Bartosh v. Banning
1967 Cal. App. LEXIS 1980, 251 Cal. App. 2d 378, 59 Cal. Rptr. 382 (1967)
Rule of Law:
A proprietor of a public premises has a duty to exercise reasonable care to protect invitees from the foreseeable dangerous acts of other patrons, including intentional attacks. In a civil action for battery, contributory negligence is generally not a defense for an intentional tortfeasor, but may be an issue if a person acting in lawful self-defense negligently injures an innocent bystander, and the jury must be properly instructed on these principles, especially when they express confusion.
Facts:
- Plaintiff, a 45-year-old organist-pianist, had dinner with her mother and aunt at the Gilded Rafters, consuming no alcohol, while her escort, Jerry Di Donato, had two highballs.
- Around 10:30 or 11 p.m., plaintiff and Di Donato went to the Intrepid Fox, a bar owned and operated by Strebor Corporation, where Di Donato had one or two more highballs, and the plaintiff had no alcohol.
- Di Donato engaged in a loud, friendly argument about Communism with a stranger seated next to the plaintiff.
- Thomas M. Banning entered the bar approximately 20 minutes later, staggering and visibly angry, ordered and immediately consumed a drink, and then ordered another.
- Banning, from about six or seven feet away, yelled anti-Semitic and anti-Italian slurs across the room at Di Donato and the stranger.
- Despite his companion, Mr. Atkins, attempting to calm him, Banning approached Di Donato and struck him, causing Di Donato to be knocked into the plaintiff and knocking the plaintiff backwards off her stool, causing her to strike her head.
- After the plaintiff was helped outside and returned to the bar, Banning again approached Di Donato and struck him a second time.
- Andrew Varela, the Strebor Corporation's bartender, heard Banning's provocative language, then left the bar unattended for four or five minutes to answer an external telephone, returning to find Banning and Di Donato wrestling and the plaintiff already injured.
Procedural Posture:
- Plaintiff filed an action in trial court seeking damages for personal injuries against Thomas M. Banning, Jerry Di Donato, and Strebor Corporation.
- The cause was tried before a jury.
- At the conclusion of the plaintiff’s case, on motion of the plaintiff, the action was dismissed as to defendant Di Donato.
- Strebor Corporation's motion for judgment of nonsuit was granted, and a written order of dismissal as to it was entered.
- Further evidence was taken, and the cause was submitted to the jury as to defendant Banning only.
- The jury returned its verdict in favor of Banning and against the plaintiff.
- Judgment was entered upon the verdict accordingly.
- The plaintiff appealed from the judgment of nonsuit (as to Strebor Corporation, the appellee) and from the judgment entered upon the verdict (as to Banning, the appellee).
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Issue:
1. Did the trial court err in granting a judgment of nonsuit for Strebor Corporation, the bar owner, when there was evidence suggesting it failed to exercise reasonable care to protect an invitee from a foreseeable assault by another patron? 2. Did the trial court err by inadequately instructing the jury on the unavailability of contributory negligence as a defense against an intentional tortfeasor for an innocent bystander's injuries, and on the duty of a self-defending party to exercise reasonable care to avoid injuring bystanders, particularly after the jury expressed confusion?
Opinions:
Majority - Frampton, J. pro tem.
Yes, the trial court erred in granting a judgment of nonsuit for Strebor Corporation and by inadequately instructing the jury regarding Banning. The court reasoned that a bar owner, like Strebor Corporation, has a duty to use reasonable care to protect its invitees from injury by other invitees when it has reasonable cause to anticipate such acts and the probability of injury. Viewing the evidence most favorably to the plaintiff, Banning's angry, agitated, and provocative behavior, combined with the bartender's act of leaving the bar unattended, created a factual question for the jury as to whether Strebor Corporation failed to exercise ordinary care to control Banning's conduct and prevent foreseeable harm. Therefore, a nonsuit was improper. Regarding the jury instructions for defendant Banning, the court held that as between an intentional aggressor and the person attacked, contributory negligence is not a defense to an intentional tort like battery. However, if a person acting in lawful self-defense injures an innocent bystander, the question of whether the self-defending party acted with reasonable care to avoid injuring the bystander, and the bystander's potential contributory negligence, may become an issue. The trial court failed to provide specific instructions on the responsibility of a wrongful aggressor for injuries to an innocent bystander, or on the duty of a self-defending person to exercise reasonable care to avoid injuring an innocent bystander. The jury's questions during deliberation clearly indicated their confusion on these vital issues. The trial court's failure to provide adequate specific guidance after such a request constituted reversible error, necessitating a new trial against Banning.
Analysis:
This case highlights the dual responsibilities of premises owners to protect patrons and the trial court's obligation to provide comprehensive jury instructions. It clarifies that a bar owner's duty to protect invitees extends to anticipating and preventing intentional attacks by other patrons when warning signs are present. Furthermore, the decision emphasizes the critical role of specific and clear jury instructions, particularly when complex issues like intentional torts, self-defense, and bystander injury intersect, underscoring that jury confusion demands further guidance from the court. Future cases will likely cite this precedent for the standard of care for premises liability in public establishments and for the requirement of robust jury instructions in tort cases involving multiple parties and types of conduct.
