Lead Opinion
Thе plaintiff sued a bar for injuries sustained when he was assaulted in the bar’s parking lot. The district court granted summary judgment in favor of the bar. The court of appeals reversed the district court’s ruling, concluding questions of fact precluded summary judgment. On further review, we affirm the court of appeals decision and reverse the district court’s grant of summary judgment.
I. Factual and Procedural Background.
The summary judgment record taken in the light most favorable to plaintiff-appellant Hoyt supports the following factual findings. Defendant-appellee Gutterz Bowl & Lounge (Gutterz) is a bowling alley and tavern located in Guthrie Center, Iowa. On March 20, 2009, Curtis Hoyt and several members of his construction crew finished work and went to Gutterz for refreshments. Curtis Knapp was also a customer at Gutterz that afternoon. Hoyt soon came to believe that Knapp was scowling at him. Hoyt and Knapp had formerly been friendly, but tension had arisen bеtween them as a result of Hoyt’s alleged mistreatment of the sister of Knapp’s friend. The record reveals no evidence tending to prove the staff of Gut-terz had any knowledge of this history between Hoyt and Knapp.
After consuming a few beers, Hoyt and coworker Chris Brittain approached and verbally confronted Knapp. Knapp did not respond and continued to scowl at Hoyt. The waitress serving Hoyt and Brit-tain observed their behavior with concern and threatened to discontinue serving them unless they calmed down. Hoyt and Brittain ignored the waitress’s warning and thus she requested and secured permission from Gutterz’s owner, Rodney Atkinson, to discontinue serving them. Atkinson, who had been preparing food in the kitchen, went to the bar area to assess the situation. Hoyt and Brittain complained to Atkinson that they were no longer being served and continued to taunt Knapp.
Shortly thereafter, Atkinson grew concerned that ah altercation might occur. He requested that Hoyt and Brittain leave.
On September 25, 2009, Hoyt filed this action alleging that Knapp and Gutterz were liable for the injuries he sustained when Knapp assaulted him. Gutterz moved for summary judgment, alleging
insufficient evidence to generate a genuine issue of material fact on the question of whether Gutterz employees failed to exercise reasonable care to discover the likelihood of harm or failed to provide an adequate warning after discovering a potential danger to Hoyt.3
We granted Hoyt’s application for interlocutory appeal, and we transferred the case to the court of appeals. The court of appeals reversed the district court’s summary judgment ruling. In reversing, the court of appeals cited our opinion in Thompson v. Kaczinski,
II. Scope of Review.
The district court’s ruling on a motion for summary judgment is reviewed for correction of errors of law. Id. at 832. A party is entitled to summary judgment when the record shows no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Iowa R. Civ. P. 1.981(3). On a motion for summary judgment, the court must: “(1) view the facts in the light most favorable to the nonmoving party, and (2) consider on behalf of the nonmoving party every legitimate inference reasonably deduced from the record.” Van Fossen v. MidAmerican Energy Co., 777 N.W.2d 689, 692 (Iowa 2009).
III. Discussion.
Hoyt contends the district court erred in concluding as a matter of law that Gutterz did not breach a duty of reasonable care under these circumstances. Further, Hoyt contends, the district court erred in its consideration of foreseeability of injury to Hoyt in making its summary judgment ruling. Gutterz urges that the summary judgment ruling should be affirmed because: (1) the district court correctly analyzed the question of duty, (2) even if a duty existed, Gutterz acted reasonably as a matter of law, and (3) Hoyt’s injuries here were, as a matter of law, outside the scope of harms typically resulting from the risks associated with Gutterz’s conduct.
Recently, in Thompson, we examined not a landowner-visitor scenario, but a scenario in which the trampoline of a landowner had been blown by high winds into a nearby roadway, obstructing the travel of and causing injury to a driver.
An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm. Thus, in most cases involving physical harm, courts need not concern themselves with the existence or content of this ordinary duty, but instead may proceed directly to the elements of liability set forth in section 6 [of the Restatement (Third) ]. The general duty of reasonable care will apply in most cases, and thus courts can rely directly on section 6 and need not refer to duty on a case-by-case basis.
Id. at 834-35 (citations and internal quotation marks omitted). We joined the drafters of the Restatement (Third) in explicitly disapproving of the use of foreseeability, or lack thereof, in making no-duty determinations. Id. at 835. Instead, we explained, no-duty rulings should be limited to exceptional cases in which “ ‘an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases.’ ” Id. (quoting Restatement (Third) of Torts: Liability for Physical & Emotional Harm § 7(b), at 77 (2010) [hereinafter Restatement (Third) ]). Such reasons of principle or policy justifying departure from a general duty to exercise reasonable care would not depend on the foreseeability of harm in any given case. Id. Instead, assessment of foreseeability should be allocated to the fact finder, as part of its determination of whether appropriate care has been exercised in any given scenario. Id.
