IN THE SUPREME COURT OF IOWA
No. 11–0085
Filed April 5, 2013
CURTIS GENE HOYT,
Appellant,
vs.
GUTTERZ BOWL & LOUNGE L.L.C.,
Appellee.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Guthrie County, Bradley
McCall, Judge.
The plaintiff brought a negligence action alleging he was assaulted
and injured on the defendant’s premises. The district court granted the
defendant’s motion for summary judgment and the court of appeals
reversed. Defendant sought, and this court granted, further review of the
decision of the court of appeals. DECISION OF COURT OF APPEALS
AFFIRMED; DISTRICT COURT JUDGMENT REVERSED AND CASE
REMANDED.
Gary D. Dickey Jr. of Dickey & Campbell Law Firm, PLC,
Des Moines, for appellant.
Mark J. Wiedenfeld and James W. Russell of Wiedenfeld &
McLaughlin, L.L.P., Des Moines, for appellee.
2
HECHT, Justice.
The plaintiff sued a bar for injuries sustained when he was
assaulted in the bar’s parking lot. The district court granted summary
judgment in favor of the bar. The court of appeals reversed the district
court’s ruling, concluding questions of fact precluded summary
judgment. On further review, we affirm the court of appeals decision and
reverse the district court’s grant of summary judgment.
I. Factual and Procedural Background.
The summary judgment record taken in the light most favorable to
plaintiff–appellant Hoyt supports the following factual findings.
Defendant–appellee Gutterz Bowl & Lounge (Gutterz) is a bowling alley
and tavern located in Guthrie Center, Iowa. On March 20, 2009, Curtis
Hoyt and several members of his construction crew finished work and
went to Gutterz for refreshments. Curtis Knapp was also a customer at
Gutterz that afternoon. Hoyt soon came to believe that Knapp was
scowling at him. Hoyt and Knapp had formerly been friendly, but
tension had arisen between them as a result of Hoyt’s alleged
mistreatment of the sister of Knapp’s friend. The record reveals no
evidence tending to prove the staff of Gutterz had any knowledge of this
history between Hoyt and Knapp.
After consuming a few beers, Hoyt and coworker Chris Brittain
approached and verbally confronted Knapp. Knapp did not respond and
continued to scowl at Hoyt. The waitress serving Hoyt and Brittain
observed their behavior with concern and threatened to discontinue
serving them unless they calmed down. Hoyt and Brittain ignored the
waitress’s warning and thus she requested and secured permission from
Gutterz’s owner, Rodney Atkinson, to discontinue serving them.
Atkinson, who had been preparing food in the kitchen, went to the bar
3
area to assess the situation. Hoyt and Brittain complained to Atkinson
that they were no longer being served and continued to taunt Knapp.
Shortly thereafter, Atkinson grew concerned that an altercation
might occur. He requested that Hoyt and Brittain leave.1 Hoyt finished
his beer and exited the tavern. As Hoyt walked through the parking lot
toward his vehicle, somebody approached him from behind and struck
him in the back of the head, knocking him unconscious. Hoyt suffered
several injuries including a compound fracture of his ankle. Knapp
admitted to police who later arrived on the scene that he had struck
Hoyt, but claimed he had done so in self-defense.2
On September 25, 2009, Hoyt filed this action alleging that Knapp
and Gutterz were liable for the injuries he sustained when Knapp
assaulted him. Gutterz moved for summary judgment, alleging Gutterz
owed Hoyt no duty of reasonable care, there was no evidence of a breach
of any duty, and the assault by Knapp and Hoyt’s injury were not
foreseeable. The district court granted Gutterz’s motion for summary
judgment and dismissed Gutterz from the lawsuit. The district court
found as a matter of law that the assault in the parking lot and Hoyt’s
resulting injury were not foreseeable to Gutterz. Having found Hoyt’s
injury was not foreseeable to Gutterz, the district court further found
insufficient evidence to generate a genuine issue of material
fact on the question of whether Gutterz employees failed to
exercise reasonable care to discover the likelihood of harm or
1Atkinson’s account suggests he escorted the men to their trucks in the parking
lot and returned to the kitchen. Hoyt and Brittain instead recalled that after Atkinson
ordered them to leave, they exited the tavern and walked themselves to their vehicles.
2The police ultimately charged both Hoyt and Knapp with disorderly conduct as
a result of the incident.
4
failed to provide an adequate warning after discovering a
potential danger to Hoyt.3
We granted Hoyt’s application for interlocutory appeal, and we
transferred the case to the court of appeals. The court of appeals
reversed the district court’s summary judgment ruling. In reversing, the
court of appeals cited our opinion in Thompson v. Kaczinski, 774 N.W.2d
829 (Iowa 2009). In Thompson, we adopted the general duty formulation
set forth in section 7 the Restatement (Third) of Torts: Liability for
Physical and Emotional Harm and explained that “the assessment of the
foreseeability of a risk” is no longer part of the duty analysis in
evaluating a tort claim, and instead is to be considered when the fact
finder decides whether a defendant has failed to exercise reasonable
care. Id. at 835. Consistent with its understanding that foreseeability is
no longer part of the duty determination, the court of appeals applied
section 40 of the Restatement (Third), entitled “Duty Based on Special
Relationship With Another,” in analyzing Hoyt’s claim. Concluding
Gutterz owed Hoyt a duty under section 40 and finding Hoyt had raised
fact questions as to foreseeability related to the issues of breach of duty
and scope of liability, the court of appeals reversed the summary
judgment ruling. We granted Gutterz’s application for further review.
