Dawna Burns v. Boot Scooters, Inc.

Dawna BURNS v. BOOT SCOOTERS, INC.

CA 97-724                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                       Divisions I and II
                Opinion delivered March 25, 1998


1.   Motions -- directed verdict -- factors to be considered by trial court. --
     In ruling on a motion for a directed verdict, the trial court
     must view the evidence that is most favorable to the nonmoving
     party and give it its highest probative value, taking into
     account all reasonable inferences deducible from it; if the
     evidence is so insubstantial as to require that a jury verdict
     for the nonmoving party be set aside, then the motion should
     be granted; if, however, there is substantial evidence to
     support a jury verdict for the nonmoving party, then it should
     be denied.

2.   Evidence -- substantial evidence defined. -- Substantial evidence is
     that which is of sufficient force and character that it will
     compel a conclusion one way or another; it must force or
     induce the mind to pass beyond a suspicion or conjecture.  

3.   Negligence -- establishment of prima facie case. -- To establish a
     prima facie case of negligence, a plaintiff must show that
     damages were sustained, that the defendant breached the
     standard of care, and that the defendant's actions were the
     proximate cause of the damages.

4.   Negligence -- duty of care owed by drinking establishment to patrons. --
     While not an insurer of the safety of his patrons, a tavern
     keeper or bar operator is under the duty to use reasonable
     care and vigilance to protect guests or patrons from
     reasonably foreseeable injury, mistreatment, or annoyance at
     the hands of other patrons; negligence may consist of failure
     to take appropriate action to eject persons of undesirable
     character from the premises or knowingly permitting
     irresponsible, vicious, or drunken persons to be in and about
     the premises or failure to maintain order and sobriety in the
     establishment; though not required to protect the patrons of
     a bar or tavern from unlikely dangers or improbable harm, the
     proprietor is required to take affirmative action to maintain
     order when harm to patrons is reasonably foreseeable and
     whenever the circumstances indicate that the danger of harm to
     patrons by other patrons should have been anticipated by one
     reasonably alert.

5.   Negligence -- substantial evidence showed breach of duty to use reasonable
     care to protect patrons. -- Where the person being ejected from
     appellee's establishment was beaten by appellee's security
     personnel as they attempted to remove him but that another
     party was able to remove the person simply by restraining him;
     where the beating was in contravention of appellee's
     instructions that allowed the use of physical force only in
     self-defense and only to restrain the attacker; and where the
     instructions further required security personnel to calm down
     any disturbance as quickly and quietly as possible, the
     appellate court determined that reasonable minds could
     conclude that appellee's security personnel not only failed to
     calm down this disturbance but in fact exacerbated it through
     use of excessive force and held that there was substantial
     evidence to show that appellee breached its duty to use
     reasonable care to protect its patrons.

6.   Torts -- liability -- effect of intervention of independent agent. --
     While the intervention of an independent agency ordinarily
     relieves the first wrongdoer of liability, the original
     wrongdoer will not be relieved of liability if the result or
     act of the independent agent could have been anticipated. 

7.   Negligence -- substantial evidence showed appellee's failure to use
     reasonable care was proximate cause of appellee's damages -- reversed and
     remanded. -- There was substantial evidence to show that
     appellee's failure to use reasonable care was the proximate
     cause of appellant's damages where appellant testified that
     she was knocked down and stepped on by persons following in
     the wake of the disturbance; reasonable persons could have
     properly concluded that appellee should have anticipated that
     the method employed to eject the disorderly patron could cause
     other patrons to be trampled by the crowd and that appellee's
     negligence definitely increased the likelihood of such an
     occurrence; the matter was reversed and remanded.


     Appeal from Garland Circuit Court; Walter Wright, Judge;
reversed and remanded.
     Gary Eubanks & Associates, by: Robert S. Tschiemer, for
appellant.
     Q. Byrum Hurst, for appellee.

