Opinion
No. 4-030 / 03-0653
Filed February 27, 2004
Appeal from the Iowa District Court for Black Hawk County, George L. Stigler, Judge.
Timothy Knebel appeals the district court's order granting summary judgment in favor of Ka-Boos Bar Grill. AFFIRMED.
Bryan Tingle of Tingle, Knight, Webster and Juckette P.L.C., Des Moines, for appellant.
David Riley of Yagla, McCoy Riley, P.L.C., Waterloo, for appellee.
Considered by Sackett, C.J., and Vaitheswaran and Eisenhauer, JJ.
Timothy Knebel and Derrick Kacher were patrons of the Ka-Boos Bar Grill (the Bar) in Waterloo. They had no interaction inside the Bar but, once Knebel left, Kacher assaulted him. Knebel sued the Bar, alleging premises liability, controlling conduct of third persons, and general negligence. The Bar moved for summary judgment. The district court granted the motion and this appeal followed.
A dram shop claim that was dismissed is not at issue on appeal.
Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Martinko v. H-N-W Assoc., 393 N.W.2d 320, 321 (Iowa 1986).
The parties agree that the three theories of liability are "essentially identical in application and scope." They also agree that the case is governed by the Restatement (Second) of Torts section 344 (1965), addressing acts of third persons on premises open to the public. That provision states:
A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to
(a) discover that such acts are being done or are likely to be done, or
(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.
Restatement (second) of Torts § 344, at 223-24 (1965) (emphasis added).
The fighting issue is whether the Bar owed a duty under this provision. The Bar claims it did not, because under the terms of Restatement section 344, the offending act must have taken place while the person was "upon the land" See Martinko, 393 N.W.2d at 323 (Carter, J. dissenting) (stating duty under section 344 established if premises held open to public and "the injured party was on the land for business purposes.") Knebel counters that whether the act took place on or off the Bar's premises is disputed. He claims there is testimony that the act occurred "just as he exited [the Bar's] front door." We disagree.
Knebel admitted in a deposition that he was thrown through the window of a property adjacent to the Bar. He testified as follows:
Q.Now, this assault that happened — this all occurred outside of the bar; is that correct? A. Correct.
Q.Now, this Young's Cosmetology window, was that — the Young's building, was that next door to Ka-Boos? A. Yeah. It was directly right next door.
Q.Okay. And you were right in front of that area when this assault happened; is that correct? A. I just walked out the door and barely got around the corner before he grabbed me.
Q.Okay. Is the window right next door to Ka-Boos? A. Yeah.
We are not convinced reasonable minds would draw an inference from this testimony that Knebel was still on the Bar's premises when the act occurred. See Martinko, 393 N.W.2d at 321 (stating summary judgment not proper if reasonable minds could draw different inferences and conclusions from facts).
The case of Davis v. Kwik-Shop, Inc., 504 N.W.2d 877 (Iowa 1993) is instructive. Although decided under Restatement (Second) of Torts section 315 rather than section 344, the court there affirmed the district court's grant of summary judgment in favor of a grocery store adjacent to the lot on which the plaintiff was injured. The court stated, "[if] the assailants were Hy-Vee's invitees at one time, they ceased to be invitees when they left the Hy-Vee employee's parking lot and entered on to Kwik-Shop premises." Davis, 504 N.W.2d at 879.
Restatement (Second) of Torts § 315, at 122 (1965) provides,
There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or
(b) a special relation exists between the actor and the other which gives to the other a right to protection.
In the alternative, even if the act occurred on the Bar's premises, we agree with the Bar that there was no breach of duty, as the owners did not know and had no reason to know that the assault was about to occur. See Restatement (Second) of Torts § 344 cmt. f, at 225-26. Knebel acknowledged in his deposition that he had no conversation with Kacher inside the Bar and, indeed, "didn't even know who he was." It was only after he "walked out the door" and "took a left" that he heard someone speak to him. He saw Kacher only after the police came. Finally, Knebel conceded he had no "facts or evidence that any of the owners in the Bar knew that Mr. Katcher (sic) was going out that evening to assault" him.
These facts distinguish the case from Regan v. Denbar, Inc., 514 N.W.2d 751 (Iowa Ct. App. 1994), a case cited by Knebel. There, an altercation first occurred inside a bar. Id. at 753. The bartender intervened but refused to call the police. Id. The bartender sent the victims out the back door, refusing to allow them to stay inside and wait for the police. Id. As the bartender did so, he saw the assailant outside and spoke to him. Id. The bartender then closed the door to the bar. On these facts, our court had no trouble concluding that there was sufficient evidence to survive a directed verdict motion.
We conclude that on the undisputed material facts, Knebel could not establish a duty or breach of duty by the Bar. Therefore, the Bar was entitled to summary judgment.