No. 12378
I N T E SUPREME COURT O THE STATE, O MONTANA
H F F
1973
WILLIAM KIPP,
P l a i n t i f f and A p p e l l a n t ,
BILLY WONG, d/b/a
The Standard Bar,
Defendant and Respondent.
Appeal from : D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
Honorable C. B. Sande, Judge p r e s i d i n g .
Counsel of Record:
For Appellant :
Joseph P. Hennessey argued, B i l l i n g s , Montana
For Respondent :
Crowley, Kilbourne, Haughey, Hanson and G a l l a g h e r ,
B i l l i n g s , Montana
Stephen H. F o s t e r argued, B i l l i n g s , Montana
-
Submitted : November 28, 1973
Decided : JAM 10 1 ~ -
JAN 10 lq4
Filed :
M r . J u s t i c e Gene B. Daly d e l i v e r e d t h e Opinion of t h e Court.
This i s an a c t i o n f o r damages brought by p l a i n t i f f William
K i p p i n t h e d i s t r i c t c o u r t of Yellowstone County a g a i n s t B i l l y Wong,
owner of t h e Standard Bar, a public b a r , a s a r e s u l t of a gunshot
wound received by p l a i n t i f f while he was a patron i n defendant's
bar.
Plaintiff b r i n g s t h i s appeal from a judgment entered
by t h e d i s t r i c t c o u r t on a d i r e c t e d v e r d i c t i n favor of defendant
b a r owner.
On A p r i l 19, 1970, a t about 1:30 a.m., p l a i n t i f f William
Kipp was a customer of t h e Standard Bar which i s l o c a t e d on t h e
south s i d e of B i l l i n g s , Montana. One Gus Gardiner entered t h e
b a r , took a gun from h i s pocket and r a p i d l y f i r e d t h r e e s h o t s .
One shot s t r u c k William Kipp i n t h e l e f t s i d e of t h e abdomen
causing i n j u r i e s which r e s u l t e d i n t h e removal of h i s l e f t kidney.
O e shot s t r u c k and i n j u r e d Charles Linderman, and one shot s t r u c k
n
Beverly Linderman, h i s w i f e , causing h e r death.
The Standard Bar i s a r e t a i l beer and l i q u o r establishment
owned by operated by B i l l y Wong s i n c e 1967. O t h e n i g h t of t h e
n
shootings e i g h t persons were employed i n t h e Standard Bar: the
defendant B i l l y Wong, h i s son and a woman a s b a r t e n d e r s , two bar-
maids, and a three-piece dance band. B i l l y Wong t e s t i f i e d he
personally checked i d e n t i f i c a t i o n and kept order i n t h e b a r ; t h a t
f i g h t s occasionally occurred i n t h e b a r b u t he was u s u a l l y a b l e t o
s t o p them. I f he was unable t o s t o p a f i g h t , he would telephone t h e
police, Wong f u r t h e r t e s t i f i e d t h a t he had been a b a r o p e r a t o r
s i n c e 1950, and no shots had been f i r e d i n h i s b a r s p r i o r t o A p r i l
19, 1970.
Defendant Wong was 59 years o l d , f i v e f e e t seven inches t a l l
and weighed 115 pounds a t t h e time t h i s i n c i d e n t occurred. He
s t a t e d t h a t i n h i s experience he was b e t t e r a b l e t o keep o r d e r
personally by using nonviolent means than when he had employed a
It
bouncer", because he could u s u a l l y g a i n t h e r e s p e c t of customers
who would attempt t o f i g h t a bouncer. He kept a loaded shotgun and
p i s t o l behind t h e bar.
B i l l y Wong t e s t i f i e d he had known Gus Gardiner a s a
customer f o r a "couple of years", during which time Gardiner had
never caused t r o u b l e nor given Wong occasion t o o r d e r him t o leave
t h e bar.
A t about 1 1 : O O p.m. on t h e n i g h t t h e shooting occurred,
Gus Gardiner had been i n t h e b a r i n t h e company of two o t h e r men,
P h i l l i p Holiday and Colvin Kingfisher. According t o William
Smith, p l a i n t i f f ' s witness and a customer of t h e b a r , a d i s p u t e
between Kingfisher and an u n i d e n t i f i e d man i n t h e b a r r e s u l t e d
i n Kingfisher pushing t h e u n i d e n t i f i e d man out t h e back door and
into the alley. Smith t e s t i f i e d he observed a f i g h t which took
place i n t h e a l l e y between Kingfisher and t h e u n i d e n t i f i e d man,
with Holiday and Gus Gardiner present b u t apparently n o t involved
i n the fight.