     John Mauzy Pittman, Judge.
     Appellant in this tort case was injured during an altercation
at the appelleeþs country-and-western bar and dancing club.  She
filed suit against the appellee alleging that her injuries resulted
from appelleeþs negligence in failing to provide adequate security
personnel and failing to control a fight between some other
patrons.  After she presented her case, the appellee made a motion
for directed verdict, which was granted by the trial court.  From
that decision, comes this appeal.
     For reversal, appellant contends that the trial court erred in
granting appelleeþs motion for a directed verdict.  We agree, and
we reverse and remand.
     In ruling on a motion for a directed verdict, the trial court
must view the evidence that is most favorable to the nonmoving
party and give it its highest probative value, taking into account
all reasonable inferences deducible from it.  Carton v. Missouri
Pacific Railroad Company, 303 Ark. 568, 798 S.W.2d 674 (1990).  If
the evidence is so insubstantial as to require that a jury verdict
for the nonmoving party be set aside, then the motion should be
granted.  If, however, there is substantial evidence to support a
jury verdict for the nonmoving party, then it should be denied. 
Id.  Substantial evidence is that which is of sufficient force and
character that it will compel a conclusion one way or another.  It
must force or induce the mind to pass beyond a suspicion or
conjecture.  Id.  To establish a prima facie case of negligence, a
plaintiff must show that damages were sustained, that the defendant
breached the standard of care, and that the defendant's actions
were the proximate cause of the damages.  Union Pacific Railroad
Company v. Sharp, 330 Ark. 174, 952 S.W.2d 658 (1997).
     Viewing the evidence, as we must, in the light most favorable
to the appellant, the record shows that appellant and her date,
Larry Neyland, were at Boot Scooters on June 4, 1994.  A fight
broke out while appellant was on the dance floor and Mr. Neyland
was seated at a table.  Although the fight broke out at the other end of the building from Mr. Neylandþs table, it soon moved in his
direction towards the exit.  Mr. Neyland described the fight as þa
herd of peopleþ coming his way that þlooked like a rugby match.þ 
Mr. Neyland turned in his seat and backed up against the table as
far as possible when the fight reached him.  Three men, including
at least two security men, were escorting another man to the door. 
They were beating him as they did so, including blows to his face
with a flashlight.  The security men were not controlling the man
being ejected who, although bleeding profusely, began kicking Mr.
Neyland.  To defend himself, Mr. Neyland picked the man being
ejected up by the collar and moved him to the door.  The girlfriend
of the man being ejected picked up a chair and attempted to hit Mr.
Neyland with it.  Appellant left the dance floor as she saw the
fight approaching the table where Mr. Neyland was seated.  As the
fight passed her, she saw a woman trying to hit Mr. Neyland from
behind with a chair.  Appellant, who knew the woman, took the
chair, put it down, and tried to calm the woman.  Someone in the
crowd then pushed appellant into the woman.  Appellant fell, and
someone in the crowd stepped on her ankle and broke it.  Appellant
suffered severe pain and was taken to the emergency room.  She was
hospitalized, underwent surgery, lost a significant amount of
wages, and continues to feel the effects of her injury.
     We think it clear that there was substantial evidence that
appellant sustained damages.  With regard to the standard of care
owed by a drinking establishment to its patrons, our supreme court
has stated that:
          The weight of authority supports the view that
          while a tavern keeper or bar operator is not
          an insurer of the safety of his patrons, he is
          under the duty to use reasonable care and
          vigilance to protect guests or patrons from
          reasonably foreseeable injury, mistreatment or
          annoyance at the hands of other patrons.
          Negligence in such a situation may consist of
          failure to take appropriate action to eject
          persons of undesirable character from the
          premises or knowingly permitting
          irresponsible, vicious or drunken persons to
          be in and about the premises or failure to
          maintain order and sobriety in the
          establishment.  Of course the proprietor is
          not required to protect the patrons of a bar
          or tavern from unlikely dangers, or improbable
          harm, but he is required to take affirmative
          action to maintain order when harm to patrons
          is reasonably foreseeable, and certainly
          whenever the circumstances are such as to
          indicate that the danger of harm to patrons by
          other patrons should have been anticipated by
          one reasonably alert.

