have a properly trained person checking identifications at the entrance.
(4) There was no properly trained staff or security personnel to break up fights and/or protect the safety of patrons.
(5) The defendant knew or should have known the bar attracted underage patrons and that many fights and security breaches have occurred in the past as evidenced by the local police department's response to calls of disturbances at the bar.
It must be said that one of the confusing things about this case is the fact that there is apparently no viable complaint before the court, neither has the court been requested to permit an amended complaint at the time of argument or since argument. In the past history of this case, several objections to complaints filed by the defendant have been sustained, but that did not prevent the defendant from filing its motion for summary judgment and none of the previous objections appear to have been made or sustained on the basis of legal sufficiency.
Another matter should be referred to which is of great concern to the defendant. At the first argument, the plaintiff submitted no documents, affidavits, depositions or any other evidence to counter the defendant's motion, but thought he could just refer in oral argument to what the plaintiff considered relevant evidence in the record or revealed at depositions. This, of course, violates Rule 17-45 of our practice rules. The court continued the matter for a short time to allow the plaintiff to comply with our rules. Defense counsel strongly objected to this as was his right. However, it was apparent to the court that plaintiff's counsel was not aware of Practice Book § 17-45 and there was no conscious attempt to flout the rules or prejudice opposing counsel. If a court in the interests of justice can reopen the evidence where counsel inadvertently fails to introduce evidence, even after both sides have rested, why can it not give a continuance for the reason it did here? This case has no assigned trial date, a jury was not waiting in the wings in a situation where completely new evidence was proposed which opposing counsel could not prepare for. Practice Book § 17-45 does say that in response to a summary judgment motion: "The adverse party shall, at least five days before the date the motion is to be considered on the short calendar, file opposing affidavits and other available documentary evidence." That language certainly gives the courts a right to order that argument go forward where the adverse party files no affidavits or documents leaving it to just argue against the proponent's submissions. This would especially be appropriate where there has been an intentional flouting of the rules or several continuances. Also, the rule gives the party advancing the motion an explicit right, in this court's view, to ask for, and receive, more time to respond to anything submitted at the last minute. But if the latter is afforded, the rule should not tie the court's hands by barring the granting of an opportunity to the adverse party a chance to comply with the rules. A "got-ya" or "ja-nein" view of our rules should not always prevail, especially in light of Practice Book § 1-8 which says that the design of the rules is not just to facilitate business but also "to advance justice" and they shall be liberally interpreted "in any case where it shall be manifest that a strict adherence to them will work surprise or injustice."
But things are further complicated by the fact that the previously referenced Floyd affidavit was first produced by the plaintiff at the second hearing on the motion which the court had scheduled to give the plaintiff an opportunity to comply with Practice Book § 17-45. The defendant was offered but did not request an opportunity to respond to what was submitted by the plaintiff at the second hearing. What then are the allegations of negligence before the court? The court has referred to the allegations of negligence in the various complaints. The court will now refer to the position taken by the plaintiff in his supplemental brief filed for the second hearing especially as regards the Floyd affidavit.
At the final argument on this matter, in its supplemental brief, the plaintiff relied on Floyd's affidavit to argue that:
It is common knowledge that drug dealers and/or their associates carry arms for self protection and to defend against rival drug dealers who may move into their turf. Violence is a natural consequence of illegal drug activity and when the defendant knowingly and wilfully allows drug dealers to operate under its roof, defendant is charged with notice that condoning such conduct places other persons at imminent harm.
Also, the second brief by the plaintiff raises the same claims made in the complaint but also explicitly makes the allegation that the defendant bar allowed underage patrons to be served alcoholic beverages without checking their identification.
The court will now discuss the arguments advanced by the defendant in behalf of its motion, given the allegations of negligence made by the plaintiff and in light of the factual background previously discussed.
The defendant's motion relies on the concept of legal cause to argue that this necessary prerequisite for a negligence claim cannot be established in this case, especially in light of the fact that an intervening criminal act by Ragston caused the injury. The relevant concepts are succinctly discussed at pages 757 through 759 of Doe v. Manchester, 212 Conn. 748 (1989). There, the court said:
To prevail on a negligence claim, a plaintiff must establish that the defendant's conduct "legally caused the injuries" . . . the first component of "legal cause" is "causation in fact" . . . "causation in fact" is the purest legal application of . . . legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor's conduct. The second component of "legal cause" is proximate cause, which we have defined as "an actual cause that is a substantial factor in the resulting harm . . ."