The t r i a l c o u r t granted an o b j e c t i o n t o s m i t h ' s attempted
testimony t h a t s h o r t l y a f t e r he r e e n t e r e d t h e b a r he heard a
sound l i k e a gunshot from t h e v i c i n i t y of t h e a l l e y . In t h i s
connection, a motion i n limine was f i l e d by defendant p r i o r t o
t r i a l seeking t o exclude Smith ' s testimony concerning t h e "gun-
shot soundf'. Smith was permitted t o t e s t i f y , over o b j e c t i o n ,
t h a t he had known Gardiner f o r f i v e t o seven years and h i s repu-
t a t i o n f o r peace and q u i e t i n t h e community was " p r e t t y bad".
J o s e Romero, a bartender a t t h e Arcade Bar l o c a t e d near
t h e Standard Bar, t e s t i f i e d he d i d n o t know Gus Gardiner's reputa-
t i o n i n t h e community, b u t h i s r e p u t a t i o n i n t h e Arcade was bad.
Defendant's o b j e c t i o n t o Romerots testimony was sustained.
John Nelson, a musician i n t h e dance band playing a t t h e
Standard Bar t h e n i g h t t h e shootings occurred, t e s t i f i e d t h a t he
had a conversation with Billy Wong a f t e r t h e shooting and Wong
s t a t e d t h a t Gus Gardiner was always i n t r o u b l e . He f u r t h e r t e s t i -
f i e d , however, t h a t B i l l y Wong s a i d nothing t o i n d i c a t e Gus
Gardiner had ever caused t r o u b l e i n t h e Standard Bar, and t h a t
t h e Standard Bar was peaceful on t h e evening i n question u n t i l
t h e time of t h e shooting.
B i l l y Wong t e s t i f i e d he was aware t h a t Gus Gardiner had
been i n t h e Standard Bar on t h e evening i n q u e s t i o n , b u t was
unaware of ~ a r d i n e r ' sinvolvement i n any a l t e r c a t i o n , i n s i d e o r
o u t s i d e t h e bar. Wong s t a t e d Gardiner l e f t t h e b a r around
1 1 : O O p.m. and t h a t he d i d n o t see Gardiner again u n t i l 1:30
a.m., when t h e shooting occurred.
The only witness who t e s t i f i e d concerning t h e amount of
time which elapsed between Gardiner's e n t r y i n t o t h e b a r and h i s
f i r i n g t h e s h o t s was Kathryn Rolison, a customer, who s t a t e d :
"Q. Would you d e s c r i b e what you saw? A. Seeing t h e
man walk i n , he walked around t h e dance f l o o r and
stopped a t t h e t a b l e and turned around and smiled, and
then turned and pulled a gun out of h i s pocket and
s t a r t e d shooting.
"Q. The p o i n t number 2 [ r e f e r r i n g t o a diagram] shows
about where he was standing when he s h o t ? A. Yes.
"Q. And t h a t was r i g h t next t o your t a b l e ? A. Yes.
"Q. H w long d i d he stand t h e r e before he p u l l e d
o
t h e gun o u t ? A. J u s t momentarily.
Q. Did he look a t you? A. Yes.
"Q. What was h i s expression? A. Well, he j u s t kind
of smiled and turned around.
"Q. What d i d he do then? A. He s t a r t e d shooting.
"Q. Did he say anything before he s t a r t e d shooting?
A. No.
"Q. Did t h e r e appear t o be anybody with him? A. No.
"Q. Did he f i r e t h e s h o t s i n quick succession? A. Yes. II
Other witnesses t e s t i f i e d t h e shooting appeared t o coin-
c i d e with an argument o r f i g h t between two women. However, no
connection between t h e i n c i d e n t s was e s t a b l i s h e d .
William Kipp, Charles Linderman and Beverly Linderman,
t h e persons s t r u c k by t h e t h r e e b u l l e t s , d i d not know Gus Gardiner.
