From the desk of Jeff Eberhard: What duty does a bar have to protect nearby persons from patrons it ejects from its establishment?
Claims Pointer: (1) A bar does not have a general “take charge” duty to control and prevent a person it ejects from its premises from having others. (2) Business owners owe invitees a duty “to keep premises reasonably free of physically dangerous conditions,” including potential harm by a third party. This duty does not automatically extend to injuries sustained on areas immediately surrounding, but off, the business’s premises.
Oshatz v. GinSing, LLC., in the Court of Appeals of the State of Washington, Division I, No. 66101-9-I, — P3d —- (May 14, 2012) (unpublished).
After leaving work one day, Bradley Crossen drank large quantities of alcohol before visiting The Triple Door, a downtown Seattle bar adjacent to a restaurant. The bar and the restaurant had the same owner. Crossen was drunk when he arrived at the bar and consumed even more alcohol while at the bar, but he did not recall how he got the drinks. There was no evidence that the bar’s employees supplied Crossen any alcohol. In fact, Crossen was denied alcohol by one bartender, which made him angry. Bar employees watched Crossen push one patron and threaten to assault another patron. Bar employees immediately intervened and escorted Crossen outside where he calmed down.
Tanya Oshatz was walking on the sidewalk in front of the bar after having dinner at the adjacent restaurant when suddenly, Crossen stepped in front of her and yelled, “Whoa . . . where did YOU come from?” Then, he picked her up and dropped her on the pavement which injured her right shoulder. Bar employees observed the incident and ran to Oshatz’s aid. Crossen was later arrested and convicted of third degree assault.
Oshatz sued Crossen and the owner of the bar and restaurant. Oshatz alleged that the bar was negligent under multiple theories, including negligent overservice of alcohol; negligent failure to follow or enact procedures and policies that control intoxicated patrons; and negligent failure to warn of dangerous conditions on or near its business property. The trial court granted summary judgment in favor of the bar owner on all claims.
On appeal, the court first addressed the alleged negligent overservice of alcohol he consumed while at the bar. The Court determined that since Crosson testified he did not recall how he obtained the drinks, and there was no other evidence Crossen was served any drinks by bar employees, summary judgment in favor of the bar on that issue was appropriate.
Second, the Court of Appeals addressed whether the bar breached any duty to Oshatz as a member of the public or a business invitee. At trial, the only evidence of such duty was testimony from Oshatz’ expert that a bar’s duty to exercise reasonable care for its customers’ safety extends to the space immediately surrounding the establishment. The Court noted that while expert testimony can establish a standard of care, the actual existence of a duty is a question of law that must be determined by the court, not expert testimony.
Oshatz also claimed the bar had a “take charge” duty to control and prevent Crossen from harming others. The Court explained that the relationship between a bar and its patrons does not qualify as a “take charge” type of relationship because it is not “established” or “continuing.”
Third, the Court of Appeals addressed whether Oshatz was a business invitee, a person who enters a business’s premises for the economic benefit of the business. Generally, business owners owe invitees a duty to keep their premises reasonably free of physically dangerous conditions, including potential harm by a third party. The Court concluded that even if Oshatz was a business invitee, her injury occurred off the bar’s premises; thus, summary judgment in favor of the bar and dismissal of the case was appropriate.
NOTE: This opinion has not been published. It is provided to demonstrate how the court approaches the issues involved in the case. It cannot be cited as authority to a court of law.
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