No. 12378 

IN THE SUPREME COURT OF THE STATE, OF MONTANA 

1973 

WILLIAM KIPP, 

Plaintiff and Appellant, 

BILLY WONG, d/b/a 

The Standard Bar, 

Defendant and Respondent. 

Appeal from : District Court of the Thirteenth Judicial District , 

Honorable C. B. Sande, Judge presiding. 

Counsel of Record: 

For Appellant : 

Joseph P. Hennessey argued, Billings, Montana 

For Respondent : 

Crowley, Kilbourne, Haughey, Hanson and Gallagher, 

Billings, Montana 

Stephen H. Foster argued, Billings, Montana 

Filed : 

JAN 10 lq4 

- 

Submitted : November 28, 1973 

Decided : JAM 1 0 1~- 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This is an action for damages brought by plaintiff William 

Kipp in the district court of Yellowstone County against Billy Wong, 

owner of the Standard Bar, a public bar, as a result of a gunshot 

wound received by plaintiff while he was a patron in defendant's 

bar. 

Plaintiff brings this appeal from a judgment entered 

by the district court on a directed verdict in favor of defendant 

bar owner. 

On April 19, 1970, at about 1:30 a.m., plaintiff William 

Kipp was a customer of the Standard Bar which is located on the 

south side of Billings, Montana. One Gus Gardiner entered the 

bar, took a gun from his pocket and rapidly fired three shots. 

One shot struck William Kipp in the left side of the abdomen 

causing injuries which resulted in the removal of his left kidney. 

One shot struck and injured Charles Linderman, and one shot struck 

Beverly Linderman, his wife, causing her death. 

The Standard Bar is a retail beer and liquor establishment 

owned by operated by Billy Wong since 1967. On the night of the 

shootings eight persons were employed in the Standard Bar: the 

defendant Billy Wong, his son and a woman as bartenders, two barmaids, and a three-piece dance band. Billy Wong testified he 

personally checked identification and kept order in the bar; that 

fights occasionally occurred in the bar but he was usually able to 

stop them. If he was unable to stop a fight, he would telephone the 

police, Wong further testified that he had been a bar operator 

since 1950, and no shots had been fired in his bars prior to April 

19, 1970. 

Defendant Wong was 59 years old, five feet seven inches tall 

and weighed 115 pounds at the time this incident occurred. He 

stated that in his experience he was better able to keep order 

personally by using nonviolent means than when he had employed a 
It bouncer", because he could usually gain the respect of customers 

who would attempt to fight a bouncer. He kept a loaded shotgun and 

pistol behind the bar. 

Billy Wong testified he had known Gus Gardiner as a 

customer for a "couple of years", during which time Gardiner had 

never caused trouble nor given Wong occasion to order him to leave 

the bar. 

At about 11:OO p.m. on the night the shooting occurred, 

Gus Gardiner had been in the bar in the company of two other men, 

Phillip Holiday and Colvin Kingfisher. According to William 

Smith, plaintiff's witness and a customer of the bar, a dispute 

between Kingfisher and an unidentified man in the bar resulted 

in Kingfisher pushing the unidentified man out the back door and 

into the alley. Smith testified he observed a fight which took 

place in the alley between Kingfisher and the unidentified man, 

with Holiday and Gus Gardiner present but apparently not involved 

in the fight. 

The trial court granted an objection to smith's attempted 

testimony that shortly after he reentered the bar he heard a 

sound like a gunshot from the vicinity of the alley. In this 

connection, a motion in limine was filed by defendant prior to 

trial seeking to exclude Smith ' s testimony concerning the "gunshot soundf'. Smith was permitted to testify, over objection, 

that he had known Gardiner for five to seven years and his reputation for peace and quiet in the community was "pretty bad". 

Jose Romero, a bartender at the Arcade Bar located near 

the Standard Bar, testified he did not know Gus Gardiner's reputation in the community, but his reputation in the Arcade was bad. 

Defendant's objection to Romerots testimony was sustained. 