~ e f e n d a n t ' smotion f o r d i r e c t e d v e r d i c t was granted by the
t r i a l c o u r t a t t h e c l o s e of t h e evidence. P l a i n t i f f made a subse-
quent motion for leave of the court to reopen the case and
permit an additional witness to be called, a Miss Devorah Howe.
Miss Howe was one of the women fighting at the time the shooting
occurred. An excerpt from a written statement she made to the
Billings police on June 11, 1970, is contained in the record and
indicates Miss Howe heard the shots but did not see the shooting.
This motion and plaintiff's motion for a new trial were denied.
On appeal, plaintiff assigns six issues for review:
Whether the trial court erred:
1) In directing a verdict for the defendant.
2) By permitting the defendant to make an oral motion
on the day of trial to limit the plaintiff's voir dire and proof.
3) In limiting the testimony of witness William Smith
to what he saw and excluding what he heard.
4) In denying la in tiff's motion to reopen his case.
5) In denying plaintiff's motion for a new trial.
6) In permitting the dcifendant to voir dire the witness
William Smith in the absence of the jury.
Concerning the first issue, plaintiff relies on Nevin v.
Carlasco, 139 Mont. 512, 514, 365 P.2d 637, wherein the Court
stated :
It
Turning to the remaining specifications of error,
we find in 30 Arn.Jur., 5 523, p. 823, the general
obligation of duty and liability to patrons on the
premises as follows: 'It has been held that the
proprietor of a liquor establishment for on-premises
consumption does not hold himself out as an insurer
of the safety of his patrons and is not bound to the
same degree of care toward them as devolves on inn-
keepers and carriers, although he does owe them the
duty of exercising reasonable care to protect them
from injury at the hands of a fellow patron, and of
seeing to it that a patron is not injured either by
those in his employ or by drunken or vicious men
whom he may choose to harbor. 1
IIReviewing leading cases from other'jurisdictions,
[citing cases], we find the general rule to be that
the duty of a tavern keeper to protect a patron from
injury by another arises only when one or more of
the following circumstances exist:
(1) A tavern keeper allowed a person on the
premises who has a known propensity for fighting.
(2) The tavern keeper allowed a person to
remain on the premises whose conduct had become
obstreperous and aggressive to such a degree the
tavern keeper knew or ought to have known he en-
dangered others.
(3) The tavern keeper had been warned of danger
from an obstreperous patron and failed to take suit-
able measures for the protection of others.
( ) The tavern keeper failed to stop a fight
4
as soon as possible after it started.
(5) The tavern keeper failed to provide a
staff adequate to police the premises.
( ) The tavern keeper tolerated disorderly
6
conditions. I1
See also: Ganger v, Zook, 141 Mont. 214, 377 P.2d 101.
Nevin was cited by the California court in Slawinski v.
Mocettini, 31 Cal.Rptr. 613, 616, 217 C.A.2d 192, quoting the six
listed circumstances determinative of negligence. The facts in
Slawinski were analogous to those in the instant case: Slawinski
was in a bar owned by Mocettini and had a scuffle with one Wilson,
after which Slawinski remained in the bar and Wilson left. About
thirty minutes later Wilson returned with a gun and killed Slaw-
inski.
The Slawinski case resulted in a jury verdict for slawinski's
survivors, after which the trial court granted the bar owner's
motion for a new trial. The California District Court of Appeals
affirmed the new trial order, stating in pertinent part:
"While the standard of care is that of an ordinarily
prudent person, yet it must be realized that reason-
able care is a relative term in that the amount of
care must be commensurate with the risks and danners
attending the activity being pursued. * * * The Zest
of whether the duty of reasonable care is discharged
is the probability or foreseeability of injury to a
plaintiff.
1I
In the instant case, although there was conflicting
evidence as to whether Wilson had a reputation as a
hot tempered person, it was uncontroverted that the
respondents and their employees were not aware of
this fact and had never experienced any trouble with
Wilson. * * * There is no evidence that respondents
had any way of knowing that Wilson would return."
(Emphasis added).
In the instant case, there is the testimony of William
Smith, Jose R-omero,and John Nelson tending to indicate that Gus
Gardiner had a bad reputation in the community for peace and quiet.