(Emphasis by this court.)
The court notes that "the `proximate cause' requirement tempers the expansive view of causation (in fact). In other words, "That negligent conduct is a `cause in fact,' however, obviously does not mean that it is also a `substantial factor' for the purposes of a proximate cause inquiry. The `substantial factor' test, in truth, reflects the inquiry fundamental to all proximate cause questions; that is, `whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's negligence.'" That is, the court is saying was the harm caused within the scope of the risk (to coin a phrase) created by the defendant's negligence?
This discussion sets the framework for analyzing the proximate cause issues raised by the fact that injury was caused by the intervening criminal act of another person such as Ragston.
Thus, the Manchester court went on to say:
The "scope of the risk" analysis of "proximate cause" similarly applies where, as here, the risk of harm created by the defendant's negligence allegedly extends to an intervening criminal act by a third party. "We have consistently adhered to the standard of 2 Restatement (Second), Torts § 442B (1965) that a negligent defendant, whose conduct creates or increases the risk of a particular harm and is a substantial factor in cause of that harm, is not relieved from liability by the intervention of another person, except where the harm is intentionally caused by the third person and is not within the scope of the risk created by the defendant's conduct."
Referring to intervening acts, the court again borrowed from the Restatement when it further explained: "Such tortious or criminal acts may in themselves be foreseeable, [however], and so within the scope of the created risk."
In trying to address the problem before the court, it is all well and good to talk in terms of Restatement abstractions, but it is also helpful to examine cases that give a real world perspective to the problem at hand in that they deal with assaults against bar patrons who later sue the bar for their injuries. A Connecticut Supreme Court case deals directly with the issue, Cardona v. Valentin, 160 Conn. 18 (1970). Also, there is a veritable river of cases in a 43 ALR 4th article at p. 281. It is over 100 pages in length and is entitled, appropriately enough, "Tavern-keeper's Liability to Patron for Third Person Assault." Section 11 of the article at p. 363 deals with "shootings" and there is a recently compiled supplement.
The basis of the negligence claims made here was set forth in the case of Nolan v. Morelli, 154 Conn. 432, 440-41 (1967), where the court said, "Thus, a cause of action predicated on negligence" in the failure of a proprietor of a restaurant, or his (her) servants or agents, to exercise reasonable care in the supervision of the conduct of patrons or other business visitors within his (her) establishment would be unaffected by the common-law rule (which restricted recovery in intoxication cases), whether they were or were not intoxicated and, if intoxicated regardless of when, where or how they became intoxicated. In such a situation, a patron or business visitor of the establishment who sustains an injury in person or property as a consequence of such negligence in supervision might have a common-law cause of action . . ." Using the Nolan test, the court will attempt to discuss the various theories of negligence advanced by the plaintiff and the criticism leveled against them.
In Bohan v. Last, 236 Conn. 670 (1996), the court held that "in appropriate circumstances" a bar owner could be held liable in common law for selling alcohol to a minor, id. p. 679"; "this common-law duty encompasses responsibility to innocent third-party victims of intoxicated minors," id. p. 681. No such claim is made in this case nor could such a claim be made since as previously discussed in the Dram Shop count whether Ragston was served alcohol in the bar before the shooting is completely speculative and perhaps more to the point, nothing has been offered to indicate he was intoxicated.