John Nelson, a musician in the dance band playing at the 

Standard Bar the night the shootings occurred, testified that he 

had a conversation with Billy Wong after the shooting and Wong 

stated that Gus Gardiner was always in trouble. He further testified, however, that Billy Wong said nothing to indicate Gus 
Gardiner had ever caused trouble in the Standard Bar, and that 

the Standard Bar was peaceful on the evening in question until 

the time of the shooting. 

Billy Wong testified he was aware that Gus Gardiner had 

been in the Standard Bar on the evening in question, but was 

unaware of ~ardiner's involvement in any altercation, inside or 

outside the bar. Wong stated Gardiner left the bar around 

11:OO p.m. and that he did not see Gardiner again until 1:30 

a.m., when the shooting occurred. 

The only witness who testified concerning the amount of 

time which elapsed between Gardiner's entry into the bar and his 

firing the shots was Kathryn Rolison, a customer, who stated: 

"Q. Would you describe what you saw? A. Seeing the 

man walk in, he walked around the dance floor and 

stopped at the table and turned around and smiled, and 

then turned and pulled a gun out of his pocket and 

started shooting. 

"Q. The point number 2 [referring to a diagram] shows 

about where he was standing when he shot? A. Yes. 

"Q. And that was right next to your table? A. Yes. 

"Q. How long did he stand there before he pulled 

the gun out? A. Just momentarily. 

Q. Did he look at you? A. Yes. 

"Q. What was his expression? A. Well, he just kind 

of smiled and turned around. 

"Q. What did he do then? A. He started shooting. 

"Q. Did he say anything before he started shooting? 

A. No. 

"Q. Did there appear to be anybody with him? A. No. 

"Q. Did he fire the shots in quick succession? A. Yes. I I 

Other witnesses testified the shooting appeared to coincide with an argument or fight between two women. However, no 

connection between the incidents was established. 

William Kipp, Charles Linderman and Beverly Linderman, 

the persons struck by the three bullets, did not know Gus Gardiner. 

~efendant's motion for directed verdict was granted by the 

trial court at the close of the evidence. Plaintiff made a subse- 
quent motion for leave of the court to reopen the case and 

permit an additional witness to be called, a Miss Devorah Howe. 

Miss Howe was one of the women fighting at the time the shooting 

occurred. An excerpt from a written statement she made to the 

Billings police on June 11, 1970, is contained in the record and 

indicates Miss Howe heard the shots but did not see the shooting. 

This motion and plaintiff's motion for a new trial were denied. 

On appeal, plaintiff assigns six issues for review: 

Whether the trial court erred: 

1) In directing a verdict for the defendant. 

2) By permitting the defendant to make an oral motion 

on the day of trial to limit the plaintiff's voir dire and proof. 

3) In limiting the testimony of witness William Smith 

to what he saw and excluding what he heard. 

4) In denying la in tiff's motion to reopen his case. 

5) In denying plaintiff's motion for a new trial. 

6) In permitting the dcifendant to voir dire the witness 

William Smith in the absence of the jury. 

Concerning the first issue, plaintiff relies on Nevin v. 

Carlasco, 139 Mont. 512, 514, 365 P.2d 637, wherein the Court 

stated : 

It Turning to the remaining specifications of error, 

we find in 30 Arn.Jur., 5 523, p. 823, the general 

obligation of duty and liability to patrons on the 

premises as follows: 'It has been held that the 

proprietor of a liquor establishment for on-premises 

consumption does not hold himself out as an insurer 

of the safety of his patrons and is not bound to the 

same degree of care toward them as devolves on innkeepers and carriers, although he does owe them the 

duty of exercising reasonable care to protect them 

from injury at the hands of a fellow patron, and of 

seeing to it that a patron is not injured either by 

those in his employ or by drunken or vicious men 

whom he may choose to harbor. 1 

I I Reviewing leading cases from other'jurisdictions, 

[citing cases], we find the general rule to be that 

the duty of a tavern keeper to protect a patron from 

injury by another arises only when one or more of 

the following circumstances exist: 

(1) A tavern keeper allowed a person on the 

premises who has a known propensity for fighting. 
(2) The tavern keeper allowed a person to 

remain on the premises whose conduct had become 

obstreperous and aggressive to such a degree the 

tavern keeper knew or ought to have known he endangered others. 