However, t h e i r testimony d i d not d i r e c t l y c o n t r a d i c t B i l l y Wong's
testimony t h a t Gus Gardiner had never caused t r o u b l e i n t h e Standard
Bar p r i o r t o t h e n i g h t i n question. Even assuming, arguendo, t h e
evidence was s u f f i c i e n t t o c r e a t e a f a c t u a l i s s u e a s t o whether
Wong should have had n o t i c e of Gardiner's dangerous p r o p e n s i t i e s ,
t h a t i s s u e i s rendered moot i n t h e f a c e of t h e uncontradicted evi-
dence t h a t Wong had no way of knowing Gardiner would, o r d i d i n
f a c t , r e t u r n t o t h e b a r ; a n d , t h a t Gardiner commenced shooting with-
o u t any a p p r e c i a b l e l a p s e of time from when he entered t h e b a r and
without any t h r e a t e n i n g words o r a c t s which might have c o n s t i t u t e d
a warning t o Wong o r h i s employees.
The fundmental p r i n c i p l e of t o r t law involved i s analogous
t o t h e body of law s e t f o r t h i n t h e various "business i n v i t e e s l i p
and f a l l " cases decided by t h i s Court, i.e.: t h e r e i s no negligence
u n l e s s (1) t h e dangerous o r injury-causing condition was c r e a t e d
by t h e p r o p r i e t o r ; (2) t h e p r o p r i e t o r had knowledge of t h e dan-
gerous o r injury-causing c o n d i t i o n ; o r (3) t h e dangerous o r i n j u r y -
causing c o n d i t i o n was of such n a t u r e and d u r a t i o n t h a t t h e p r o p r i e t o r
i s charged with c o n s t r u c t i v e n o t i c e t h e r e o f . McEnaney v. C i t y of
Butte, 43 Mont. 526, 117 P. 893; Demaree v. Safeway S t o r e s , Inc.,
M nt
o . , 508 P.2d 570, 30 St.Rep. 405.
~ i k e w i s e , t h e f a c t u a l i s s u e a s t o whether Wong employed an
adequate s t a f f t o p o l i c e h i s premises i s rendered moot under t h e
facts. I n Weihert v. Piccione, 273 Wisc. 448, 78 N.W.2d 757,762,
c i t e d by t h i s Court i n Nevin, t h e Wisconsin Supreme Court determined
an analogous i s s u e i n t h e defendant's f a v o r , s t a t i n g i n p e r t i n e n t
part :
h he [ t r i a l ] c o u r t was a l s o of a mind t h a t t h e
f a i l u r e t o have provided 'guards' o r 'bouncers'
i n t h e establishment d i d not c o n s t i t u t e c a u s a l
negligence, f o r t h e reason t h a t had such been
~ r o v i a e d , i t cannot be assumed t h a t they would
have prevented t h e a s s a u l t which occurred i n -
stanetly and without warning. " (Emphasis added).
I n order f o r t h e t r i a l c o u r t t o submit t h e i s s u e of l i a -
b i l i t y t o t h e j u r y , t h e p l a i n t i f f must produce evidence which, i f
viewed i n t h e l i g h t most favorable t o p l a i n t i f f , demonstrates t h a t
defendant was somehow n e g l i g e n t i n t h e performance of a duty owed
p l a i n t i f f and t h a t defendant's negligence was t h e proximate cause
of p l a i n t i f f ' s i n j u r y . Jackson v. William Dingwall Ca., 145 Mont.
127, 399 P.2d 236.
Here, t h e record does not r e v e a l f a c t s which would demonstrate
t h a t defendant caused t h e condition o r t h a t he had knowledge of i t .
The injury-causing c o n d i t i o n was n o t of such a n a t u r e o r d u r a t i o n t h a t
defendant could have been charged w i t h c o n s t r u c t i v e n o t i c e .
The second, t h i r d and s i x t h appeal i s s u e s a l l r e l a t e t o
evidence o f f e r e d by p l a i n t i f f through witness William Smith t o
t h e e f f e c t t h a t a s e p a r a t e shooting apparently occurred i n t h e
a l l e y behind t h e Standard Bar a t about 1 1 : O O p.m. on t h e n i g h t i n
question. There was no proof o f f e r e d a s t o whether t h e sound
heard by Smith a c t u a l l y was a gunshot, and, i f so, who f i r e d t h e
shot. W concur with t h e t r i a l c o u r t ' s view t h a t p l a i n t i f f f a i l e d
e
t o demonstrate t h e probative value o r relevance of t h i s o f f e r e d
evidence. W f i n d t h e t r i a l c o u r t a c t e d reasonably and w i t h i n
e
i t s sound d i s c r e t i o n i n g r a n t i n g t h e p r e t r i a l motion t o exclude,
i n examining witness Smith o u t s i d e t h e presence of t h e jury,and
i n excluding p o r t i o n s of s m i t h ' s testimony r e l a t i n g t o gunshot
sounds.
