Devine v. McLain

YETKA, Justice

(dissenting).

I agree with the majority opinion that the principal issue in this case is whether Al’s Bar breached a duty to protect its patrons; to put it even more specifically, whether the act was a foreseeable event in view of the specific acts which took place in Al’s Bar that afternoon. The majority states that in this case there is no evidence from which a jury could have concluded that the actions of the defendant McLain were foreseeable by the bar. I dispute this statement for the following reasons:

1.The McLains were new residents of Belle Plaine. The bartender admitted in testimony that she was “leery” of the McLains when they entered the bar and feared there was a possibility of trouble.

2. As soon as the McLains had ordered drinks and paid for them, they complained they were shortchanged and the bartender corrected the matter.

3. Mrs. McLain was scantily and provocatively dressed.

4. The intense rage expressed on the part of Mrs. McLain when she swung a chair at the plaintiff indicated that she was totally out of control.

5. The majority opinion admits that the plaintiff and his friends could have had as many as 20 drinks that day. They were obviously intoxicated and should have been thrown out of the establishment. The owner himself indicated that, as the events had been described to him, he would have removed Mr. Devine and his friends from the bar if he had been present; yet, his bartender did nothing about it.

6. Mrs. McLain made a definite threat at the door when she and her husband were leaving.

Thus, what did occur was completely foreseeable under the circumstances. Is it unreasonable for a bartender, when that bartender has witnessed at least two assaults and possibly crimes being committed, to call the police and seek aid? I think not.

Further, appellant, in his brief, mentions seven specific steps that could or should have been taken, which I reiterate here:

1. Mrs. Ahrens could have ejected Chard and Devine and their friends before the fight between Devine and Mrs. McLain. There were threats being made by someone in that group.
2. Once the fight began she could have taken a more active part in breaking it up, letting the parties know that such conduct would not be tolerated.
3. She could have called the police even before the McLains left to determine who had been at fault and to be certain that all disorderly persons were removed and order restored.
*8324. Once she heard the threat that Darlene was “coming back” she could have called the police reporting the fight and the following threat or she could have warned Dale.
5. She could have ejected Dale and his friends after hearing the threat so there would have been no one for Mrs. McLain to come back to.
6. She could have locked up the bar and sent everyone home allowing minds to sober and tempers to cool.
7. She could have called Howard Guckenberg and sought his advice as to her next move.

Accordingly, I would reverse and remand for a new trial.