specially concurring:
Although I agree with the result reached by the majority, I write separately to set out what I perceive to be the proper analysis to resolve the issue of the duty of a tavern owner to its patrons.
As the trial court held, tavern owners have a duty to exercise reasonable care to protect patrons from foreseeable injury. Cubbage v. Leep, 137 Colo. 286, 289, 323 P.2d 1109, 1110-11 (1958). See generally Annotation, Tavernkeeper’s Liability to Patron for Third Person’s Assault, 43 A.L.R.4th 281, 288-89 (1986 & Supp.1988). Once a duty is found to exist, its scope must be delineated. Both the existence and scope of a duty are questions of law for the court. Metropolitan Gas Repair Serv., Inc. v. Kulik, 621 P.2d 313, 317 (Colo.1980).
The primary factor in determining the scope of a duty is whether a particular harm is reasonably foreseeable.. Taco Bell, Inc. v. Lannon, 744 P.2d 43, 46 (Colo.1987). Foreseeability may be either general or specific. , See Restatement (Second) of Torts § 344 comm, f (1965). In Taco Bell the danger was general. It arose, not because of any particular or specific threat, but from the experience of ten armed robberies on the premises within three years.
Unlike Taco Bell, this case involves a specific threat. The evidence did not establish a general duty to protect patrons arising from past experience with criminal activity. Any duty to protect against harm. arose in the present case, if it did at all, from the activities of the defendant Sheard on the premises the night plaintiff’s injuries occurred. Nothing in the record gives rise to the inference that a reasonable person would have foreseen that Sheard would become aggressive and harm the plaintiff, or that anything the defendant’s employees could have done would have prevented that harm. See Yarborough v. Erway, 705 S.W.2d 198 (Tex.Ct.App. — Houston [14th Dist.] 1985, writ ref’d n.r.e.) (jury’s finding that tavern owner was negligent not supported by the evidence, where there was no evidence of probative value that employees were on notice that dangerous situation existed, or that employees had time to act even if trouble had been foreseen).
The confrontation between Fitzpatrick and Sheard did not take place at the request of any of defendant’s employees, but was entirely Fitzpatrick’s idea. See, e.g., Lindsay v. Hartog, 76 N.M. 122, 412 P.2d 552 (1966) (bar owners not liable where plaintiff, asked to accompany owners to table where patron was sitting, took it upon himself to eject the patron, and was injured when the patron struck him).
Once it is concluded that there was no duty to protect against Sheard’s unforeseeable behavior, the trial court’s directed verdict in favor of the defendant should be upheld. A discussion of policy considerations beyond foreseeability, which might be relevant to determining the scope of a duty in response to general threats, is unnecessary, where the threat involves a specific patron whose conduct becomes unexpectedly aggressive.
Accordingly, I specially concur in the result reached by the majority.