Industrial Park Businessmenþs Club v. Buck, 252 Ark. 513, 479 S.W.2d 842 (1972).  In the case at bar there was substantial
evidence to show that the person being ejected from appelleeþs
establishment was beaten by appelleeþs security personnel as they
attempted to remove him, but that Mr. Neyland was able to remove
him from the establishment with little trouble simply by
restraining him.  The beating administered to the person being
removed by the security men was in contravention of appelleeþs
instructions to its security employees, which allowed the use of
physical force only in self-defense and only to restrain the
attacker.  Appelleeþs instructions further require security
personnel to calm down any disturbance as quickly and quietly as
possible.  We think that reasonable minds could conclude on this
record that appelleeþs security personnel not only failed to calm
down this disturbance, but in fact exacerbated it through use of
excessive force.  We hold that there was substantial evidence to
show that appellee breached its duty to use reasonable care to
protect its patrons.
     Finally, we think that there was substantial evidence to show
that appelleeþs failure to use reasonable care was the proximate
cause of appellantþs damages.  Appellant testified that she was
knocked down and stepped on by persons following in the wake of the
disturbance, which Mr. Neyland described as a þherd of people.þ 
Although it is true that appellant did not know who knocked her
down or stepped on her or whether these persons were employees of
appellee, that is not fatal to her claim.  While the intervention
of an independent agency ordinarily relieves the first wrongdoer of
liability, the original wrongdoer will not be relieved of liability
if the result or act of the independent agent could have been
anticipated.  Southwestern Bell Telephone Company v. Adams, 199
Ark. 254, 133 S.W.2d 867 (1939).  As Justice Leflar wrote in Hill
v. Wilson,  216 Ark. 179, 224 S.W.2d 797 (1949):
          [A] wholly independent intervening act could
          be held to be the sole proximate cause of
          resultant injuries.  If on the other hand the
          intervening act be one the likelihood of which
          was definitely increased by the defendant's
          act, or one which in fact was caused by the
          defendant's act, it is not a superseding
          proximate cause of injuries incurred by reason
          of it.  "An intervening act of a human being .
          . . which is a normal response to the stimulus
          of a situation created by the actor's
          negligent conduct is not a superseding cause
          of harm to another which the actor's conduct
          is a substantial factor in bringing about."
          Restatement, Torts, 443. "The fact that an
          intervening act of a third person is negligent
          in itself or is done in a negligent manner
          does not make it a superseding cause of harm
          to another which the actor's negligent conduct
          is a substantial factor in bringing about if,
          (a) the actor at the time of his negligent
          conduct should have realized that a third
          person might so act, or (b) a reasonable man
          knowing the situation existing when the act of
          the third person was done would not regard it
          as highly extraordinary that the third person
          had so acted, or (c) the intervening act is a
          normal response to a situation created by the
          actor's conduct and the manner in which it is
          done is not extraordinarily negligent."
          Restatement, Torts, 447. Compare Green,
          Rationale of Proximate Cause (1927), with
          Beale, The Proximate Consequences of an Act
          (1920), 33 Harvard L. Rev. 633. And see
          Prosser, Torts (1941) 352.

We think reasonable persons, on this evidence, could properly
conclude that appellee should have anticipated that the method
employed to eject the disorderly patron could cause other patrons
to be trampled by the crowd, and that appelleeþs negligence
definitely increased the likelihood of such an occurrence.
     Reversed and remanded.
     Neal, Arey, Jennings, and Stroud, JJ., agree.
     Griffen, J., dissents.

