Mathilda Hansen Minto, et al., Appellants, vs. Veterans of Foreign Wars, et al., Defendants, Premier Alarm and Security, Inc., Respondent, and Robert W. Earl, Appellant, vs. Veterans of Foreign Wars, et al., Defendants, and Premier Alarm and Security, Inc., defendant and third party plaintiff, Respondent, Luis Alvarez, Third party defendant.

Mathilda Hansen Minto, et al., Appellants, vs. Veterans of Foreign Wars, et al., Defendants, Premier Alarm and Security, Inc., Respondent, and Robert W. Earl, Appellant, vs. Veterans of Foreign Wars, et al., Defendants, and Premier Alarm and Security, Inc., defendant and third party plaintiff, Respondent, Luis Alvarez, Third party defendant. A04-2422, Court of Appeals Unpublished, August 23, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2422

 

Mathilda Hansen Minto, et al.,

Appellants,

 

vs.

 

Veterans of Foreign Wars, et al.,

Defendants,

 

Premier Alarm and Security, Inc.,

Respondent,

and

Robert W. Earl,

Appellant,

 

vs.

 

Veterans of Foreign Wars, et al.,

Defendants,

and

Premier Alarm and Security, Inc., defendant and third party plaintiff,

Respondent,

 

Luis Alvarez,

Third party defendant.

 

 

Filed August 23, 2005

Affirmed

Toussaint, Chief Judge

 

Mower County District Court

File Nos. C4-02-151 and C2-02-133

  Peter D. Plunkett, Plunkett & Associates, Inc., 107 West Oakland Avenue, P.O. Box 463, Austin, MN 55912 (for appellants)

 

Jeanette Patricia Cogelow, Steve E. Tomsche, Tomsche, Sonnesyn & Tomsche, P.A., 610 Ottawa Avenue North, Minneapolis, MN 55422 (for respondents Veterans of Foreign Wars, Veterans of Foreign War Post No. 1216)

 

James M. Mahoney, Mahoney, Dougherty and Mahoney, 801 Park Avenue, Minneapolis, MN 55404-1189 (for respondent Premier Alarm and Security, Inc.)

 

            Considered and decided by Wright, Presiding Judge; Toussaint, Chief Judge; and Schumacher, Judge.

U N P U B L I S H E D  O P I N I O N

 

TOUSSAINT, Chief Judge

 

            Appellants Robert W. Earl and Mathilda Hansen Minto argue that the district court erred in granting summary judgment on negligence claims arising out of a fight that occurred during a dance at respondent Veterans of Foreign Wars Post No. 1216 (VFW).  Respondent Premier Alarm Security, Inc. provided security for the dance.  Because the district court properly concluded that as a matter of law the fight was not foreseeable, we affirm.

D E C I S I O N

            On appeal from a grant of summary judgment, this court asks whether there are any genuine issues of material fact and whether the district court erred in applying the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  The district court may grant a motion for summary judgment when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  This court views "the evidence in the light most favorable to the party against whom judgment was granted."  Id.

            To establish a negligence claim, a plaintiff must show a duty of care, a breach of that duty, causation, and injury.  Spitzak v. Hylands, Ltd., 500 N.W.2d 154, 156 (Minn. App. 1993), review denied (Minn. July 15, 1993).  If the record lacks proof on any of the requirements of a negligence claim, a defendant is entitled to summary judgment.  Funchess v. Cecil Newman Corp., 632 N.W.2d 666, 672 (Minn. 2001).

            Generally, the existence of a legal duty is an issue for the courts to decide as a matter of law.  Larson v. Larson, 373 N.W.2d 287, 289 (Minn. 1985).  Whether a legal duty exists depends on the relationship between the parties and the foreseeability of harm to others.  Erickson v. Curtis Inv. Co., 447 N.W.2d 165, 168-69 (Minn. 1989).

First we examine the relationship between the parties.  Premier argues that its relationship to appellants did not give rise to a legal duty.  We disagree.  The general common-law rule is that no person has a duty to protect another from harm caused by a third party's conduct.  Id. at 673.  But a duty to protect may be found when a special relationship exists between the parties.  Erickson, 447 N.W.2d at 168.  Premier was hired to provide security for the dance, and, based on that relationship, owed a duty to persons at the dance to use the degree of care that a reasonably prudent professional security firm would use.  See id. at 170-71 (concluding that a security firm hired to patrol a parking ramp owed a duty to parking-ramp customers to use that degree of care that a reasonably prudent professional security firm would use).

