Michael Boone, et al., Respondents, vs. Aristeo Martinez, Respondent, Palace Bar of Albert Lea, Inc., d/b/a the Palace Bar, et al., Appellants.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C5-96-297

Michael Boone, et al.,
Respondents,

vs.

Aristeo Martinez,
Respondent,

Palace Bar of Albert Lea, Inc.,
d/b/a the Palace Bar, et al.,
Appellants.

  Filed September 24, 1996
Affirmed in part, reversed in part and remanded
Parker, Judge

Freeborn County District Court
File No. C092292

John S. Beckmann, Daniel L. Scott, Hoversten, Johnson, Beckmann, Wellmann & Hovey, P.L.L.P., 807 West Oakland Avenue, Austin, MN 55912 (for respondents Michael Boone, et al.)

Phillip Marron, LAMP, University of Minnesota, 95 Law Center, 229 19th Avenue South, Minneapolis, MN 55455 (for respondent Aristeo Martinez)

Jeremiah P. Gallivan, Paul A. Banker, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., 500 Young Quinlan Building, 81 South Ninth Street, Minneapolis, MN 55402-3214 (for appellants)

Daniel Heuel, Muir, Heuel, Carlson & Spelhaug, 404 Marquette Bank Building, Rochester, MN 55903 (for appellants)

Considered and decided by Crippen, Presiding Judge, Parker, Judge, and Thoreen, Judge. 1

U N P U B L I S H E D O P I N I O N

PARKER , Judge
Appellant Palace Bar challenges the district court's grant of judgment notwithstanding the verdict (JNOV), amending the findings of fact in favor of respondents Michael and Michelle Boone. Concluding that Michael Boone was not negligent at the time of the assault and that defendant Martinez's intoxication was the direct cause of Michael Boone's injuries, the trial judge amended the jury findings allowing the Boones judgment against both Martinez and Palace Bar for the total amount of damages. By notice of review, the Boones appeal the trial judge's grant of a directed verdict in favor of Palace Bar as to premises liability. We affirm in part and reverse in part.
  D E C I S I O N
The granting of a judgment notwithstanding a jury verdict is a pure question of law. Edgewater Motels, Inc. v. Gatzke , 277 N.W.2d 11, 14 (Minn. 1979). A reviewing court is not bound by and need not give deference to a trial court's decision on a purely legal issue. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n , 358 N.W.2d 639, 642 (Minn. 1984).
1. Palace Bar argues that there is ample evidence in the record to support the jury verdict and that the trial court erred in granting the Boones' motion for JNOV, and that the issue of proximate cause is properly decided by the jury. Palace Bar claims that the jury's determination that the illegal sale of alcohol caused or contributed to Martinez's intoxication, but was not the direct cause of Boone's injuries, is reasonable, given the tumultuous history between Boone and Martinez. Palace Bar also argues that because the trial court concluded that causation of Boone's injuries presented a fact question for the jury, it is inconsistent for the court now to conclude that "reasonable minds could not disagree as to this issue."
A trial court's grant of JNOV should stand when there is no competent evidence reasonably tending to sustain the verdict. Bisher v. Homart Dev. Co. , 328 N.W.2d 731, 733 (Minn. 1983). Granting JNOV is only proper if the evidence when viewed in the light most favorable to the jury verdict is practically conclusive against the verdict and reasonable minds can reach only one conclusion. Nadeau v. County of Ramsey , 277 N.W.2d 520, 522 (Minn. 1979). Because it is the jury's function to determine credibility, review of a jury's verdict is even more limited when the decision rests upon weighing the credibility of witnesses. Stuempges v. Parke, Davis & Co. , 297 N.W.2d 252, 256 (Minn. 1980). Generally, the issue of proximate cause is a fact issue for the jury to decide. Vanderweyst v. Langford , 303 Minn. 575, 576, 228 N.W.2d 271, 272 (1975). But proximate cause can be decided as a matter of law where reasonable minds could arrive at only one conclusion. Id. When confronted with inconsistent or conflicting answers, a trial court may reconcile a verdict by changing an inconsistent answer. Orwick v. Belshan , 304 Minn. 338, 343, 231 N.W.2d 90, 94 (1975).
  A. Martinez's Intoxication
The jury found in part that (1) the illegal sale of an alcoholic beverage to defendant Martinez by Palace Bar caused or contributed to the intoxication of defendant Martinez; (2) the intoxication of defendant Martinez caused or contributed to by the illegal sale to defendant Martinez was not a direct cause of the injury sustained by plaintiff Michael Boone; (3) negligence of defendant Martinez was a direct cause of the injury sustained by plaintiff Michael Boone; and (4) defendant Martinez was not so intoxicated at the time of the battery that he did not intend to stab or to injure Michael Boone.
In granting the Boones's motion for JNOV, the trial court found that the verdict should be amended to state:
The intoxication of defendant Martinez caused or contributed to by the illegal sale of an alcoholic beverage by defendant Palace Bar to defendant Martinez was a direct cause of the injury sustained by plaintiff Michael Boone.