II. Scope of Review.
The district court’s ruling on a motion for summary judgment is
reviewed for correction of errors of law. Id. at 832. A party is entitled to
summary judgment when the record shows no genuine issue of material
fact and that the moving party is entitled to a judgment as a matter of
3In reaching its conclusion, the court applied section 344 of the Restatement
(Second) of Torts, entitled “Business Premises Open to Public: Acts of Third Persons or
Animals.”
5
law. Iowa R. Civ. P. 1.981(3). On a motion for summary judgment, the
court must: “(1) view the facts in the light most favorable to the
nonmoving party, and (2) consider on behalf of the nonmoving party
every legitimate inference reasonably deduced from the record.” Van
Fossen v. MidAmerican Energy Co., 777 N.W.2d 689, 692 (Iowa 2009).
III. Discussion.
Hoyt contends the district court erred in concluding as a matter of
law that Gutterz did not breach a duty of reasonable care under these
circumstances. Further, Hoyt contends, the district court erred in its
consideration of foreseeability of injury to Hoyt in making its summary
judgment ruling. Gutterz urges that the summary judgment ruling
should be affirmed because: (1) the district court correctly analyzed the
question of duty, (2) even if a duty existed, Gutterz acted reasonably as a
matter of law, and (3) Hoyt’s injuries here were, as a matter of law,
outside the scope of harms typically resulting from the risks associated
with Gutterz’s conduct.
A. Duty. Before examining the record for a factual question
regarding whether Gutterz breached a duty to Hoyt, we must consider
whether Gutterz owed Hoyt a duty of care, and if so, the nature of that
duty under these circumstances. While summary adjudication is rarely
appropriate in negligence cases, the determination of whether a duty is
owed under particular circumstances is a matter of law for the court’s
determination. Thompson, 774 N.W.2d at 834; Sankey v. Richenberger,
456 N.W.2d 206, 207 (Iowa 1990). Traditionally, Iowa courts examining
whether a landowner has a duty to protect visitors from the conduct of
third parties relied upon section 344, comment f, of the Restatement
(Second) of Torts to conclude that a property owner “is ordinarily under
no duty to exercise any care until he knows or has reason to know that
6
the acts of the third person are occurring, or are about to occur.”
Galloway v. Bankers Trust Co., 420 N.W.2d 437, 438 (Iowa 1988);
Martinko v. H-N-W Assocs., 393 N.W.2d 320, 322–23 (1986); Restatement
(Second) of Torts § 344 cmt. f, at 225 (1965) [hereinafter Restatement
(Second)]. That general proposition was subject to the caveat that a duty
would be imposed in scenarios where the property owner knew or had
reason to know of a likelihood of third party conduct that could endanger
visitors or where the place or character of the business was such that the
property owner should reasonably anticipate careless or criminal
conduct by third parties. Galloway, 420 N.W.2d at 439–40; Martinko,
393 N.W.2d at 322–23; Restatement (Second) § 344 cmt. f, at 225–26.
Recently, in Thompson, we examined not a landowner–visitor
scenario, but a scenario in which the trampoline of a landowner had
been blown by high winds into a nearby roadway, obstructing the travel
of and causing injury to a driver. 774 N.W.2d at 831–32. We questioned
and then rejected an assessment of foreseeability of risk in determining
whether the landowner owed the driver a duty. We adopted the general
duty formulation of section 7 of the Restatement (Third) and explained:
An actor ordinarily has a duty to exercise reasonable care
when the actor’s conduct creates a risk of physical harm.
Thus, in most cases involving physical harm, courts need
not concern themselves with the existence or content of this
ordinary duty, but instead may proceed directly to the
elements of liability set forth in section 6 [of the Restatement
(Third)]. The general duty of reasonable care will apply in
most cases, and thus courts can rely directly on section 6
and need not refer to duty on a case-by-case basis.
Id. at 834–35 (citations and internal quotation marks omitted). We
joined the drafters of the Restatement (Third) in explicitly disapproving of
the use of foreseeability, or lack thereof, in making no-duty
determinations. Id. at 835. Instead, we explained, no-duty rulings
7
should be limited to exceptional cases in which “ ‘an articulated
countervailing principle or policy warrants denying or limiting liability in
a particular class of cases.’ ” Id. (quoting Restatement (Third) of Torts:
Liability for Physical & Emotional Harm § 7(b), at 77 (2010) [hereinafter
Restatement (Third)]). Such reasons of principle or policy justifying
departure from a general duty to exercise reasonable care would not
depend on the foreseeability of harm in any given case. Id. Instead,
assessment of foreseeability should be allocated to the fact finder, as part
of its determination of whether appropriate care has been exercised in
any given scenario. Id.
Section 40 of the Restatement (Third) describes duty principles,
some of which overlap with section 7’s general duty, more specifically for
special relationships such as landowner–visitor or business–patron
relationships, as follows:
(a) An actor in a special relationship with another owes
the other a duty of reasonable care with regard to risks that
arise within the scope of the relationship.
(b) Special relationships giving rise to the duty
provided in Subsection (a) include:
(1) a common carrier with its passengers,
(2) an innkeeper with its guests,
(3) a business or other possessor of land that
holds its premises open to the public with those who
are lawfully on the premises,
....