(3) The tavern keeper had been warned of danger 

from an obstreperous patron and failed to take suitable measures for the protection of others. 

(4) The tavern keeper failed to stop a fight 

as soon as possible after it started. 

(5) The tavern keeper failed to provide a 

staff adequate to police the premises. 

(6) The tavern keeper tolerated disorderly 

conditions. I1 

See also: Ganger v, Zook, 141 Mont. 214, 377 P.2d 101. 

Nevin was cited by the California court in Slawinski v. 

Mocettini, 31 Cal.Rptr. 613, 616, 217 C.A.2d 192, quoting the six 

listed circumstances determinative of negligence. The facts in 

Slawinski were analogous to those in the instant case: Slawinski 

was in a bar owned by Mocettini and had a scuffle with one Wilson, 

after which Slawinski remained in the bar and Wilson left. About 

thirty minutes later Wilson returned with a gun and killed Slawinski. 

The Slawinski case resulted in a jury verdict for slawinski's 

survivors, after which the trial court granted the bar owner's 

motion for a new trial. The California District Court of Appeals 

affirmed the new trial order, stating in pertinent part: 

"While the standard of care is that of an ordinarily 

prudent person, yet it must be realized that reasonable care is a relative term in that the amount of 

care must be commensurate with the risks and danners 

attending the activity being pursued. * * * The Zest 

of whether the duty of reasonable care is discharged 

is the probability or foreseeability of injury to a 

plaintiff. 

1 I In the instant case, although there was conflicting 

evidence as to whether Wilson had a reputation as a 

hot tempered person, it was uncontroverted that the 

respondents and their employees were not aware of 

this fact and had never experienced any trouble with 

Wilson. * * * There is no evidence that respondents 

had any way of knowing that Wilson would return." 

(Emphasis added). 

In the instant case, there is the testimony of William 

Smith, Jose R-omero, and John Nelson tending to indicate that Gus 

Gardiner had a bad reputation in the community for peace and quiet. 
However, their testimony did not directly contradict Billy Wong's 

testimony that Gus Gardiner had never caused trouble in the Standard 

Bar prior to the night in question. Even assuming, arguendo, the 

evidence was sufficient to create a factual issue as to whether 

Wong should have had notice of Gardiner's dangerous propensities, 

that issue is rendered moot in the face of the uncontradicted evidence that Wong had no way of knowing Gardiner would, or did in 

fact, return to the bar; and,that Gardiner commenced shooting without any appreciable lapse of time from when he entered the bar and 

without any threatening words or acts which might have constituted 

a warning to Wong or his employees. 

The fundmental principle of tort law involved is analogous 

to the body of law set forth in the various "business invitee slip 

and fall" cases decided by this Court, i.e.: there is no negligence 

unless (1) the dangerous or injury-causing condition was created 

by the proprietor; (2) the proprietor had knowledge of the dangerous or injury-causing condition; or (3) the dangerous or injurycausing condition was of such nature and duration that the proprietor 

is charged with constructive notice thereof. McEnaney v. City of 

Butte, 43 Mont. 526, 117 P. 893; Demaree v. Safeway Stores, Inc., 

Mon t . , 508 P.2d 570, 30 St.Rep. 405. 

~ikewise, the factual issue as to whether Wong employed an 

adequate staff to police his premises is rendered moot under the 

facts. In Weihert v. Piccione, 273 Wisc. 448, 78 N.W.2d 757,762, 

cited by this Court in Nevin, the Wisconsin Supreme Court determined 

an analogous issue in the defendant's favor, stating in pertinent 

part : 

 h he [trial] court was also of a mind that the 

failure to have provided 'guards' or 'bouncers' 

in the establishment did not constitute causal 

negligence, for the reason that had such been 

~roviaed, it cannot be assumed that they would 

have prevented the assault which occurred instanetly and without warning. " (Emphasis added). 

In order for the trial court to submit the issue of liability to the jury, the plaintiff must produce evidence which, if 

viewed in the light most favorable to plaintiff, demonstrates that 
defendant was somehow negligent in the performance of a duty owed 

plaintiff and that defendant's negligence was the proximate cause 

of plaintiff's injury. Jackson v. William Dingwall Ca., 145 Mont. 

