Bar Owners Take One on the Chin With Reasonable Care and Scope of Liability Review

Tort law involves the issue of sub-standard behavior.  In certain situations, a duty exists to conform one’s conduct to a particular standard, and liability can result if failure to attain that standard causes damages to someone else.  So, tort law holds parties accountable for their sub-standard actions or failure to act when they should.  The system, however, loses its impact when parties are not aware of what standard they will be held to before an injury occurs.

The Iowa Supreme Court’s adoption of a reasonable care standard and removal of the element of foreseeability of harm from the assessment of a party’s duty in Thompson v. Kaczinski, 774 N.W.2d 829 (Iowa 2009) continues to expand and frustrate this purpose. In a recent case involving the duty of a bar owner to protect one of its patrons from another patron, the Court further expanded the scope of inquiry to make it impossible for any person to know what the scope of their duty is or what actions involve reasonable care until after a jury reviews all possible actions that might, could, should, or even theoretically might have been taken. For the people who want to do the right thing, this standard makes it impossible for them to know how to act or how far they must go to ensure another person’s safety, which makes it even more troubling when there is also the uncertainty of whether any injury would actually occur.

The facts of the case were not in dispute. The plaintiff was a patron of the defendant, a bar.  The plaintiff was hanging out, drinking in the bar. Another individual was also in the bar. Unbeknownst to the employees of the bar, the plaintiff and the other individual had experienced a falling out a short time before the incident that occurred in this case. The plaintiff began to verbally harass the individual in the bar. The defendant’s employees cut off alcohol sales from the plaintiff due to his behavior, but he continued to harass the other individual. The employees decided to make the plaintiff leave the bar due to his behavior. At no time during this period did the harassed individual respond in any inappropriate manner to the harassment. Sometime after the plaintiff left the bar, the harassed individual went outside and punched the plaintiff, injuring him. The plaintiff sued the bar for its failure to protect him from the assault.

At trial, the bar filed for summary judgment.  The bar argued that the harassed individual’s actions were completely unforeseeable to the bar’s employees and based on the lack of foreseeability, the bar acted reasonably in kicking out the plaintiff to defuse the situation. The trial court granted the motion. The plaintiff appealed and argued that the trial court used the wrong inquiry and that the issue of the defendant’s actions as reasonable should be considered by the jury because questions of fact remained as to whether the defendant took all reasonable steps to ensure the plaintiff’s safety.

On appeal, the Court of Appeals agreed that the defendant had a duty to protect the plaintiff and that questions remained regarding foreseeability of the duty owed and the scope of liability. The defendant sought further review.

On review, the Iowa Supreme Court held that the general rule that a property owner has no duty to protect others from the harm of third parties unless the harm is foreseeable should be analyzed under the foreseeability standard articulated inThompson.  Thus, the issue of foreseeability should not be analyzed as to whether it imposes a duty on a landowner, but should be reserved for the fact finder to determine within the reasonable care standard even when the harm is caused by a third party. The Court held that tavern owners will always owe a duty to patrons under Restatement 3d §40 because the bar owner is in a superior position to protect the patron.

Additionally, the Court reasoned that bars create a physical environment where “instances of misconduct are likely to take place.” This creates foreseeability on the bar owner to take steps to protect others from injury “regardless of the source of risk.” The Court went further to state that the bar owner’s duty extends to protect the risk that patrons will act unreasonably in a manner that could imperil their own safety.  Because of this self-imperil duty, the risk to the plaintiff of harm caused by the harassed, but peaceful patron, could not be deemed unforeseeable as a matter of law. Analyzing the situation after the fact, the Court concluded that there were several things the bar could have done, such as calling the police even though there was no apparent risk of a physical altercation, escorting the troublemaker to his car even though there didn’t appear to be any threat to him, or verifying that the harassed patron had not slipped out to cause harm outside the bar.

Despite this, the Court stated that even though there is a duty to act, the bar owner is not strictly liable for harm. According to the Court’s logic, though, the bar merely has to show to a jury that it acted with reasonable care. This cannot, however, be determined until the case proceeds through years of discovery, depositions, evidence collection, and a trial presented to a jury. So every bar owner must expend the time, effort, and cost of a full trial to plead its case before a jury that it acted reasonably because judges no longer review foreseeability issues, which if judges could review could eliminate cases in which the undisputed evidence shows the bar acted in a manner that was reasonable based on the foreseeable risk known to the business at the time it needed to act.

The Court next addressed the issue of the defendant’s “scope of liability.”  The Court noted that scope of liability is also a factual inquiry regarding whether the defendant’s actions were tortious. Thus, the jury must determine whether the type of harm that occurred is among the reasonably foreseeable potential harms that make an actor’s conduct negligent. The Court stated that when there are different plausible characterizations of the range of harms arising from the defendant’s conduct requiring the court to draw an arbitrary line, the jury should decide. In this case, according to the majority opinion, the plaintiff raised a plausible question for the jury as to whether the scope of liability for the defendant was broad enough to encompass any physical altercation within a bar when patrons engage in verbal conflict.

A dissent was filed in this case arguing that summary judgment should have been granted because the undisputed facts in this case showed the bar kicked out the troublemaker and there was no indication of any need for further actions.

With the further clarification and expansion of the reasonable care standard and the issue of foreseeability being left to the decision of the jury, defendants (and potential defendants) are left with no clear idea of what they should do in a particular case or whether they must do everything to prevent something – no matter how remote. Is it fair to defendants that the only way to determine whether their actions were tortious- no matter how remote the harm might have been- is to bear the expense of a trial and be told after expending these resources that what they did was enough? If personal injury cases must always be decided by the jury, then how do businesses, landowners, and citizens do the right thing to prevent harm if the right thing is never known until years after the incident? While the idea that juries should decide these matters can be seductive, it simply does not promote the principle that people should know what behavior is acceptable at the time the risk of injury becomes foreseeable to them. By removing foreseeability from the implementation of a duty, no one can really be sure how or when they should act. The practical effect of the Court’s approach to tort law is that there is no way to advise businesses, landowners, or individuals about clear expectations of their responsibility to others.  Such parties are left with the need to constantly look over their shoulder in case some remote risk is missed or some possible action was not taken to prevent a risk.  Hoyt v. Gutterz Bowl & Lounge, L.L.C., No. 11-0085, 2013 Iowa Sup. LEXIS 33 (Iowa Sup. Ct. Apr. 5, 2013).