Restatement (Third) § 40, at 39 (2012). Comment g explains that section
40’s contemplated duties apply even in cases involving harm caused by a
third party:
The duty described in this Section applies regardless of the
source of the risk. Thus, it applies to risks created by the
8
individual at risk as well as those created by a third party’s
conduct, whether innocent, negligent, or intentional.
Id. § 40 cmt. g, at 42. Therefore, comment j explains, “[b]usinesses . . .
who hold their land open to the public owe a duty of reasonable care to
persons lawfully on their land who become ill or endangered by risks
created by third parties.” Id. § 40 cmt. j, at 43–44. Section 40 thus
modifies the general proposition of section 37 that actors typically owe no
duty to protect victims from the conduct of third parties,4 and clarifies
that a duty of reasonable care applies as a result of these special
relationships.
For the same reasons we found the Restatement (Third) compelling
in Thompson, we find it compelling in the tavern owner–patron context.
Recognizing that a duty exists whenever an actor has created a risk of
harm and that risks arise out of the special relationships contemplated
by section 40 encourages simplicity and predictability. Limiting no-duty
rulings to exceptional problems of policy or principle promotes judicial
transparency, encouraging judges to justify in explicit terms any reasons
for declining to impose a duty in a given scenario. Thompson, 774
N.W.2d at 835 (citing Restatement (Third) § 7 cmt. j, at 82). Further,
foreseeability is central to the fact finder’s inquiries regarding breach and
the range of harms for which an actor may be liable. Any overlap in the
duty inquiry is likely to be redundant and confusing, and may well
frustrate longstanding rationales for specific allocations of decision-
making power between the judge and jury. Id. at 835 (removing
4Section 37 states a principle complementary to the general duty principle of
section 7: there is no duty of care when another is at risk for reasons other than those
created by an actor’s conduct. As contemplated by sections 7 and 19, an actor’s
conduct may create risk by exposing another to the improper conduct of third parties.
All risks created by an actor’s conduct or course of conduct must be evaluated in
determining whether the section 37 principle applies.
9
foreseeability from the duty analysis “ ‘protect[s] the traditional function
of the jury as fact finder’ ” (quoting Restatement (Third) § 7(b) cmt. j, at
98–99)); 1 Dan B. Dobbs, The Law of Torts § 159, at 503–04 (2d ed. 2011)
(“Foreseeability [of harm] is seldom if ever a pure fact . . . [and] is
normally a jury question.”). The redundancy also gives rise to the
possibility that judge and jury may reach inconsistent results regarding
foreseeability, at odds with goals of procedural fairness, predictability,
and treating like cases alike. For these reasons, we emphasize again our
adoption of the duty analysis of the Restatement (Third).
The district court clearly considered the foreseeability of the
assault and Hoyt’s resulting injury in granting summary judgment for
Gutterz, but whether the judgment was based on a no-duty
determination or a reasonable care determination is less clear.5
Removing foreseeability from the duty analysis, we must consider
whether some principle or strong policy consideration justifies exempting
Gutterz, or the class of tavern owners in general, from the duty to
exercise reasonable care. The parties have not advanced, and we cannot
discern, any such considerations compelling exemption of tavern owners
from the duty. Tavern owners fit squarely within the class of business
owners contemplated by section 40(b)(3). Section 40 enumerates several
justifications for requiring business owners to exercise due care:
5As noted above, the district court specifically found there was insufficient
evidence to raise a fact question regarding whether Gutterz employees had exercised
reasonable care. In describing the applicable law, however, the court explained that “in
construing the duty of the possessor of land the Iowa Supreme Court, in Martinko v. H-
N-W Assocs., 393 N.W.2d 320 (Iowa 1986), observed that the ultimate issue for
determining liability is one of foreseeability.” The parties appear to disagree on appeal
as to the meaning of the district court’s findings. Gutterz argues that the district court
correctly found no duty based on lack of foreseeability, while Hoyt takes issue with the
court’s foreseeability determination without specifying whether the court made the
finding in the duty inquiry or the reasonable care inquiry.
10
[T]he relationship identifies a specific person to be protected
and thus provides a more limited and justified incursion on
autonomy, especially when the relationship is entered into
voluntarily. In addition, some relationships necessarily
compromise a person’s ability to self-protect, while leaving
the actor in a superior position to protect that person. Many
of the relationships also benefit the actor.
Restatement (Third) § 40 cmt. h, at 43. We are convinced these
justifications are applicable to tavern owners and decline to exempt them
from the duty to exercise reasonable care. Accordingly, we conclude
Gutterz owed Hoyt a duty of reasonable care under the circumstances
presented here. We now turn to the question of whether Hoyt raised a
genuine issue of material fact regarding the alleged breach of this duty.
B. Reasonable Care. Hoyt contends the district court erred in
concluding Gutterz had not, as a matter of law, failed to exercise
reasonable care. Gutterz counters that it acted reasonably.
While taverns are not insurers of patrons’ safety against third-
person criminal attacks, various jurisdictions have explained taverns
must make reasonable efforts to maintain order and supervise and
control patrons. See, e.g., Gunter v. Vill. Pub, 606 N.E.2d 1310, 1312
(Ind. Ct. App. 1993); Sweenor v. 162 State St., Inc., 281 N.E.2d 280, 281–
82 (Mass. 1972); Mettling v. Mulligan, 225 N.W.2d 825, 827–28 (Minn.