Section 40 of the Restatement (Third) describes duty prinсiples, some of which overlap with section 7’s general duty, more
(a) An actor in a special relationship with another owes the other a duty of reasonable care with regard to risks that arise within the scope of the relationship.
(b) Special relationships giving rise to the duty provided in Subsection (a) include:
(1) a common carrier with its passengers,
(2) an innkeeper with its guests,
(3) a business or other possessor of land that holds its premises open to the public with those who are lawfully on the premises,
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Restatement (Third) § 40, at 39 (2012). Comment g explains that section 40’s contemplated duties apply even in cases involving harm caused by a third party:
The duty described in this Section applies regardless of the source of the risk. Thus, it applies to risks created by the individual at risk as well as those created by a third party’s conduct, whether innocent, negligent, or intentional.
Id. § 40 cmt. g, at 42. Therefore, comment j explains, “[b]usinesses ... who hold their land open to the public owe a duty of reasonable care to persons lawfully on their land who become ill or endangered by risks created by third parties.” Id. § 40 cmt. j, at 43-44. Section 40 thus modifies the general proposition of section 37 that actors typically owe no duty to protect victims from the conduct of third parties,
For the same reasons we found the Restatement (Third) compelling in Thompson, we find it compelling in the tavern owner-patron context. Recognizing that a duty exists whenever an actor has created a risk of harm and that risks arise out of the special relationships contemplated by section 40 encourages simplicity and predictability. Limiting no-duty rulings tо exceptional problems of policy or principle promotes judicial transparency, encouraging judges to justify in explicit terms any reasons for declining to impose a duty in a given scenario. Thompson,
The district court clearly considered the foreseeability of the assault and Hoyt’s resulting injury in granting summary judgment for Gutterz, but whether the judgment was based on a no-duty determination or a reasonable care determination is less clear.
[T]he relationship identifies a specific person to be protected and thus provides a more limited and justified incursion on autonomy, especially when the relationship is entered into voluntarily. In addition, some relationships necessarily compromise a person’s ability to self-protect, while leaving the actor in a superior position to protect that person. Many of the relationships also benefit the actor.
Restatement (Third) § 40 cmt. ⅛, at 43. We are convinced these justifications are applicable to tavern owners and decline to exempt them from the duty to exercise reasonable care. Accordingly, we conclude Gutterz owed Hoyt a duty of reasonable care under the circumstances presented here. We now turn to the question of whether Hoyt raised a genuine issue of material fact regarding the alleged breach of this duty.
B. Reasonable Care. Hoyt contends the district court erred in concluding Gutterz had not, as a matter of law, failed to exercise reasonable care. Gutterz counters that it acted reasonably.
While taverns are not insurers of patrons’ safety against third-person criminal attacks, various jurisdictions have explained taverns must make reasonable efforts to maintain order and supervise and control patrons. See, e.g., Gunter v. Vill. Pub,
acts negligently if the person does not exercise reasonable care under all the circumstances. Primary factors to con*778 sider in ascertaining whether the person’s conduct lacks reasonable care are the foreseeable likelihood that the person’s conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm.
Id. § 3, at 29.
In addition, section 19’s specific application of the section 3 principles explains that “[t]he conduct of a defendant can lack reasonable care insofar as it foreseeably combines with or permits the improper conduct of the plaintiff or a third party.” Id. § 19, at 215. Section 19 sets forth the following examples of situations where the defendant may create or increase the likelihood of injury by a third person:
For example, the defendant’s conduct may make available to the third party the instrument eventually used by the third party in inflicting harm; or that conduct may bring the plaintiff to a location where the plaintiff is exposed to third-party misconduct; or that conduct may bring the third party to a location that enables the third party to inflict harm on the plaintiff; or the defendant’s business operations may create a physical environment where instances of misconduct are likely to take place; or the defendant’s conduct may inadvertently give the third party a motive to act improperly.
Restatement (Third) § 19 cmt. e, at 218.
