Lead Opinion
Mitchell J. Fagan brought this tort action for injuries received while a patron at Atnalta’s establishment, The Beer Mug, and appeals the grant of appellee’s motion for summary judgment. On the evening of February 26, 1985, Fagan was one of a few customers in The Beer Mug, where he was dating the waitress. The bar was staffed by a female bartender, a female waitress, and a cook. Four customers were playing pool in an area adjacent to, but separate from, an area where Fagan was having a drink. An altercation occurred in the pool room area and the female bartender and waitress attempted to get those involved to leave via the back door. While both sides were still talking at the door, Fagan and another customer by the name of “Bob” gratuitously moved to a place behind the two women. The waitress went to call the police while the bartender tried to escort the belligerent customers outside. One of the men being forced to leave grabbed the bartender by the collar. Fagan grabbed the bartender from the rear to keep her from being pulled outside the bar. The men being forced to leave then turned their attention to the interloper and pulled him outside and administered a severe beating, even though “Bob” tried to assist him. The bartender was emphatic that she did not ask Fagan or Bob to assist her. She was asked if she was glad he was there and responded: “Not really ‘cause if he hadn’t have been there he wouldn’t have gotten beat up so bad.”
Appellant contends the defendant was negligent in failing to provide for the safety, security, and welfare of its patrons in the absence of security personnel or even a male employee, and that a history of assault incidents and violent patrons at the bar were evidence of a lack of care owed under OCGA § 51-3-1. Appellee argues that appellant had equal knowledge of the prior assaults and by voluntarily acting in view of his knowledge he assumed the risk incident to the known condition. Appellant knew The Beer Mug was staffed by the two women. He was aware of the prior incidents involving assaults and had been told of other assaults.
Although issues of negligence, lack of care in avoiding the negligence of others, lack of care for one’s own safety, and assumption of the risk are ordinarily not susceptible to summary adjudication, either for or against the complainant (Simmons v. Classic City Beverages,
Appellant was asked: “Q. . . . when you approached that group you knew, as you’ve already stated, that if a fight-developed you and Bob would be in big trouble, as you’re [sic] phrased it? A. Uh-huh (affirmative). Q. Is that yes? A. Yes. Q. And by big trouble you meant that you felt that you and Bob could be hurt if such a fight took place; is that fair to say? A. Yes.” From appellant’s own testimony, only one conclusion is permissible. He saw the situation, recognized the danger to himself, and voluntarily and deliberately thrust himself into the melee, without being asked.
“ ‘The business invitee on private premises assumes the risk of danger of which he knows about and fully comprehends, or which is sufficiently obvious. [Cit.]’ ‘That which a plaintiff may not do without barring himself from recovery is to accept a risk so obvious that taking it amounts to failure to exercise ordinary care for his own safety, [cit.], or recklessly to test an observed and clearly obvious peril, [cit.]’ [Cit.] ‘ “A person cannot undertake to do an obviously dangerous thing . . . without himself being guilty of such lack of due care for his own safety as to bar him from recovery if he is injured. . . .” ’ ” Holbrook v. Prescott,
We find the evidence clear and palpable that the appellant assumed the risk and the trial court did not err in granting summary judgment to appellee.
Judgment affirmed.
Dissenting Opinion
dissenting.
I respectfully dissent.
1. The majority has decided this case upon an issue not within the contemplation of the parties or the trial court, which in any case should not have been decided as a matter of law and the issues upon which a determination was made below were properly for a jury.
Defendant urged that the record shows plaintiff had equal knowledge of the prior assaults. Therefore, it reasons, he cannot recover for injuries received when he went to the bar, even if defendant was negligent (which it denies). The trial court agreed and, in granting summary judgment, concluded as a matter of law that plaintiff’s knowledge of the dangerous condition was at least equal to that of defendant so that by voluntarily going to the bar he is foreclosed from recovery.
Defendant did not argue, nor did the court rule, that there was “equal knowledge” insofar as the danger of becoming involved in the particular incident is concerned, or that in attempting to assist the bartender the patron assumed the risk of injury. The sole focus of defendant’s position and the trial court’s ruling is that plaintiff was equally aware of the conditions under which the bar operated and the risks created by them but assumed these risks by visiting the bar that night.