1975); Flynn v. Audra’s Corp., 796 N.W.2d 230, 232–33 (Wis. Ct. App.
2011); see also Restatement (Second) § 344 cmt. f, at 225–26. The
Restatement (Third) adds that in situations involving section 40
affirmative duties, section 3’s reasonable care analysis may be applied in
determining whether a particular failure to act is unreasonable.
Restatement (Third) § 3 cmt. c, at 30. Section 3 explains that a person
acts negligently if the person does not exercise reasonable
care under all the circumstances. Primary factors to consider
in ascertaining whether the person’s conduct lacks
reasonable care are the foreseeable likelihood that the
11
person’s conduct will result in harm, the foreseeable severity
of any harm that may ensue, and the burden of precautions
to eliminate or reduce the risk of harm.
Id. § 3, at 29.
In addition, section 19’s specific application of the section 3
principles explains that “[t]he conduct of a defendant can lack reasonable
care insofar as it foreseeably combines with or permits the improper
conduct of the plaintiff or a third party.” Id. § 19, at 215. Section 19
sets forth the following examples of situations where the defendant may
create or increase the likelihood of injury by a third person:
For example, the defendant’s conduct may make available to
the third party the instrument eventually used by the third
party in inflicting harm; or that conduct may bring the
plaintiff to a location where the plaintiff is exposed to third-
party misconduct; or that conduct may bring the third party
to a location that enables the third party to inflict harm on
the plaintiff; or the defendant’s business operations may
create a physical environment where instances of
misconduct are likely to take place; or the defendant’s
conduct may inadvertently give the third party a motive to
act improperly.
Restatement (Third) § 19 cmt. e, at 218.6
That a tavern may create a physical environment where instances
of misconduct are likely to take place raises converging questions of
reasonable care and the appropriate scope of liability for the defendant.
Restatement (Third) § 19 cmt. c, at 216–17. In a tavern, for example, the
environment may foreseeably bring about the misconduct of a third
6We note that in some bar owner–patron cases, the bar’s duty may be purely
affirmative because the bar has had no role in creating the risk of harm that arises. In
other cases, the bar may play a role in creating the risk, whether as illustrated in
section 19, or in some other manner. In those cases, the source of the duty may be the
general duty described in Thompson and section 7 of the Restatement (Third).
Thompson, 774 N.W.2d at 834–36. Regardless the source of the duty, the duty is one of
reasonable care. Restatement (Third) § 40 cmt. d, at 40. We emphasize, however, that
what constitutes reasonable care may depend on the circumstances, and whether the
duty is purely affirmative or more general may be a circumstance relevant in the fact
finder’s consideration of reasonable care. Id. at 41.
12
party, resulting in injury to a plaintiff. While the foreseeability of
misconduct raises an issue of the appropriate level of care, it also raises
the issue of whether the harm suffered by the plaintiff is within the range
of risks that may make the defendant’s conduct negligent in failing to
exercise that care. Id. In considering this overlap, we have previously
observed that where liability is based on the intentional acts of a third
party, we must take care to avoid requiring excessive precaution relating
to these acts, even when the improper conduct may be regarded as
foreseeable in the abstract. Brokaw v. Winfield-Mt. Union Cmty. Sch.
Dist., 788 N.W.2d 386, 392 (Iowa 2010).
In Brokaw, for example, we adjudicated a claim that a school
district had failed to control the conduct of one of its students. Id. at
388. The plaintiff, a high-school basketball player who alleged he was
injured by an opposing player during a game, appealed a decision in
favor of the defendant school district after a bench trial. Id. The plaintiff
argued the alleged assault by the defendant district’s student athlete was
foreseeable because the student athlete had taken a swing during the
game at another player within view of his coaches and had committed an
egregious foul. Id. at 394. We observed, however, that there was no
evidence in the record that the opposing player had a history of
physically dangerous conduct. Id. We therefore concluded there was
substantial evidence supporting the trial court’s view that the assault
was unforeseeable and affirmed its ruling that the school district had not
failed to exercise reasonable care. Id.
By contrast, section 19 of the Restatement (Third) illustrates
scenarios where an actor’s knowledge of the risk of negligent or
intentional third-party conduct may provide a basis for liability as
follows:
13
[A]n actor engaging in certain conduct can foresee a
considerable risk, either on account of the general prospect
of other persons’ negligence during the relevant frame of time
and place, or because the actor has knowledge of the
propensities of the particular person or persons who are in a
position to act negligently.
Restatement (Third) § 19 cmt. f, at 219.
Here, the district court found that Gutterz exercised reasonable
care as a matter of law, based largely on the notion that the information
available to Gutterz at the time failed to suggest any possibility of harm
to Hoyt. Hoyt and Brittain initiated the verbal conflict with Knapp,
reasoned the court, and thus, Gutterz could expect harm to Knapp but
had no reason to expect harm to Hoyt. Mindful of section 19’s
instructions that foreseeability should be evaluated in the relevant frame
of time and place, and that foreseeability may arise in environments
where instances of physical misconduct are likely to take place, we
disagree that the record established as a matter of law that an injury to
Hoyt was unforeseeable. Gutterz’s duty of reasonable care applied
“regardless of the source of risk.” Id. § 40 cmt. g, at 42. The duty
applied to risks arising from Hoyt’s conduct, as well as those created by a
third party’s conduct, whether innocent, negligent, or intentional. Id.