That a tavern may create a physical environment where instances of misconduct are likely to take place raises converging questions of reasonable care and the appropriate scope of liability for the defendant. Restatement (Third) § 19 cmt. c, at 216-17. In a tavern, for example, the environment may foreseeably bring about the misconduct of a third party, resulting in injury to a plaintiff. While the foreseeability of misconduct raises an issue of the appropriate level of care, it also raises the issue of whether the harm suffered by the plaintiff is within the range of risks that may make the defendant’s conduct negligent in failing to exercise that care. Id. In considering this overlap, we have previously observed that where liability is based on the intentional acts of a third party, we must take care to avoid requiring excessive precaution relating to these acts, even when the improper conduct may be regarded as foreseeable in the abstract. Brokaw v. Winfield-Mt. Union Cmty. Sch. Dist.,
In Brokaw, for example, we adjudicated a claim that a school district had failed to control the conduct of оne of its students. Id. at 388. The plaintiff, a high-school basketball player who alleged he was injured by an opposing player during a game, appealed a decision in favor of the defendant school district after a bench trial. Id. The plaintiff argued the alleged assault by the defendant district’s student athlete was foreseeable because the student athlete had taken a swing during the game at another player within view of his
By contrast, section 19 of the Restatement (Third) illustrates scenarios where an actor’s knowledge of the risk of negligent or intentional third-party conduct may provide a basis for liability as follows:
[A]n actor engaging in certain conduct can foresee a considerable risk, either on account of the general prospect of other persons’ negligence during the relevant frame of time and place, or because the actor has knowledge of the propensities of the particular person or persons who are in a position to act negligently.
Restatement (Third) § 19 cmt. f at 219.
Here, the district court found that Gut-terz exercised reasonable care as a matter of law, based largely on the notion that the information available to Gutterz at the time failed to suggest any possibility of harm to Hoyt. Hoyt and Brittain initiated the verbal conflict with Knapp, reasoned the court, and thus, Gutterz сould expect harm to Knapp but had no reason to expect harm to Hoyt. Mindful of section 19’s instructions that foreseeability should be evaluated in the relevant frame of time and place, and that foreseeability may arise in environments where instances of physical misconduct are likely to take place, we disagree that the record established as a matter of law that an injury to Hoyt was unforeseeable. Gutterz’s duty of reasonable care applied “regardless of the source of risk.” Id. § 40 cmt. g, at 42. The duty applied to risks arising from Hoyt’s conduct, as well as those created by a third party’s conduct, whether innocent, negligent, or intentional. Id. Indeed, section 19 confirms that the risk rendering a defendant’s conduct negligent may be the “risk that potential victims will act in ways that unreasonably imperil their own safety.” Id. § 19 cmt. b, at 216.
Gutterz personnel had observed the conflict developing between Hoyt, Brittain, and Knapp, and had observed all three consuming alcohol in the bar that afternoon. Hostilities escalated such that the waitress felt compelled to seek and obtain Atkinson’s permission to discontinue alcohol service to Hoyt and Brittain. Atkinson ordered Hoyt out of the bar as a result of his concern that a physical altercation between Hoyt and Knapp might occur. Moreover, bars are business venues in which alcohol-fueled disturbances causing injury and even death are known to occur. See Delgado v. Trax Bar & Grill,
Although the district court did not clearly address whether the record established reasonable care by Gutterz, Hoyt contends that Gutterz could have exercised reasonable care by any of the following: (1) calling the police when the conflict developed, (2) escorting Hoyt to his vehicle in the parking lot, or (3) verifying that Knapp was not lying in wait in the parking lot. Gutterz contends that it did escort Hoyt to his vehicle, and that its precautions here were reasonable as a matter of law. While resolution of the factual dispute is best left to the fact finder, we observe that the resolution may have significant bearing on the reasonable care determination. We emphasize that our recognition of a duty in this case does not give rise to strict or absolute liability on the part of Gutterz. Instead, to fulfill its duty in this context, Gutterz was merely required to employ reasonable safety precautions. It may be that quick intervention was all that was necessary under the circumstances. See, e.g., Collins v. Shepherd,
C. Scope of Liability. Although the district court’s ruling did not address the issue of Gutterz’s scope of liability, Gutterz relies on it on appeal as an alternative ground for affirming the ruling. See Pitts v. Farm Bureau Life Ins. Co.,
Although we have concluded Gutterz owed Hoyt a duty of reasonable care here, we have previously noted that tort law will not always impose liability on an actor for all harm factually caused by an actor’s conduct. Thompson,
Further, in special relationship cases, an actor’s scope of liability may include harms that are different from the harms risked by the actor’s failure to exercise reasonable care to ameliorate or eliminate risks that the special relationship requires the actor to attend to. Restatement (Third) § 29 cmt. r, at 511. In other words, as a result of the bar-patron relationship, a range of risks may arisе for which the bar has a duty of reasonable care, and in addition, a separate range of risks may arise to the extent the bar’s conduct foreseeably combines with or permits the improper conduct of a third party. Id. Thus, as noted in our reasonable care analysis, foreseeability is relevant in the scope determination, and we have observed that the fact finder, in determining the appropriate scope of liability, must determine whether the type of harm that occurs is among those reasonably foreseeable potential harms that make an actor’s conduct negligent. Thompson,
“must initially consider all of the range of harms risked by the defendant’s conduct that the jury could find as the basis for determining [the defendant’s] conduct tortious. Then, the court can compare the plaintiffs harm with the range of harms risked by the defendant to determine whether a reasonable jury might find the former among the latter.”