Concerning t h e f o u r t h i s s u e on appeal--denial of p l a i n t i f f ' s
motion t o reopen h i s case-- t h i s Court s t a t e d i n P i c k e t t v. Kyger,
151 Mont. 87, 94, 439 P.2d 57:
" P l a i n t i f f a s s i g n s a s e r r o r t h e r e f u s a l of t h e
t r i a l c o u r t t o permit h e r t o reopen h e r c a s e a t
t h e conclusion of a l l t h e evidence. The record
d i s c l o s e s t h a t t h i s motion was made a f t e r motion
f o r d i r e c t e d v e r d i c t had been made and argued by
counsel, and t h a t p l a i n t i f f sought t o add t h e
testimony of one witness a s an expert on t h e ex-
p l o s i v e q u a l i t i e s of gas. This w i t n e s s ' s t e s t i -
mony was a v a i l a b l e t o p l a i n t i f f b e f o r e t h e c l o s e
of evidence i n t h e c a s e and no showing was made
a s t o t h e q u a l i f i c a t i o n s of t h e witness o r t h e
testimony t o be e l i c i t e d from him. O t h i s b a s i s ,
n
t h e t r i a l c o u r t denied p l a i n t i f f ' s motion t o reopen
h e r case. O r d i n a r i l y n e i t h e r d e n i a l of reopening
f o r testimony of a witness a v a i l a b l e during r e c e p t i o n
of evidence a t t r i a l n o r d e n i a l of reopening absent
a showing of a w i t n e s s ' s q u a l i f i c a t i o n s and t h e m a t e r i a l i t y
of h i s testimony c o n s t i t u t e s an abuse of d i s c r e t i o n by
t h e t r i a l c o u r t . There being no s p e c i a l circumstances
shown taking t h e i n s t a n t c a s e out of t h e operation of t h e
general r u l e , we hold t h e r e was no abuse of d i s c r e t i o n
i n r e f u s i n g t h e motion of p l a i n t i f f t o reopen. I I
See a l s o : Nadeau v. Texas Company, 104 Mont. 558, 69 P.2d
The trial record discloses no offer of proof by plaintiff
concerning the failure to call Miss Devorah Howe as a witness
during the reception of the evidence.
Concerning the fifth issue on appeal--denial of plaintiff's
motion for new trial--the motion was made on these grounds:
1 Irregularity in the proceedings of the court and adverse
)
party, by which plaintiff was prevented from having a fair trial.
2) Surprise which ordinary prudence could not have guarded
against.
3) Insufficiency of the evidence to justify the decision.
4) Error in law occurring at the trial excepted to by the
plaintiff.
Plaintiff's arguments in support of his motion for a new
trial have heretofore been discussed in this opinion with the
exception of ground number 2 which relates to surprise resulting
from the testimony of Kathryn Rolison at trial, a portion of which
has been quoted heretofore. Kathryn Rolison made a statement
to the Billings police department on April 19, 1970, which included
this pertinent excerpt:
h his male walked very close to our table. I
would say from two to three feet from our table.
He stood there for approximately one minute and
at the time he smiled at me and I smiled back.
I saw this male take a small gun from his right
pocket. Holding the gun about belt high he
started shooting. He held the gun in front of
him and I could see the sparks fly every time
he shot. He fired them very fast. I would esti-
mate that he shot five or six shots. I was stunned
and just couldn't believe it.''
The police report was available and Kathryn Rolison was
available for interview prior to the trial. Kathryn ~olison's
testimony at trial was consistent with her statement to the
police. It does not appear in the trial record that plaintiff
ever sought to interview this witness or requested a continuance
after her testimony was given. We find the trial court acted
within its sound discretion in denying plaintiff's motion for
a new t r i a l . Tigh v. College Park R e a l t y Co., 149 Mont. 358,
The judgment of t h e d i s t r i c t c o u r t i s affirmed.
Jfistices.