Indeed, section 19 confirms that the risk rendering a defendant’s
conduct negligent may be the “risk that potential victims will act in ways
that unreasonably imperil their own safety.” Id. § 19 cmt. b, at 216.
Gutterz personnel had observed the conflict developing between
Hoyt, Brittain, and Knapp, and had observed all three consuming alcohol
in the bar that afternoon. Hostilities escalated such that the waitress felt
compelled to seek and obtain Atkinson’s permission to discontinue
alcohol service to Hoyt and Brittain. Atkinson ordered Hoyt out of the
bar as a result of his concern that a physical altercation between Hoyt
14
and Knapp might occur. Moreover, bars are business venues in which
alcohol-fueled disturbances causing injury and even death are known to
occur. See Delgado v. Trax Bar & Grill, 113 P.3d 1159, 1169 (Cal. 2005)
(proprietor who serves intoxicating drinks must exercise reasonable care
to protect patrons from injury at hands of fellow guests); Carey v. New
Yorker of Worcester, Inc., 245 N.E.2d 420, 422 (Mass. 1969) (“commotion
and boisterous behavior and continued drinking” may be “warnings of
trouble”); Priewe v. Bartz, 83 N.W.2d 116, 120 (Minn. 1957) (presence of
an intoxicated person upon the premises “immediately exposes the
proprietor to the hazards of liability resulting from the unpredictable
conduct of such person”); Peck v. Gerber, 59 P.2d 675, 678 (Or. 1936)
(“any place selling intoxicants for immediate consumption is potentially a
disorderly place unless properly policed and patrolled”). Under these
facts, and given the relevant context of a bar and the conduct known to
occur there, we cannot conclude that the risk of harm to Hoyt was
unforeseeable as a matter of law as contemplated by sections 3, 19, and
40. Small changes in the facts may make dramatic changes in how
much risk is foreseeable, and thus we leave the breach question’s
foreseeability determination to juries unless no reasonable person could
differ on the matter. Thompson, 774 N.W.2d at 836. Given the ruling of
our court of appeals, the general tenor of bar behavior, and Atkinson’s
own testimony regarding concern about a physical altercation, we
conclude that a reasonable person might find the risk of harm to Hoyt
foreseeable. Accordingly, that Hoyt may have initiated the conflict
cannot serve as the basis for summary judgment that Gutterz acted
reasonably under the circumstances.
Although the district court did not clearly address whether the
record established reasonable care by Gutterz, Hoyt contends that
15
Gutterz could have exercised reasonable care by any of the following:
(1) calling the police when the conflict developed, (2) escorting Hoyt to his
vehicle in the parking lot, or (3) verifying that Knapp was not lying in
wait in the parking lot. Gutterz contends that it did escort Hoyt to his
vehicle, and that its precautions here were reasonable as a matter of law.
While resolution of the factual dispute is best left to the fact finder, we
observe that the resolution may have significant bearing on the
reasonable care determination. We emphasize that our recognition of a
duty in this case does not give rise to strict or absolute liability on the
part of Gutterz. Instead, to fulfill its duty in this context, Gutterz was
merely required to employ reasonable safety precautions. It may be that
quick intervention was all that was necessary under the circumstances.
See, e.g., Collins v. Shepherd, 441 S.E.2d 458, 459 (Ga. Ct. App. 1994).
Alternatively, a call to the police may have been warranted. See, e.g.,
Getson v. Edifice Lounge, Inc., 453 N.E.2d 131, 135 (Ill. App. Ct. 1983);
Regan v. Denbar, Inc., 514 N.W.2d 751, 753 (Iowa Ct. App. 1994).
Regardless, the question of what reasonable care required under these
circumstances is for the jury; it is only in exceptional cases that such
questions may be decided as matters of law. Iowa R. App. P. 6.904(3)(j).
Given the factual dispute here, and our preference for the jury’s
assessment of reasonable care, we cannot conclude that the record
established Gutterz’s conduct constituted reasonable care as a matter of
law.
C. Scope of Liability. Although the district court’s ruling did not
address the issue of Gutterz’s scope of liability, Gutterz relies on it on
appeal as an alternative ground for affirming the ruling. See Pitts v.
Farm Bureau Life Ins. Co., 818 N.W.2d 91, 97 (Iowa 2012) (noting we may
affirm on an alternative ground raised in the district court even if it was
not one on which the court based its ruling). Gutterz contends that
16
because the risk of Knapp assaulting Hoyt was unforeseeable as a matter
of law, the harm here fell outside Gutterz’s scope of liability. A finding to
the contrary, Gutterz argues, would result in an overbroad and unjust
scope of liability for a tavern. Hoyt does not address this particular
argument directly on appeal, but contends generally that because a
reasonable person could find the harm to Hoyt was foreseeable, the
district court erred in resolving the issue as a matter of law.
