LAURA MURPHY v. SECOND STREET CORPORATION AND COYOTES, INC.
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RENDERED:
MARCH 23, 2001; 2:00 p.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-003041-MR
LAURA MURPHY
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE
ACTION NO. 98-CI-002791
v.
SECOND STREET CORPORATION AND
COYOTES, INC.
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HUDDLESTON, JOHNSON AND SCHRODER, JUDGES.
JOHNSON, JUDGE:
Laura Murphy has appealed from a summary
judgment entered by the Jefferson Circuit Court on November 15,
1999, that dismissed her personal injury action for damages
suffered from an assault which allegedly occurred at the Second
Street Corporation’s place of business.1
1
Having concluded that
Second Street Corporation is the owner of several
nightclubs that are part of a building complex located at Second
Street and Liberty Street in downtown Louisville, Kentucky, and
known as O’Malley’s Corner.
the Corporation did not have a duty to prevent the initial
assault of Murphy or a duty to identify or to detain the
assailant after the assault, we affirm.
On May 21, 1997, Murphy and two companions, Rebecca
Gnadinger and Shannon Simms, decided to “get out” and go dancing.
That evening at approximately 10:45 p.m., the three friends
arrived at O’Malley’s Corner, which is an entertainment complex
consisting of a several nightclubs which are separated from each
other but also connected to each other by walkways and doorways.
That night, Murphy, who was 19 years old at the time, and her
friends spent their time in the Rock-It Club, which was
conducting a “teen night.”
During “teen night”, no alcoholic
beverages were sold in the Rock-It Club but customers over 21
years of age were permitted in the premises.2
Murphy testified in her deposition that she and her
friends were dancing near the disk jockey booth when an
altercation occurred.
She testified that while she was dancing,
she was pushed from behind.
Murphy then turned around to find
out why she had been pushed and a large woman told her that she
had stepped on her toe.3
In her deposition Murphy stated: “I was
in the middle of telling her I was sorry, you know, it was a
crowded dance floor, and she hit me in my jaw.”
2
It should be noted, however, that in other clubs at
O’Malley’s Corner alcohol was served to persons over the age of
21.
3
Murphy was unable to physically describe her attacker, but
according to her friends she was attacked by a large, black
woman.
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Immediately thereafter, the club’s private security
personnel removed Murphy’s attacker from the club and off the
premises without gathering any identification from her.
The club
also attended to Murphy by having an emergency medical technician
(EMT) examine her.
The EMT told Murphy that she was alright and
her friends drove her home.
Murphy testified, however, that
during the night she suffered pain and the next day she went to
Jewish Hospital where she underwent surgery for a broken jaw.
As
a result, Murphy had a tooth removed and her mouth was wired shut
for six weeks.
On May 20, 1999, Murphy filed a complaint in the
Jefferson Circuit Court against the Second Street Corporation as
the owner and operator of O’Malley’s Corner and Coyote’s, Inc.4
In her complaint, Murphy alleged:
On May 21, 1997, at approximately 11:45
p.m., Plaintiff was in Defendant’s tavern and
dance hall as a patron. While Plaintiff was
at the tavern, a certain stranger whose name
is unknown to the Plaintiff was also at the
tavern as a patron and was served
intoxicating beverages by Defendant. After
remaining in Defendant’s tavern for some time
said stranger started to become unruly,
boisterous, and prone to violent action, all
of which conduct Defendant knew, or in the
exercise of reasonable care should have
known, about. After a while, said stranger
started a fight and engaged in other violent
action with Plaintiff as a result of same,
4
The complaint and record are somewhat confusing, but Second
Street Corporation owned O’Malley’s Corner which consisted of
several bars located together. Murphy was injured in the Rock-It
Club which was not named separately as a defendant. Coyote’s,
which was another bar connected to the Rock-It Club, was named as
a defendant but apparently none of the events on this evening
took place in Coyote’s.
-3-
Plaintiff was suddenly and without warning
forcefully and violently assaulted and beaten
by said stranger as a consequence of which
Plaintiff sustained the severe bodily
injuries described below [emphasis added].