We conclude that the jury verdict is supported by the evidence. Although Martinez testified that he would not have assaulted Michael Boone had he not been intoxicated, he also testified that he was not so intoxicated that he did not understand or did not intend to assault Boone. Furthermore, when the two men fought in 1984, Boone had severely beaten Martinez and both men testified that the 1984 fight was the cause of the current assault.
Given this testimony, we cannot say that "reasonable minds could only reach one conclusion." In reaching a verdict, it is possible that the jury believed (1) that Martinez, holding a grudge from the 1984 fight, was not incapacitated by his intoxication and finally saw an opportunity to get even that night at the Palace Bar; or (2) if Martinez's intoxication was the cause of the assault, his original intoxication from drinking 12 bottles of beer at home was the direct cause of the assault and any additional alcohol ingested in the two bottles of beer purchased at the Palace Bar only 10-15 minutes before the assault was of no causal effect. Because the jury could reasonably have found that Martinez's intoxication caused by the illegal sale was not a direct cause of the assault, we conclude that the trial court's grant of JNOV must be reversed and the jury's verdict on finding #3 reinstated.
  B. Boone's negligence
The jury found that Michael Boone was 10 percent negligent at the time of the assault and that his negligence was a direct cause of his injuries. In setting aside that finding of fact, the trial judge held that Boone was not negligent at the time of the assault and allocated his assigned percentage of fault to Martinez and Palace Bar.
The record contained testimony from Martinez and from several other witnesses that Boone was caught off guard and had no reason to suspect an attack. Boone testified that he was uncomfortable upon seeing Martinez at the bar when he arrived. Boone acknowledged that he noticed Martinez's unusually loud behavior, but decided to remain on the premises after the two exchanged nods of greeting.
We conclude that Boone was under no duty to retreat, despite the past history between the parties, but only to keep a careful lookout. Martinez admitted that it was a sneak attack and, under these circumstances, there was no duty owed and violated by Boone. The evidence and the law support the amended finding of the trial judge as to the absence of negligence by Boone.
2. The Boones, by notice of review, appeal the trial judge's grant of Palace Bar's motion for directed verdict as to premises liability and denial of the Boones' motion for new trial.
The Boones argue that the uncontroverted evidence shows the trial judge erred in granting Palace Bar's motion for a directed verdict as to innkeeper liability. They contend that Palace Bar breached its duty to protect, intervene and assist Michael Boone after the assault commenced. The Boones argue that, although Palace Bar could not have foreseen Martinez's aggressive intent in time to prevent the "sneak attack" on Michael Boone, prompt intervention by Palace Bar staff could have prevented his most severe kicking and stab wound injuries, because they were not inflicted until near the end of the assault. Because the Palace Bar staff failed to intervene and break up the assault, the Boones contend, the grant of directed verdict as to innkeeper liability was improper and a new trial should be granted.
Where the trial court grants a motion for a directed verdict, a reviewing court reviews the evidence and its inferences to determine whether the evidence could reasonably sustain a contrary verdict. Northwestern State Bank of Luverne v. Gangestad , 289 N.W.2d 449, 453 (Minn. 1979).
On appeal from a directed verdict, the reviewing court makes an independent assessment of its appropriateness. A motion for a directed verdict presents a question of law for the trial court: whether the evidence is sufficient to present a fact question for the jury to decide.

Claflin v. Commercial State Bank of Two Harbors , 487 N.W.2d 242, 247 (Minn. App. 1992) (citations omitted), review denied (Minn. Aug. 4, 1992). "A directed verdict should be granted only where, in light of the evidence as a whole, it would be the duty of the trial court to set aside a contrary verdict as manifestly contrary to the evidence or to the law." Id. In considering the motion, the trial court must accept as true the evidence favorable to the adverse party and all reasonable inferences which can be drawn from that evidence and this court must apply the same standard. Id.
In order to prove innkeeper's liability the evidence must show:
1. The proprietor must be on notice of the offending party's vicious or dangerous propensities by some overt act or threat;

2. The proprietor must have adequate opportunity to protect the injured patron.

3. The proprietor must fail to take reasonable steps to protect the patron;

4. The injury must be foreseeable.

Alholm v. Wilt , 394 N.W.2d 488, 489 n.3 (Minn. 1986). The foreseeability issue is a threshold issue and more properly decided by the court prior to submitting the case to the jury. Id. at 491 n.5. However, foreseeability has nothing to do with proximate cause. Id. ( citing Prosser & Keaton on Torts Sec. 43 at 280-81 (5th Ed. 1984)). The Boones argue, however, that the foreseeability of the initial assault is not determinative of the innkeeper's liability issue under the particular facts of this incident.
In granting Palace Bar's motion for directed verdict as to premises liability, the trial judge found:
(1) that the incident was completely unforeseeable as a matter of law;

(2) that Boone failed to show that there was notice to Palace Bar of the dangerous propensities of Martinez;

(3) that the nature of the attack was such that even if there was notice, there was simply no opportunity to have done anything to prevent the sudden and unprovoked attack.

On this record, we cannot agree with the determinations of the trial judge. Because the attack was sudden and unforeseeable, the Palace Bar staff would not have been able to stop the initial attack. However, after the attack commenced, the Palace Bar staff failed to intervene, and a jury could find a breach of their duty to take reasonable steps to protect their patron during an assault that may have lasted as long as three minutes.
We conclude that the evidence is such that a jury could have found that a reasonably prompt intervention could have stopped Martinez's knife attack on Boone and Boone's most severe injuries, which were caused by the repeated stabbing at the end of the assault. Furthermore, the jury might have found that had Palace Bar not illegally sold liquor to Martinez, he would not have remained on the premises until Boone arrived, and the assault would never have happened.
Viewing the evidence as we must, in a light most favorable to Boone, we hold that Palace Bar had a duty to protect Boone once the assault commenced. There is evidence on the record to support a determination that a reasonably prompt intervention could have minimized Boone's injuries. Because the Palace Bar staff did nothing at all to stop the assault, we conclude that it was error for the trial court to grant the motion for directed verdict as to premises liability and a new trial on this basis is required.
  Affirmed in part, reversed in part and remanded for a new trial.