Although we have concluded Gutterz owed Hoyt a duty of
reasonable care here, we have previously noted that tort law will not
always impose liability on an actor for all harm factually caused by an
actor’s conduct. Thompson, 774 N.W.2d at 837. Instead, an actor’s
liability is limited to those physical harms that result from the risks that
make an actor’s conduct tortious. Id. at 838; see also Royal Indem. Co.
v. Factory Mut. Ins. Co., 786 N.W.2d 839, 852 (Iowa 2010) (“ ‘[A]n act
which merely places persons in the position where they sustain injury
from an unrelated event is not for that reason a legal cause of the
injury.’ ” (quoting Hansen v. Anderson, Wilmarth & Van Der Maaten, 657
N.W.2d 711, 715 (Iowa 2003))). This limiting principle aims to avoid
unjustified liability and to confine liability in a way consistent with the
reasons for holding an actor liable in the first place. Application of the
principle is fact-intensive, requiring consideration of the risks that make
an actor’s conduct tortious and a determination of whether the harm at
issue is a result of any of those risks. Thompson, 774 N.W.2d at 838.
Section 29 of the Restatement (Third) further explains these
considerations, noting that tortious conduct may be wrongful because of
various risks to various classes of persons. Restatement (Third) § 29
cmt. d, at 496. Some risks may be far more prominent than others, but
all are relevant in determining whether harm is within the appropriate
scope of liability for the actor’s conduct. Id.
17
Further, in special relationship cases, an actor’s scope of liability
may include harms that are different from the harms risked by the
actor’s failure to exercise reasonable care to ameliorate or eliminate risks
that the special relationship requires the actor to attend to. Restatement
(Third) § 29 cmt. r, at 511. In other words, as a result of the bar–patron
relationship, a range of risks may arise for which the bar has a duty of
reasonable care, and in addition, a separate range of risks may arise to
the extent the bar’s conduct foreseeably combines with or permits the
improper conduct of a third party. Id. Thus, as noted in our reasonable
care analysis, foreseeability is relevant in the scope determination, and
we have observed that the fact finder, in determining the appropriate
scope of liability, must determine whether the type of harm that occurs is
among those reasonably foreseeable potential harms that make an
actor’s conduct negligent. Thompson, 774 N.W.2d at 839 (citing
Restatement (Third) § 29 cmt. j, at 594). When courts consider the
scope-of-liability question on summary judgment, we have explained that
they
“must initially consider all of the range of harms risked by
the defendant’s conduct that the jury could find as the basis
for determining [the defendant’s] conduct tortious. Then, the
court can compare the plaintiff’s harm with the range of
harms risked by the defendant to determine whether a
reasonable jury might find the former among the latter.”
Id. at 838 (quoting Restatement (Third) § 29 cmt. d, at 496). No
straightforward rule can be provided to determine the appropriate level of
generality or specificity to employ in characterizing the harms.
Restatement (Third) § 29 cmt. i, at 504. Where there are contending
plausible characterizations of the range of reasonably foreseeable harms
arising from the defendant’s conduct leading to different outcomes and
requiring the drawing of an arbitrary line, the case should be left to the
judgment and common sense of the fact finder. Id.
18
At first blush, the relevant inquiry here given the parties’
contentions might appear to be the appropriate level of generality with
which to characterize the harm that occurred. According to Gutterz, the
relevant range of risks did not include the risk that a verbally aggressive
patron in a bar might suffer retaliatory harm from a patron who showed
no signs of physical aggression inside the bar. Hoyt, on the other hand,
characterizes the relevant range of risks more generally and contends the
risk of a physical altercation between bar patrons who had engaged in
verbal conflict on the premises is well within the range. Regardless
which of these characterizations of the range of risks is adopted,
however, we cannot conclude Hoyt’s harm fell outside Gutterz’s scope of
liability as a matter of law. For the same reasons discussed above in our
reasonable care analysis, we think it plausible that a reasonable jury
could find either characterization of the risk of harm to Hoyt as falling
within the range of risks arising from Gutterz’s conduct. Accordingly,
the claim must survive summary judgment on the scope-of-liability
issue.
Finally, we think it prudent to observe that the scope-of-liability
standard is flexible enough to accommodate fairness concerns raised by
the specific facts of a case. Thompson, 774 N.W.2d at 838. Whether an
individual instigating a bar fight should have a viable negligence claim
when the fight materializes clearly implicates questions of fairness.
Those questions, however, are better left to fact finders applying (1) the
relevant breach and scope-of-liability analyses, and (2) comparative fault
law, than to a court applying summary judgment rules. See Iowa Code
§ 668.3(1)(a) (plaintiff cannot recover damages if he or she is more than
fifty percent at fault); see also Mulhern v. Catholic Health Initiatives, 799
N.W.2d 104, 121 (Iowa 2011); Restatement (Third) § 29 cmt. s, at 511.
19
IV. Conclusion.
The district court erred in concluding that Gutterz, as a matter of
law, could not have breached its duty of reasonable care. In addition, a
reasonable fact finder could conclude that Hoyt’s harm was within the
appropriate scope of liability for Gutterz. Genuine issues of material fact
remain regarding each element of Hoyt’s negligence claim and summary
judgment was therefore inappropriate. Accordingly, we reverse the
district court’s dismissal of this claim and remand this case for trial.
DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT
COURT JUDGMENT REVERSED AND CASE REMANDED.
All justices concur except Waterman, J., Cady, C.J., and
Mansfield, J., who dissent.
20
#11–0085, Hoyt v. Gutterz Bowl & Lounge L.L.C.
WATERMAN, Justice (dissenting).