On June 10, 1998, the Corporation and Coyote’s filed an
answer.
The parties then conducted discovery which included
taking the depositions of Murphy, her friends Gnadinger and
Simms, and the surgeon that treated Murphy.
On April 12, 1999,
the appellees filed a motion for summary judgment.5
On May 6,
1999, Murphy filed a response and the trial court heard oral
arguments on the motion on May 24, 1999.
On November 1, 1999, at
the trial court’s request, the parties filed supplemental briefs
on the issue of whether the appellees’ internal use of a written
security policy had created a duty to Murphy to detain the
assailant and to gather from her information for the purpose of
identification.
On November 15, 1999, the trial court entered an
opinion and order granting appellees’ motion for summary judgment
and dismissing Murphy’s complaint.
This appeal followed.
The standard of review on appeal of a summary judgment
is whether the trial court correctly found that there was no
genuine issue as to any material fact and that the moving party
was entitled to judgment as a matter of law.6
Since factual
findings are not at issue, there is no requirement that the
5
Kentucky Rules of Civil Procedure (CR) 56.
6
CR 56.03.
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appellate court defer to the trial court.7
“The record must be
viewed in a light most favorable to the party opposing the motion
for summary judgment and all doubts are to be resolved in his
favor.”8
“The inquiry should be whether, from the evidence of
record, facts exist which would make it possible for the
nonmoving party to prevail.
In the analysis, the focus should be
on what is of record rather than what might be presented at
trial.”9
For Murphy to meet her burden of proof in this
negligence action she must establish: (1) a duty on the part of
the defendant; (2) a breach of that duty; and (3) consequent
injury.10
The question of duty presents an issue of law;11 and
when a court resolves a question of duty, it is essentially
making a policy determination.12
“What constitutes ordinary care varies with the nature
of the business and the use to which the premises are put, but it
7
Goldsmith v. Allied Building Components, Inc., Ky., 833
S.W.2d 378, 381 (1992).
8
Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807
S.W.2d 476, 480 (1991).
9
Welch v. American Publishing Co. of Kentucky, Ky., 3 S.W.3d
724, 730 (1999).
10
Mullins v. Commonwealth Life Insurance. Co., Ky., 839
S.W.2d 245, 247 (1992) (citing Illinois Central R.R. v. Vincent,
Ky., 412 S.W.2d 874, 876 (1967)).
11
57A Am.Jur.2d Negligence § 20 (1989); Prosser and Keeton
on Torts, § 37 (5th ed. 1984).
12
Mullins, supra at 248; see also Nelson v. Davidson, 155
Wis.2d 674, 456 N.W.2d 343, 345 (1990).
-5-
is a care commensurate with the particular circumstances involved
in the given case.”13
A proprietor is not the insurer of the
safety of its guests.
A plaintiff must show either: (1) that the
proprietor had knowledge that one of his patrons was about to
injure the plaintiff and he failed to exercise ordinary care to
prevent such injury; or, (2) that the conduct of some of the
persons present was such as would lead a reasonably prudent
person to believe that they might injure other guests.14
We hold
that the trial court was correct in ruling as a matter of law
that Murphy failed to show that the Corporation failed to
exercise ordinary care in preventing her from being injured.
In her brief, Murphy states: “Appellees knew or should
have known of the assailant’s propensity to be violent.”
However, Murphy fails to identify any evidence of record to
support this statement.
In Murphy’s own complaint, she states:
“Plaintiff was suddenly and without warning forcefully and
violently assaulted and beaten by said stranger.”
Obviously, if
Murphy was struck without warning, the Corporation had no duty to
prevent the assault; the assault was not foreseeable.
Murphy’s
deposition testimony also supports the legal conclusion that the
Corporation did not breach a duty to her.
She states:
I was pushed, but at that point I didn’t
really know if I - - it was really crowded,
so I really didn’t know if she just did it on
accident or what, but, you know, after she
13
Sidebottom v. Aubrey, 267 Ky. 45, 101 S.W.2d 212, 213
(1937).