(1)
In one set of negligence allegations, the plaintiff makes a series of claims concerning allegations that the defendant allowed underage patrons into the bar, served such patrons alcohol, and had no system in place to ensure that underage patrons did not enter the bar. The plaintiff makes no explicit argument to this effect, but seems to suggest that all of these actions somehow made the defendant guilty of "contributory negligence" in causing injury to the plaintiff. It is true that § 30-86 bar sales by bar permittees of liquor to a minor and also § 30-90 says minors shall not be allowed on the premises; penalties are provided for in § 30-113. cf. Carey v. New Yorker of Worcester, Inc., 245 N.E.2d ___, 420, 423 (1969). But aside from the fact that these statutes are not even alluded to by the plaintiff, the court need not get into a lengthy analysis of whether application of Restatement (Second) Torts § 874 suggests that civil remedies be provided for violation of these statutes. There is nothing in the record submitted to the court that establishes that Ragston was even a minor or that anyone with him that night was a minor. The Floyd affidavit said, "I am aware of underage drinking in the establishment and that the patrons were not carded." There is no indication as to how he was aware of this, when he came to this knowledge and how in terms of time it was related to the date of the shooting. There has been nothing offered to show Ragston or anyone he even was with was intoxicated, and as previously discussed, that he was served alcohol. So there is no basis to conclude, based on all this, that there was a danger in general for a reasonable time before the shooting or on the night thereof that the defendant knew or should have known anything about any propensity of underage patrons, underage patrons served alcohol, or intoxicated underage patrons and their propensity to cause harm to others, let alone shoot them. In other words, there are not even enough predicate facts presented which permit a proximate cause analysis.
But even leaving aside these difficulties assuming minors were allowed on the premises and/or no steps were taken to exclude their presence as in Knudsen v. Lenny's, Inc., 413 S.E.2d 258 (Ga.App. 1991), where a nightclub was sued by a plaintiff injured in a fight with a minor (Scroggins) — here, as there, "there is no evidence indicating that (the nightclub) or its employees were aware, or should have been aware that the (attacker) may react as he did. Nor is there any evidence that (the nightclub) or its employees were aware or should have been aware of any propensity of persons under 21 to react as (the attacker) did. Id. p. 260.
Also see Mealey v. Pittman, 559 N.E.2d 1173 (Ill.App. 1990) (plaintiff sues tavern after being injured in parking lot by minor who had been drinking in tavern. The court noted it was not a violation of state law for a minor to be in a tavern (unlike our law) but also said in a case where the minor had even been served liquor, the following:
Plaintiff argues that it was, however, reasonably foreseeable that minors to whom liquor was served would be a group of people "possessed of the propensity to cause harm." As best we can determine there was no evidence of trouble caused by the minors who allegedly frequented the tavern during the time Pittman owned it which could be said to have put Pittman on notice of the danger which the plaintiff encountered. The only disturbance at the tavern after the defendant purchased the business involved a dispute described above between two groups of adults, not minors.
Generally speaking then, the fact that Ragston was a minor or even that other minors may have been allowed in the bar or served alcohol (even if accepted as established by this record) would not provide a basis to conclude the defendant bar was negligent where a person has been injured by the intentional act of such a minor.
(2)
The plaintiff's negligence claim is not confined to the underage patron or underage drinking issue, however. The plaintiff makes a broader claim of negligence not confined to underage patrons and their drinking and as regards these claims the article in 43 ALR 4th 281 notes that the question of the liability of a tavern keeper for injury to a patron due to the intentional act of a third party was considered in Nevin v. Carlasco, 365 P.2d 637 (Mont., 1961), which the article regards as a leading case.
The article notes that many cases have considered the tests discussed by that court. Nevin reviewed the leading cases from other jurisdictions and said at p. 638:
. . . we find the general rule to be that the duty of a tavern keeper to protect a patron from injury by another arises only when one or more of the following circumstances exist:
(1) A tavern keeper allowed a person on the premises who has a known propensity for fighting.
(2) The tavern keeper allowed a person to remain on the premises whose conduct had become obstreperous and aggressive to such a degree the tavern keeper knew or ought to have known he endangered others.
(3) The tavern keeper had been warned of danger from an obstreperous patron and failed to take suitable measures for the protection of others.
(4) The tavern keeper failed to stop a fight as soon as possible after it started.
(5) The tavern keeper failed to provide a staff adequate to police the premises.
(6) The tavern keeper tolerated disorderly conditions.
Leaving aside consideration (5) for the moment, none of these factors existed here from the facts submitted to the court and discussed previously — prior to the shooting, even according to the plaintiff, Ragston did or said nothing to indicate he presented a danger to the plaintiff or anyone else, there was no substantial history of violent or aggressive behavior in the establishment, Ragston was not known to Renehan, let alone any violent propensities he might have.