I respectfully dissent. I agree with the dissenting judge on the
court of appeals that summary judgment was correctly granted by the
district court. Negligence cases in general and bar fights in particular
are poor candidates for summary judgment. But, here, it is undisputed
the bar owner kicked out the troublemaker. There was no reason to eject
the well-behaved victim of the troublemaker’s verbal abuse or call the
police before the quiet patron unexpectedly jumped the troublemaker in
the parking lot. The evidence is insufficient to raise a jury question on
negligence or scope of liability. Uncontroverted facts establish the
defendant acted reasonably as a matter of law.
There is no evidence or claim that prior fights or third-party
criminal acts showed a need for a bouncer or other security at Gutterz.
Bars are not insurers strictly liable for injuries on their premises inflicted
by others. So, what happened that allows Hoyt to sue Gutterz for a
beating inflicted on him by Knapp in the parking lot? Although accounts
of the fight outside differ, what happened inside Gutterz is undisputed.
By all accounts, Hoyt was the aggressor inside Gutterz, while
Knapp remained calm. The two people working at Gutterz Bowl &
Lounge in Guthrie Center, owner Rod Atkinson and waitress Sarah
Greene, knew nothing about any bad blood between these men. Hoyt
had been fishing with defendant Knapp hundreds of times, but they had
recently had a falling out. Hoyt and other members of his construction
crew stopped by Gutterz after work. After drinking a few beers, Hoyt and
his companion, Chris Brittain, became loud and started taunting Knapp.
Hoyt approached Knapp to confront him and continue his verbal
harassment. It is undisputed that Knapp did not threaten Hoyt verbally
21
or physically. Greene responded to the belligerence of Brittain and Hoyt
by threatening to “cut them off” unless they quieted. When their taunts
and name-calling continued despite her warning, she talked to Atkinson
who agreed they should quit serving them beer. Atkinson, who had been
busy in the kitchen, came out to check on the situation. Hoyt
complained about the decision to quit serving them alcohol. When Hoyt
and Brittain continued their name-calling, Atkinson told them to leave.
They left. Throughout this commotion, Knapp stayed quiet. He did
nothing to raise a concern about his behavior or to justify kicking him
out with Hoyt.
Having kicked out the troublemakers—Hoyt and his companion—
what else should Gutterz have done? How was the bar negligent? The
majority concludes a jury could find Gutterz negligent for failing to call
the police. But, no crime had (yet) been committed, and Hoyt exited the
bar when told to leave. Knapp was not threatening anyone or
misbehaving in any way. At that point, why call the police? From
Gutterz’s standpoint, the incident had been defused by Hoyt’s departure.
The majority also argues Atkinson should have done more to ensure Hoyt
left the parking lot safely. This theory assumes Atkinson reasonably
should have foreseen Knapp would attack Hoyt. Knapp had not so much
as even raised his voice. The majority fails to cite a single case from any
jurisdiction supporting a property owner’s liability for a third-party
assault under equivalent facts.
This case is quite a bit different from the Iowa precedent holding a
jury question existed on a bar’s negligent failure to prevent an assault.
See, e.g., Regan v. Denbar, Inc., 514 N.W.2d 751 (Iowa Ct. App. 1994). In
that case, plaintiff, Daniel Regan, was playing darts with his brothers at
Katie McButts Tavern in Davenport. Id. at 752. Two men confronted the
22
Regans, and one “struck Daniel in the face, knocking him to the ground”
inside the bar. Id. A fight ensued, and the bartender intervened and
asked the Regans to leave. Id. The Regans feared they would be
attacked on their way to their vehicle and asked the bartender to call the
police while they waited inside until the police arrived. Id. The
bartender refused and sent the Regans out the back door where he saw
one of the attackers waiting. Id. at 753. The next attack on the Regans
outside was reasonably foreseeable. Accordingly, the court of appeals
reversed a directed verdict for the bar. Id. In sharp contrast here, no
one asked for the police to be called, and Knapp had not assaulted Hoyt
or anyone inside the lounge or given any indication he would do so
outside.
Our court’s recent adoption of sections of the Restatement (Third)
of Torts is not the death knell for summary judgments in negligence
cases. See, e.g., McCormick v. Nikkel & Assocs., Inc., 819 N.W.2d 368,
371–75 (Iowa 2012). In that case, we affirmed summary judgment
dismissing the plaintiff’s negligence claims against an electrical
subcontractor. Id. at 369. McCormick was electrocuted on a jobsite six
days after the defendant completed its work and returned control of the
locked equipment to the owner. Id. at 370. We affirmed summary
judgment on two grounds. First, we applied the long-standing rule that
liability follows control, which we recognized as “an articulated
countervailing principle or policy” exception to the general duty of care
under section 7(a) of the Restatement (Third). Id. at 374. Second, we
noted the absence of evidence of any defect in the electrical work and
affirmed summary judgment on the alternative ground that defendant
“did not create a ‘risk of physical harm’ giving rise to a general duty
23
under section 7(a) of the Third Restatement.” Id. at 375. Nothing in
today’s majority opinion limits our holdings in McCormick.