     Wendell L. Griffen, Judge, dissenting.  Simply because the
standard of review of a trial courtþs decision in directing a
verdict is that the evidence is viewed most favorably to the party
against whom the directed verdict was entered, certainly cannot
mean that a trial courtþs decision must be reversed, where the
party, having the burden of proving that her injuries in a
negligence action were proximately caused by the defendantþs fault,
and where she fails to produce any evidence showing that anyone
injured her because of the altercation that she claims the appellee
failed to properly handle.  It is well settled that where there is
any evidence tending to establish an issue in favor of the party
against whom the verdict is directed, it is error to take the case
from the jury.  Hardeman, Inc. v. Hass, Co., 246 Ark. 559, 439 S.W.2d 281 (1969).  þAny evidenceþ means evidence legally
sufficient to warrant a verdict.  To be legally sufficient, the
evidence must be substantial, and substantiality is a question of
law for the trial court to decide.  Id.  
     The Arkansas Supreme Court has held that evidence of
negligence is insubstantial where a fact finder is merely given a
choice of possibilities that require the jury to resort to
conjecture as to cause.  In Arkansas Kraft v. Cottrell, 313 Ark.
465, 855 S.W.2d 333 (1993),  the court clearly demonstrated its
understanding of this principle when it reversed a trial courtþs
decision denying a tort defendantþs motion for directed verdict and
dismissed the negligence action that had resulted in a $166,630.74
verdict and judgment in favor of a man who sued Kraft for back
injuries.  The plaintiff in that case had testified in his case-in-
chief that he became dizzy, fainted, and fell down a staircase in
the paper mill while working on air conditioning units.  He did not
know why he became dizzy and fell, but testified that he believed
that his fall resulted from the combination of heat in the
uppermost part of the staircase, the steepness of the staircase,
and moisture on the staircase.  A fellow employee also testified to
the same conditions in the vicinity of the staircase where the fall
occurred.  The trial court denied Kraftþs motion for a directed
verdict at the end of Cottrellþs case-in-chief, and the jury
returned the verdict previously mentioned.  After reciting the same
principles for reviewing actions taken on motions for directed
verdict that have been recited by the majority in this case, the
supreme court held that Cottrellþs case þrested upon conjecture and
speculation and, as such, he failed to establish a prima facie case
of Kraftþs alleged negligence, and the trial court erred in not
granting a directed verdict in Kraftþs favor.þ  Id. at 472, 855 S.W.2d  at 337.  In that unanimous decision, Chief Justice Jack Holt
wrote:
     There is no substantial evidence to support the juryþs
     verdict.  The record reflects that Mr. Cottrell offered no
     proof other than his own testimony and that of a fellow worker
     in an attempt to show Kraft was negligent but failed to
     convincingly show negligence on the part of Kraft.  We have
     long held that substantial evidence is not present where a
     fact finder is merely given a choice of possibilities which
     require the jury to conjecture or guess as to a cause.  In
     other words, evidence showing possible causes of a fall, as
     opposed to probable causes, does not constitute substantial
     evidence of negligence.  The mere fact that a person slips and
     falls does not give rise to an inference of negligence, and
     there is no such inference here.

Id. at 471, citations omitted.

     Here appellant alleged that appellee failed to exercise
ordinary care to protect its patrons from the risk of injury in a
situation involving an altercation with members of its security
staff.  There was no proof that appellant was pushed because of the
altercation, that she fell because of the altercation, or that
anyone stepped on her ankle because of the altercation.  At most,
appellant presented proof from which the jury might have surmised
that someone pushed her for any of several possible reasons.  She
could have been pushed by someone involved in or fleeing from the
altercation.  She could have been pushed by someone who was trying
to move across the dance floor and found her in the way.  She could
have been pushed by someone who inadvertently jostled her for
reasons having nothing to do with the altercation.  When appellant
fell, her ankle might have been stepped on for any of these
reasons, or for none of them.  Appellant rested her case-in-chief
having merely offered several possible causes for the jury to
speculate about concerning the push, her fall, and the resulting
ankle fracture.  This is the same kind of proof that the supreme
court held in Cottrell to justify a directed verdict in favor of
the defendant, and which caused the supreme court to hold that  the
trial courtþs denial of the defendantþs motion for directed verdict
was reversible error.
     Juries are triers of fact, not jugglers of hunches, guesses,
and possible causes for injuries alleged to have been caused by
negligence.  Whether appelleeþs security personnel violated the
directives relating to handling altercations or not, appellant
presented no legally sufficient evidence to warrant a verdict that
the injuries sustained when she was pushed, fell, and stepped on
were proximately caused by anyone due to the altercation.  Unless
jury verdicts are to become exercises in guesswork rather than fact
finding, we should affirm the trial courtþs decision granting the
appelleeþs motion for directed verdict.  Because the majority is
unwilling to do so, despite the established legal precedent on this
subject, I respectfully dissent.