In Welch v. Railroad Crossing, Inc., 448 N.E.2d 383 (Ct. of App.Ind., 1980), the plaintiff sued a tavern which had served intoxicating liquor to a patron who later attacked her with a knife. In the negligence action, the court upheld the trial court's ordering of a directed verdict for the defendant tavern, saying at p. 388:
We have found no case in which a court imposed a common-law duty to protect against an attack on the theory that intentional criminal acts are foreseeable merely from the fact that alcohol is sold on the premises or that such acts are foreseeable solely from the fact that the assailant was served beyond the point of intoxication. There must be more because the foreseeability of a criminal act is determined by reference to the proprietor's knowledge of the actor's behavior. For the proprietor of a tavern to be held liable for a criminal assault under a common-law theory of negligence, the proprietor must have been alerted to the likelihood of harm by the prior actions of the assailant, either on the occasion of the injury or on previous occasions.
Furthermore, as regards to consideration (5) of the Nevin decision — the tavern keeper failed to provide a staff adequate to police the premises — this factor is discussed in § 8 of the 43 ALR 4th article at pp 328 et seq. This claim can be said to basically involve a claim of a failure to provide adequate security. Several cases discuss such a claim as being "present as a factor supporting liability." All of them involve situations where the tavern keeper ran a bar which had a history of rowdy or violent behavior or knew from past contact that the assailant was a violent person who frequented the tavern. A Connecticut case is cited in the ALR article, Mehri v. Becker, 164 Conn. 516 (1973). In that case, a union sponsored an outdoor picnic. Several police were to be hired for the happy event but only one was on duty. The assailant attempted to run down one person with his car but struck the plaintiff instead. One of the grounds of negligence was failure to provide adequate police protection. The court upheld the verdict for the plaintiff against the union. The court found that on the basis of the evidence, it was within the jury's province to find the union negligent. Some of the relevant facts mentioned by the court were that the tenor of the picnic became "noisy and inharmonious," people were swimming in the pool with their clothes on, the assailant drank many beers and became involved in fights during the affair. However, he was not "arrested, evicted or escorted from the grounds." Id. p. 519. No such facts exist here to justify a conclusion of negligence because of inadequate security.
In other words, the cases suggest failure to provide security cannot be determined by the use of hindsight or based on some notion of security culled from the air which if it had been in place would have prevented the assault. There must be some indication or warning that such security was necessary before an incident or while an incident was developing in a time frame which would have given the bar owner a reasonable time to react so as to take steps to protect his or her patrons.
None of the factors the court has been discussing up to this point permit the court to make a finding that the defendant was negligent because the bar was staffed only by a bartender and a manager on the night in question.
(3)
The plaintiff has attempted to overcome these difficulties by presenting the Floyd affidavit. Conclusory in part it does explicitly say that the affiant sold drugs in the bar with Renehan's knowledge and the latter even collected rent for the opportunity given Floyd to do so. The plaintiff basically argues drug trafficking attracts violent people so that Renehan's actions with Floyd, if believed, created a duty on his part to provide adequate security or perhaps warn patrons of the dangers presented, although this is not fully articulated. In any event, the basic argument appears to be when one opens his or her premises to the public, there is an obligation to provide a safe environment for them, which would certainly be violated if one were to attract violence prone individuals, who are often armed, to those premises.
The problem with the Floyd affidavit, as the court has indicated, is that no dates are given as to when this activity occurred in relation to the shooting — several weeks or months before, after the shooting, on the night of the shooting, at specific times related to the time the shooting occurred — none of this information is provided in an affidavit where the person giving it was otherwise not reluctant to give incriminating information. Also, as previously discussed, the plaintiff had no idea if Ragston had drugs on him the night of the shooting or whether anyone else in the bar did that night. The incident as it developed had nothing to do with the dispensation of drugs, but was one of those unpredictable acts of violence by an armed person who felt apparently slighted or disrespected by a comment made to him by the unfortunate plaintiff. Renehan said he did not know Ragston. There is no indication he frequented the bar previous to the night of the shooting. It would only be rank speculation to conclude that if, in fact, drugs were being dispensed on the premises Ragston appeared armed in the bar because of some involvement or connection to any drug trafficking or that Ragston even knew drugs were sold in the premises.
The court concludes that negligence has not been proven in the first instance, and as to the Floyd affidavit, even if a negligence claim could be based on its allegations, the injury which resulted was beyond the scope of any risk.
The defendant's motion is granted.
Corradino, J.