            Appellants were injured during a fight that occurred at a dance at the VFW.  The dance was the fourth in a series of dances organized by Luis Alvarez, a promoter of dances for the local Hispanic community.  The fight broke out during the last dance of the evening, just before midnight, and involved as many as 100 people.  There had been no unruly behavior at the first three dances on other evenings.  But a fight did break out in the VFW parking lot during one of the dances a week earlier, police were called, and a knife was taken away from someone.

            Cynthia Drake, who was working as a bartender, testified that "[e]verything was going smoothly" and "[p]eople were having a good time until the fight broke out."  The first sign of trouble that Drake noticed was when people started removing their stocking caps and baseball hats to reveal bandanas.  Drake testified that "[j]ust a few minutes" elapsed between when she saw the hats being removed and when the fight broke out.

Darrow Lee Davison, a security agent assigned to work at the dance, testified that at about 11:45 p.m., when the last dance was called, he noticed that people had grouped to both sides of the room, which appeared to be normal, because the dance was ending soon, and people were packing up their belongings and getting ready to leave.  He testified that at 11:50 or 11:55 p.m., "all hell broke loose."  It was at that point that he saw bandanas, signifying gang colors, hanging out of people's back pockets.  Davison testified that things were "quiet until just immediately before this fight broke out" and that the situation escalated from calm to a riot "almost instantaneously."  Walter Barfknecht, the other security agent assigned to work at the dance, also testified that everything was going smoothly until right up to the point when the fight broke out and he described the fight as occurring suddenly and without warning.

            Appellants argue that the fight was foreseeable because Premier knew that the dance would be attended by young people who would be consuming alcohol and because of the parking-lot incident during the previous week's dance.  These assertions are unsupported by facts in the record.  Alvarez told Daniel Walker, president and CEO of Premier, that the dances would be attended by families with young children, rather than by teenagers or young adults.  There is also no evidence that the parking-lot incident was related to the fight that occurred at the VFW.

            Appellants argue that the fight was foreseeable because people were displaying gang colors earlier in the evening.  Drake estimated that two or three minutes elapsed between the time that she saw the colors and when the fight broke out, but she did not testify that she alerted the security officers to the display of colors.  Appellants provide no citation to the record to support their assertions that gang colors were displayed more than a few minutes before the fight broke out or that the security officers were warned about the colors in time to take preventive security measures.  See Minn. R. Civ. App. P. 128.03 (whenever a reference is made in a brief to any part of the record, a citation shall be made to the record or to the page of the appendix or supplemental record where the particular part of the record is reproduced).

Although the record contains evidence that some people were highly intoxicated and evidence of drug use in the bathroom, the record contains no evidence of prior unruly behavior by anyone.  See Boone, 567 N.W.2d at 511 (affirming directed verdict for bar when evidence of foreseeability was limited to testimony that person looked both like he was obviously intoxicated and angry).  The record shows that the fight broke out in a very short time period, within at most two to three minutes, following a relatively calm and uneventful dance.  Cf. Windorski v. Doyle, 219 Minn. 402, 406, 18 N.W.2d 142, 145 (1945) (reversing directed verdict for bar when argument and loud talking had been going on for eight or ten minutes before assault).  Contrary to appellants' assertion, the demographics of people attending the dance alone were insufficient to establish foreseeability.  See Boone, 567 N.W.2d at 511 (holding that despite an employee's testimony that he knew of an earlier fight occurring outside the bar, which the perpetrator in that case admitted had been started by him, there was not enough evidence to present a jury with a fact question concerning whether the bar had notice of that perpetrator's violent tendencies); K.L. v. Riverside Med. Ctr., 524 N.W.2d 300, 303 (Minn. App. 1994) (holding that sexual assault on hospital patient was not foreseeable in the absence of previous similar incidents or suspicious behavior by assailant on prior occasions), review denied (Minn. Feb. 3, 1995); Spitzak,500 N.W.2d at 158 (holding that attack at apartment complex was not foreseeable in the absence of evidence of similar incidents at the complex or that the complex was known as a high-crime location).

            The district court properly determined that the incident was not foreseeable as a matter of law.  Because we affirm the foreseeability determination, we do not reach the remaining issues raised by the parties.

            Affirmed.