The duty of care invoked by the majority today is found in section
40(b)(3) of the Restatement (Third). The majority relies on comment j,
which recognizes that businesses open to the public “owe a duty of
reasonable care to persons lawfully on their land who become ill or
endangered by risks created by third parties.” Restatement (Third) of
Torts: Liability for Physical and Emotional Harm § 40 cmt. j, at 43–44
(2012) [hereinafter Restatement (Third)]. The duty owed is one of
reasonable care. To raise a jury question, there must be sufficient
evidence that a jury could find defendant’s conduct breached this duty,
that is, the defendant acted negligently or unreasonably. Such evidence
is lacking here. The drafters of the Restatement (Third) confirm that,
when “reasonable minds can reach only one conclusion,” the court may
enter a directed verdict or judgment as a matter of law that defendant is
“free of negligence.” Id. § 8 cmt. b, at 103–04 (2010).
The drafters also admonished that “the prospect of criminal
conduct is significantly lower than the prospect of negligent conduct.”
Id. § 19 cmt. f, at 220. Our own precedent applying the Restatement
(Third) makes clear the question is whether Gutterz should have foreseen
that Knapp would assault Hoyt. In Brokaw v. Winfield-Mt. Union
Community School District, a student, McSorley, assaulted Brokaw, an
opposing player during a basketball game. 788 N.W.2d 386, 388 (Iowa
2010). Brokaw and his parents sued McSorley for battery and his school
district for negligent failure to prevent his attack. Brokaw, 788 N.W.2d
at 388. We clarified that liability under the Restatement (Third) turned
on whether the district knew, or “in the exercise of ordinary care should
have known, that McSorley was likely to commit a battery against an
24
opposing player.” Id. at 393–94. We upheld the district court’s bench
trial judgment in favor of the district because substantial evidence
supported the court’s finding the assault was not foreseeable. Id. at
394–95. In so holding, we concluded the correct legal standard required
a determination of whether it was foreseeable McSorley would assault
Brokaw. Id. at 393–94. Similarly, here, the issue is not whether a fight
between Hoyt and Knapp was foreseeable, but rather whether it was
reasonably foreseeable to Gutterz that Knapp would assault Hoyt.
Gutterz acted reasonably as a matter of law by ejecting Hoyt, the
troublemaker. Gutterz had no reason to foresee that Knapp, the quiet
one, would attack Hoyt outside the lounge.
I agree with the dissenting judge on the court of appeals, who
concluded the “evidence does not make it foreseeable Knapp, who was
causing no trouble, would harm Hoyt.” Similarly, the district court
correctly concluded:
The circumstances may have made it foreseeable that Hoyt
might harm Knapp. The circumstances known to Atkinson
did not make it foreseeable that Knapp might harm Hoyt.
In the case at bar there was no evidence of a potential
danger to Hoyt from Knapp. Because of that total lack of
evidence, a fact question of whether Gutterz exercised
reasonable care to discover the existence of a danger is not
generated. Just as in Knebel v. Ka-Boos Bar & Grill, 2004
Iowa App. LEXIS 335, in the instant case “the owners did not
know and had no reason to know that the assault was about
to occur.” Accordingly, summary judgment is appropriate.
Under analogous circumstances, other appellate courts have
affirmed directed verdicts or summary judgments when the assault that
occurred was not reasonably foreseeable. See, e.g., Boone v. Martinez,
567 N.W.2d 508, 511 (Minn. 1997) (affirming directed verdict because
“the evidence established that the assault by Martinez was sudden and
unforeseeable”); Rader v. Sugarland Enters., Inc., 149 P.3d 702, 707
25
(Wyo. 2006) (affirming summary judgment when assailant in parking lot
fight was passive bystander in precipitating incident inside before
troublemakers were told to leave). See generally Joan Teshima,
Annotation, Tavernkeeper’s Liability to Patron for Third Person’s Assault,
43 A.L.R. 4th 281, 354–63 (1986) (collecting bar fight cases adjudicated
by court as a matter of law).
Summary judgment is also appropriate in this case on the scope of
liability. “Under the Restatement (Third) analysis, . . . something
[defendant] did or did not do must have increased the risk” to plaintiff.
Royal Indem. Co. v. Factory Mut. Ins. Co., 786 N.W.2d 839, 851, 851–52
(Iowa 2010) (vacating plaintiff’s jury verdict on grounds the harm was
outside the scope of liability as a matter of law). Again, there is no
evidence that Gutterz did or failed to do anything that increased the risk
Knapp would harm Hoyt. To the contrary, Gutterz reduced the risk
those men would come to blows by ejecting Hoyt, who was harassing
Knapp.
In Brokaw, we admonished that:
Where liability is premised on the negligent or
intentional acts of a third party . . . ,“the law itself must take
care to avoid requiring excessive precautions of actors
relating to harms that are immediately due to the improper
conduct of third parties, even when that improper conduct
can be regarded as somewhat foreseeable.”
788 N.W.2d at 392 (quoting Restatement (Third) § 19 cmts. g, h, at 220–
21). The majority disregards that admonishment today. It is an
“excessive precaution” to require Atkinson to call the police after he
ejected Hoyt or to guard Hoyt outside until he left unharmed when there
were only two employees working at Gutterz that afternoon, and Knapp
had given no sign of trouble.
26
For these reasons, I would affirm the district court’s summary
judgment in favor of Gutterz.
Cady, C.J., and Mansfield, J., join this dissent.
Curtis Gene Hoyt v. Gutterz Bowl & Lounge L.L.C.
Combined Opinion