While at trial the burden of proof as to each element of negligence would be upon plaintiff, on motion for summary judgment the burden was upon defendant as movant to negate at least one of the essential elements. Tolbert v. Tanner,
The majority takes that version of the proof most favorable to the movant. But a question is presented as to whether Fagan assumed the risk by the act of walking, slowly and quietly, across the floor to
The majority appears to hold that when one individual attempts to aid another, even in the most circumspect manner, assumption of the risk occurs as a matter of law. To the contrary, one acting to save another “will not be barred on the ground that he did not exercise ordinary care for his own safety or even that he assumed the risk of injury to himself unless his actions are so imprudent and beyond what a person in the same circumstances might be expected to do that they must be classified as reckless or wanton.” Lorie v. Standard Oil Co.,
This question should be determined by a jury after a trial where the facts are fully developed and the issues clearly drawn. Yet it is being precluded by an appellate decision on an issue neither raised, expressly or impliedly, by defendant nor considered by the trial court in making its ruling.
2. On the issues actually presented to this court, the grant of summary judgment should be reversed.
a. The basis for liability of the owner of property on which an invitee is injured is the superior knowledge by the owner of the existence of a condition which may subject the invitee to an unreasonable risk of harm. Burdine v. Linquist,
Fagan was aware of some prior incidents at the Beer Mug, but there is no indication that he knew that they were numerous, nor did he know their extent or ferocity. On the other hand, police reports of calls to the premises and an affidavit of a former bartender of the Beer Mug substantiated that defendant had notice of the dangerous condition persisting. Whether plaintiff had equal knowledge of the danger of patronizing the bar that night is a jury question, because it
Even if he had equal knowledge in the legal sense, the question remains whether plaintiff exercised ordinary care in going to the bar anyway. “If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover.” OCGA § 51-11-7. It is up to a jury to determine whether ordinary care would require not going to the bar. Powell v. Barker,
b. The final question is whether the evidence shows that defendant/movant has negated at least one of the essential elements of plaintiff’s claim. Tolbert v. Tanner, supra. Defendant contends that there is no evidence of a dangerous condition of which it had knowledge.
This must be considered in the context of its legal duty. OCGA § 51-3-1 provides that the owner or occupier of land is liable to invitees for injuries caused by the owner’s failure to exercise ordinary care in keeping the premises and approaches safe. In order to recover for a dangerous condition created by third persons, plaintiff must prove defendant knew, or should have known, of the condition. Veterans Organization v. Potter,
Ordinarily, an independent criminal act is treated as the proximate cause and insulates any negligence of the defendant. Warner v. Arnold,
Because knowledge of danger by the occupier of the premises is a prerequisite to recovery, plaintiff must show notice by a substantially similar incident of which the occupier was aware. Donaldson v. Olympic Health Spa,
The bartender’s affidavit recited: that he was 6’4” tall and weighed between 240 and 250 pounds; that he witnessed over twenty altercations at the Beer Mug during his two-year employment; that on two separate occasions he was knocked or thrown to the ground, once he had ash trays and bar stools thrown at him necessitating medical treatment, and another time he had to pull a gun to get individuals out of the bar; that the management would not allow female employees to remain without a male accompanying them; that he barred some particularly rough troublemakers but was told by management that he was running off too many customers and they should be allowed back.
The next point is that it is not necessary that defendant should have anticipated the particular consequences which ensued as a result of plaintiff’s patronizing the bar under the conditions it presented. “It is sufficient, if in ordinary prudence [it] might have foreseen that some injury would result from [its] act or omission, or that consequences of a generally injurious nature might result.” Williams v. Grier,
There is evidence that defendant had reasonable grounds for apprehending that criminal assaults would be committed. McClendon v. C & S Nat. Bank,
The evidence thus far presented in the case, viewed in a light most favorable to plaintiff, does not demand a finding that defendant could not reasonably foresee the attack that occurred or that with such foresight it exercised the care required by OCGA § 51-3-1.
I am authorized to state that Presiding Judge McMurray joins in this dissent.
Dissenting Opinion
dissenting.
“In the days of chivalry and knighthood, men of courage would joust for the love of a woman. Damsels in distress would be rescued by fearless knights. It was not only a duty, but an honor to give one’s life for one in imminent danger.
“The times have changed, like all things, and civilization bellows that chivalry is lost and gone, of another era. The final imprimatur that chivalry is lost in civilization is the courts of our society interpreting the laws to approve of cowardice and strike down the actions of a gallant knight in modern times, for almost having lost his life, in the aid of a damsel in distress.”
So begins the appellant’s ardent and articulate impassioned brief in support of his motion for rehearing. While the appellant’s nostalgic attitude appears to abandon the ancient adage that “virtue is its own reward” in favor of a suit for damages by a patron against “The Beer Mug,” it nevertheless provokes reconsideration of our original decision in the appeal. Upon reconsideration, I am persuaded that the doctrine of rescue, as stated in Lorie v. Standard Oil Co.,