127, 399 P.2d 236. 

Here, the record does not reveal facts which would demonstrate 

that defendant caused the condition or that he had knowledge of it. 

The injury-causing condition was not of such a nature or duration that 

defendant could have been charged with constructive notice. 

The second, third and sixth appeal issues all relate to 

evidence offered by plaintiff through witness William Smith to 

the effect that a separate shooting apparently occurred in the 

alley behind the Standard Bar at about 11:OO p.m. on the night in 

question. There was no proof offered as to whether the sound 

heard by Smith actually was a gunshot, and, if so, who fired the 

shot. We concur with the trial court's view that plaintiff failed 

to demonstrate the probative value or relevance of this offered 

evidence. We find the trial court acted reasonably and within 

its sound discretion in granting the pretrial motion to exclude, 

in examining witness Smith outside the presence of the jury,and 

in excluding portions of smith's testimony relating to gunshot 

sounds. 

Concerning the fourth issue on appeal--denial of plaintiff's 

motion to reopen his case-- this Court stated in Pickett v. Kyger, 

151 Mont. 87, 94, 439 P.2d 57: 

"Plaintiff assigns as error the refusal of the 

trial court to permit her to reopen her case at 

the conclusion of all the evidence. The record 

discloses that this motion was made after motion 

for directed verdict had been made and argued by 

counsel, and that plaintiff sought to add the 

testimony of one witness as an expert on the explosive qualities of gas. This witness's testimony was available to plaintiff before the close 

of evidence in the case and no showing was made 

as to the qualifications of the witness or the 

testimony to be elicited from him. On this basis, 

the trial court denied plaintiff's motion to reopen 

her case. Ordinarily neither denial of reopening 

for testimony of a witness available during reception 

of evidence at trial nor denial of reopening absent 

a showing of a witness's qualifications and the materiality 

of his testimony constitutes an abuse of discretion by 

the trial court. There being no special circumstances 

shown taking the instant case out of the operation of the 

general rule, we hold there was no abuse of discretion 

in refusing the motion of plaintiff to reopen. I I 

See also: Nadeau v. Texas Company, 104 Mont. 558, 69 P.2d 
The trial record discloses no offer of proof by plaintiff 

concerning the failure to call Miss Devorah Howe as a witness 

during the reception of the evidence. 

Concerning the fifth issue on appeal--denial of plaintiff's 

motion for new trial--the motion was made on these grounds: 

1) Irregularity in the proceedings of the court and adverse 

party, by which plaintiff was prevented from having a fair trial. 

2) Surprise which ordinary prudence could not have guarded 

against. 

3) Insufficiency of the evidence to justify the decision. 

4) Error in law occurring at the trial excepted to by the 

plaintiff. 

Plaintiff's arguments in support of his motion for a new 

trial have heretofore been discussed in this opinion with the 

exception of ground number 2 which relates to surprise resulting 

from the testimony of Kathryn Rolison at trial, a portion of which 

has been quoted heretofore. Kathryn Rolison made a statement 

to the Billings police department on April 19, 1970, which included 

this pertinent excerpt: 

 h his male walked very close to our table. I 

would say from two to three feet from our table. 

He stood there for approximately one minute and 

at the time he smiled at me and I smiled back. 

I saw this male take a small gun from his right 

pocket. Holding the gun about belt high he 

started shooting. He held the gun in front of 

him and I could see the sparks fly every time 

he shot. He fired them very fast. I would estimate that he shot five or six shots. I was stunned 

and just couldn't believe it.'' 

The police report was available and Kathryn Rolison was 

available for interview prior to the trial. Kathryn ~olison's 

testimony at trial was consistent with her statement to the 

police. It does not appear in the trial record that plaintiff 

ever sought to interview this witness or requested a continuance 

after her testimony was given. We find the trial court acted 

within its sound discretion in denying plaintiff's motion for 
a new trial. Tigh v. College Park Realty Co., 149 Mont. 358, 

The judgment of the district court is affirmed. 

Jfistices.