Opinion
Dec. 1, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 471
Eugene F. Costello, David L. Kofoed, Declan J. O'Donnell, Denver, for plaintiff in error.
Wood, Ris & Hames, F. Michael Ludwig, Denver, for defendants in error.
SILVERSTEIN, Chief Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
Plaintiff in error (Repka) brought action against Ufema and his employer, Rentalent, to recover damages for an injury received from one Brooks, a patron at a bowling alley operated by Rentalent and managed by Ufema. At the close of Repka's case the trial court granted defendants' motion for a directed verdict. We affirm.
Repka's evidence, considered in the light most favorable to him, shows that he had been a professional bowler, was a frequent patron of the bowling establishment, was well acquainted with defendant Ufema and knew his assailant Brooks slightly. He was familiar with bowling and with what normally went on in bowling houses. On the night of the incident Brooks had been drinking 3.2 beer and a drink of whiskey which had been given him by Ufema although whiskey was not sold on the premises. Brooks was bowling and was betting other patrons and Ufema that he could bowl his average. He was losing his bets regularly and Ufema suggested to Repka that he should 'get in on the action.'
Repka declined. However when Brooks later urged Repka to bet, Repka started betting with him. When a dispute arose between the two as to the amount of a bet, Repka gestured with his arms and at this point Brooks struck Repka in the mouth. Repka fell and struck his head causing the injuries complained of.
The evidence also showed that about six months before this event Brooks had been in a fight started by another patron in which Brooks had struck one blow only, in defense.
Repka claims defendants were guilty of negligence in Ufema's giving Brooks a drink of whiskey, in permitting betting on the premises, and in permitting Brooks to participate in these activities while knowing of his 'violent disposition.'
The evidence fails to support any of these claims. The law is well settled in Colorado that the proprietor of a public place is not an insurer of the safety of his patrons. He has the duty to use ordinary care and diligence to protect them while lawfully on the premises. Cubbage v. Leep, 137 Colo. 286, 323 P.2d 1109; Carr v. Mile High Kennel Club, 125 Colo. 251, 242 P.2d 238. The language of Carr, supra, is apposite here. 'From the evidence we see no actionable negligence on the part of defendant, and the claimed negligence is so remote that defendant cannot be held liable. There was no real dispute as to the material facts, and when the trial court apparently determined therefrom that the injury was the proximate result of the actions of a third party, it properly withdrew the case from the jury and determined the question as one of law; therefore, its judgment is affirmed.'
The judgment is affirmed.
COYTE and DUFFORD, JJ., concur.