14
Id.
-6-
hit me I knew that she didn’t do that on
accident. So I guess you would say when she
hit me is when I knew she had violent
tendencies.
In another portion of her deposition, Murphy states that she was
in the middle of telling her assailant that she was sorry for
stepping on her toe when she was struck in the jaw.
In Gnadinger’s deposition, she states that she was a
foot away from Murphy when Murphy was punched; but she could not
hear the actual words exchanged between Murphy and the assailant
because “it was loud in there and too many people [were] around.”
Both Murphy and Gnadinger testified that during this exchange
there was a member of Rock-It Club’s private security staff
standing five feet away.
Thus, according to Murphy and her own
witness, the assault occurred in a crowded and loud bar and
without warning.
Accordingly, we affirm the trial court’s ruling
that the Corporation did not have a duty to protect Murphy from
this unforseeable assault.
Murphy also argues that the trial court erred in
dismissing her claim that the Corporation breached its duty to
her by failing to detain her assailant and to gather information
that could be used to identify her.
In her brief, Murphy states:
Appellees failed to detain the assailant of
the Appellant once the Appellees and the
agents took custody of the assailant. This
is not disputed, Appellees employed its said
quasi-police force at the time, by stationing
two, two hundred fifty (250) pound bouncers
at said disc-jockey stand.15
15
The testimony in the depositions is that there was at
(continued...)
-7-
In their briefs, the parties spend a great deal of time
discussing the law of assumption of a duty and the “Good
Samaritan” doctrine.16
However, we do not believe that these
doctrines are applicable.
While the Corporation did owe a duty
to Murphy to protect her once the threat of injury was
foreseeable, by fulfilling that duty it did not assume an
additional duty to gather information concerning her assailant.
The duty owed to Murphy by the Corporation was to protect her and
to prevent her further harm from the unknown assailant once the
threat of injury became forseeable, but it did not have a duty to
assist Murphy in obtaining information about her assailant so she
could pursue a criminal or civil claim.
Murphy readily concedes that she is unable to cite any
case law that would support her contention that a club has a duty
to detain an assailant and to gather identifying information.
In
its brief, the Corporation states:
It is not the law that defendants may decline
to assist customers who are being attacked by
another customer in order to avoid assuming a
duty to detain and thereby minimize their
liability. Since tavern owners have a duty
to assist customers who are being attacked by
another customer, plaintiff’s “assumed duty”
15
(...continued)
least one bouncer near the disc jockey stand, but there has not
been any evidence in the record as to the bouncer’s weight.
16
Restatement (Second) of Torts §§ 323, 324A (1965). In
connection with this, Murphy also argues that the Corporation’s
own procedures and guidelines call for its security team to fill
out an incident report. The fact that the Corporation failed to
fill out an internal incident report did not create a new duty or
constitute an assumption of a duty that it otherwise did not
have.
-8-
claim is just another way of saying that
plaintiff believes that an owner’s common law
duty of assistance should include a mandatory
duty to detain [emphasis original].
It should be remembered that Murphy does not contend
that the Corporation failed to fulfill its duty to protect her
from further injury once she was struck.
The record is
undisputed that the security personnel stepped in immediately
after the punch was thrown and escorted the assailant off of the
premises and attended to Murphy’s injuries.
We hold that the
Corporation fulfilled its duty to protect Murphy from foreseeable
physical injury.
In fulfilling its duty to protect Murphy from
further attack, it did not assume a duty to help her pursue a
claim for damages against her assailant.
Having concluded that the trial court’s ruling is
correct as a matter of law, the summary judgment of the Jefferson
Circuit Court is affirmed.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF FOR APPELLEE:
Brian K. Darling
Louisville, KY
Kenneth A. Bohnert
Edward F. Busch
Louisville, KY
ORAL ARGUMENT FOR APPELLEES:
Kenneth A. Bohnert
Louisville, KY
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