Id. at 838 (quoting Restatement (Third) § 29 cmt. d, at 496). No straightforward rule can be provided to determine the appropriate level of generality or specificity to employ in characterizing the harms. Restatement (Third) § 29 cmt. i, at 504. Where there are contending plausible characterizations of the range of reasonably foreseeable harms arising from the defendant’s conduct leading to different outcomes and requiring the drawing of an arbitrary line, the case should be left to the judgment and common sense of the fact finder. Id.
At first blush, the relevant inquiry here given the parties’ contentions might appear to be the appropriate level of generality with which to characterize the harm that occurred. According to Gutterz, the relevant range of risks did not include the risk that a verbally aggressive patron in a bar might suffer retaliatory harm from a patron who showed no signs of physical aggression inside the bar. Hoyt, on the other hand, characterizes the relevant range of risks more generally and contends the risk of a physical altercation between bar patrons who had engaged in
Finally, we think it prudent to observe that the scope-of-liability standard is flexible enough to accommodate fairness concerns raised by the specific facts of a case. Thompson,
IV. Conclusion.
The district court erred in concluding that Gutterz, as a matter of law, could not have breached its duty of reasonable care. In addition, a reasonable fact finder could concludе that Hoyt’s harm was within the appropriate scope of liability for Gutterz. Genuine issues of material fact remain regarding each element of Hoyt’s negligence claim and summary judgment was therefore inappropriate. Accordingly, we reverse the district court’s dismissal of this claim and remand this case for trial.
DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED.
Notes
. Atkinson’s account suggests he escorted the men to their trucks in the parking lot and returned to the kitchen. Hoyt and Brittain instead recalled that after Atkinson ordered them to leave, they exited the tavern and walked themselves to their vehicles.
. The police ultimately charged both Hoyt and Knapp with disorderly conduct as a result of the incident.
. In reaching its conclusion, the court applied section 344 of the Restatement (Second) of Torts, entitled "Business Premises Open to Public: Acts of Third Persons оr Animals.”
. Section 37 states a principle complementary to the general duty principle of section 7: there is no duty of care when another is at risk for reasons other than those created by an actor’s conduct. As contemplated by sections 7 and 19, an actor's conduct may create risk by exposing another to the improper conduct of third parties. All risks created by an actor's conduct or course of conduct must be evaluated in determining whether the section 37 principle applies.
. As noted above, the district court specifically found there was insufficient evidence to raise a fact question regarding whether Gut-terz employees had exercised reasonable care. In describing the applicable law, however, the court explained that "in construing the duty of the possessor of land the Iowa Supreme Court, in Martinko v. H-N-W Assocs.,
. We note that in some bar owner-patron cases, the bar’s duty may be purely affirmative because the bar has had no role in creating the risk of harm that arises. In other cases, the bar may play a role in creating the risk, whether as illustrated in section 19, or in some other manner. In those cases, the source of the duty may be the general duty described in Thompson and section 7 of the Restatement (Third). Thompson,
Dissenting Opinion
(dissenting).
I respectfully dissent. I agree with the dissenting judge on the court of appeals that summary judgment was correctly granted by the district court. Negligence cases in general and bar fights in particular are poor candidates for summary judgment. But, here, it is undisputed the bar owner kicked out the troublemaker. There was no reason to eject the well-behaved victim of the troublemaker’s verbal abuse or call the police before the quiet patron unexpectedly jumped the troublemaker in the parking lot. The evidence is insufficient to raise a jury question on negligence or scope of liability. Uncontro-verted facts establish the defendant acted reasonably as a matter of law.
There is no evidence or claim that prior fights or third-party criminal acts showed a need for a bouncer or other security at Gutterz. Bars are not insurers strictly liable for injuries on their premises inflicted by others. So, what happened that allows Hoyt to sue Gutterz for a beating inflicted on him by Knapp in the parking lot? Although accounts of the fight outside differ, what happened inside Gutterz is undisputed.
By all accounts, Hoyt was the aggressor inside Gutterz, while Knapp remained calm. The two people working at Gutterz Bowl & Lounge in Guthrie Center, owner Rod Atkinson and waitress Sarah Greene, knew nothing about any bad blood be
Having kicked out the troublemakers— Hoyt and his companion — what else should Gutterz have done? How was the bar negligent? The majority concludes a jury could find Gutterz negligent for failing to call the police. But, no crime had (yet) been committed, and Hoyt exited the bar when told to leave. Knapp was not threatening anyone or misbehaving in any way. At that point, why call the police? From Gutterz’s standpoint, the incident had been defused by Hoyt’s departure. The majority also argues Atkinson should have done more to ensure Hoyt left the parking lot safely. This theory assumes Atkinson reasonably should have foreseen Knapp would attack Hoyt. Knapp had not so much as even raised his voice. The majority fails to cite a single case from any jurisdiction supporting a property owner’s liability for a third-party assault under equivalent facts.
This сase is quite a bit different from the Iowa precedent holding a jury question existed on a bar’s negligent failure to prevent an assault. See, e.g., Regan v. Denbar, Inc.,
Our court’s recent adoption of sections of the Restatement (Third) of Torts is not the death knell for summary judgments in negligence cases. See, e.g., McCormick v. Nikkel & Assocs., Inc.,
The duty of care invoked by the majority today is found in section 40(b)(3) of the Restatement (Third). The majority relies on comment j, which recognizes that businesses open to the public “owe a duty of reasonable care to persons lawfully on their land who become ill or endangered by risks created by third parties.” Restatement (Third) of Torts: Liab. for Physical <& Emotional Harm § 40 cmt. j, at 43^44 (2012). The duty owed is one of reasonable care. To raise a jury question, there must be sufficient evidence that a jury could find defendant’s conduct breached this duty, that is, the defendant acted negligently or unreasonably. Such evidence is lacking here. The drafters of the Restatement (Third) confirm that, when “reasonable minds can reach only one conclusion,” the court may enter a directed verdict or judgment as a matter of law that defendant is “free of negligence.” Id. § 8 cmt. b, at 103-04 (2010).
The drafters also admonished that “the prospect of criminal conduct is significantly lower than the prospect of negligent conduct.” Id. § 19 cmt. f at 220. Our own precedent applying the Restatement (Third) makes clear the question is whether Gutterz should have foreseen that Knapp would assault Hoyt. In Brokaw v. Winfield-Mt. Union Community School District, a student, McSorley, assaulted Brokaw, an opposing player during a basketball game.
I agree with the dissenting judge on the court of aрpeals, who concluded the “evidence does not make it foreseeable Knapp, who was causing no trouble, would harm Hoyt.” Similarly, the district court correctly concluded:
The circumstances may have made it foreseeable that Hoyt might harm Knapp. The circumstances known to Atkinson did not make it foreseeable that Knapp might harm Hoyt.
In the case at bar there was no evidence of a potential danger to Hoyt from Knapp. Because of that total lack of evidence, a fact question of whether Gut-terz exercised reasonable care to discover the existence of a danger is not gen*785 erated. Just as in Knebel v. Ka-Boos Bar & Grill, [680 N.W.2d 379 (Iowa App.2004)], in the instant case “the owners did not know and had no reason to know that the assault was about to occur.” Accordingly, summary judgment is appropriate.
Under analogous circumstances, оther appellate courts have affirmed directed verdicts or summary judgments when the assault that occurred was not reasonably foreseeable. See, e.g., Boone v. Martinez,
Summary judgment is also appropriate in this case on the scope of liability. “Under the Restatement (Third) analysis, ... something [defendant] did or did not do must have increased the risk” to plaintiff. Royal Indent. Co. v. Factory Mut. Ins. Co.,
In Brokaiv, we admonished that:
Where liability is premised on the negligent or intentional acts of a third party ..., “the law itself must take care to avoid requiring excessive precautions of actors relating to harms that are immediately due to the improper conduct of third parties, even when that improper conduct can be regarded as somewhat foreseeable.”
For these reasons, I would affirm the district court’s summary judgment in favor of Gutterz.
CADY, C.J., and MANSFIELD, J., join this dissent.