No. 12378 INTHE 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 ThirteenthJudicial 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: 

## JAN10lq4 -Submitted

### : November 28, 1973 Decided:

## JAM 1 

## 01~-

### Mr. Justice Gene B. Daly delivered the Opinion of the Court.

This 

### isan action for damages brought by plaintiff William Kipp in the district court of Yellowstone County against BillyWong,

owner of the Standard Bar, a public bar, as a result of a gunshot wound received by plaintiff while he was a patron indefendant'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, atabout 1:30 a.m., plaintiff William Kipp was a customer of the Standard Bar which islocated 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 struckWilliam Kipp in the left side of the abdomen causing injurieswhich resulted in the removal of his leftkidney. One shot struck and injured Charles Linderman, and one shot struck Beverly Linderman, hiswife, causingher death. The Standard Bar isa retailbeer and liquor establishment owned by operated by BillyWong since 1967. On the night of the shootings eight persons were employed inthe Standard Bar: the defendant BillyWong, his son and a woman asbartenders, two barmaids, and a three-piece dance band. BillyWong testifiedhe personally checked identification and kept order in the bar; that fights occasionally occurred inthe 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 inhisbars prior toApril 19, 1970. Defendant Wong was 59 years old, five feet seven inches tall and weighed 115 pounds atthe time this incident occurred. He stated that inhis experience he was better able tokeep order personally by using nonviolent means than when he had employed aIt 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. BillyWong testified he had known Gus Gardiner as a customer for a "couple of years", duringwhich time Gardiner had

never caused trouble nor givenWong occasion toorder him to leave the bar. Atabout 

### 11:OO p.m. on the night the shooting occurred, Gus Gardiner had been inthe bar inthe company of two other men, Phillip Holiday and Colvin Kingfisher. According toWilliam Smith, plaintiff's witness and a customer of thebar, a dispute between Kingfisher and an unidentified man inthe bar resulted inKingfisher pushing the unidentified man out the back door and into the alley. Smith testified he observed a fightwhich took place in the alleybetween Kingfisher and the unidentified man, with Holiday and Gus Gardiner present but apparently not involved inthe fight. The trialcourt granted an objection to smith's attempted testimony that shortly afterhe reentered thebar he heard a sound likea gunshot from the vicinity of the alley. In this connection, a motion inliminewas filedby 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 hisreputation for peace and quiet inthe 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 inthe community, but hisreputation inthe Arcade was bad. Defendant's objection to Romerots testimony was sustained. John Nelson, a musician inthe dance band playing atthe 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 introuble. He further testified, however, that BillyWong saidnothing to indicate GusGardiner had ever caused trouble inthe Standard Bar, and that the Standard Bar was peaceful on the evening inquestion until the time of the shooting. BillyWong testified he was aware that Gus Gardiner had been in the Standard Bar on the evening inquestion, but was

unaware of ~ardiner's involvement inany altercation, inside or outside thebar. 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 onlywitness 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 describewhat you saw? A. Seeing the man walk in, he walked around the dance floor and stopped atthe 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 [referringto a diagram] shows about where he was standing when he shot? A. 

### Yes. "Q. And that was right next toyour table? A. 

### Yes. 

### "Q. How long did he stand there before he pulled the gun out? A. Just momentarily. 

### Q. Did he look atyou? A. Yes. "Q. What was his expression? A. Well, he just kind of smiled and turned around. "Q. What didhe do then? A. He started shooting. 

### "Q. Did he say anythingbefore he started shooting? A. No. "Q. Did there appear tobe anybody with him? A. No. "Q. Did he firethe shots inquick succession? A. Yes. II Other witnesses testified the shooting appeared to coincidewith an argument or fight between two women. However, no connection between the incidents was established. William Kipp, Charles Linderman and Beverly Linderman, the persons struckby the three bullets, did not know Gus Gardiner. ~efendant's motion for directed verdict was granted by the trialcourt atthe close of the evidence. Plaintiff made a subse-

### quent motion for leave of the court to reopen the case and permit an additionalwitness to 

### be called, a Miss Devorah Howe. Miss Howe was one of the women fighting at the time the shooting occurred. An excerpt froma 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 anew trialwere denied. On appeal,plaintiff assigns six issues for review: Whether the trial court erred: 1) Indirecting 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 ofwitness William Smith to what he sawand 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) Inpermitting 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 30Arn.Jur., 5 523,p. 

### 823, the general obligation of duty and liability to patrons on the premises as follows: 'Ithas 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

II



### Reviewing leading cases from other'jurisdictions, [citingcases], we find the general rule to be that the duty of a tavern keeper to protect a patron from injuryby another arises onlywhen one or more of the following circumstances exist: (1) 

### A tavern keeper allowed a person on the premises who has a knownpropensity 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 knownhe endangered others. (3) The tavernkeeperhad 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 tavernkeeper failed to provide a staff adequate to 

### police the premises. (6) The tavernkeeper tolerated disorderly conditions.I1 

### See also: Ganger 

### v, Zook, 141Mont. 214, 377 P.2d 101. Nevin was citedby 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 scufflewith one Wilson, afterwhich Slawinski remained in the bar and Wilson left. About thirty minutes laterWilson returnedwith a gun and killed Slawinski. The Slawinski case resulted in a juryverdict 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 commensuratewith the risks and danners attending the activity being pursued.

# **

# * The Zest of whether the duty of reasonable care is discharged is the probability or foreseeabilityof injury to a plaintiff.

1I

### In the instant case, although therewas conflicting evidence as to whether Wilson had a reputation as a hot tempered person, it was uncontroverted that the respondents and their employeeswere not aware of this fact and had never experienced any troublewith Wilson. 

# *** There is no evidence that respondents had any way of knowing that Wilsonwould return."

(Emphasis added). In the instant case, there is the testimony of William Smith, Jose R-omero,and JohnNelson tending to indicate that Gus Gardiner had a bad reputation in the community for peace and quiet.However, their testimony did not directlycontradict BillyWong's testimony that Gus Gardiner had never caused trouble in the Standard Bar prior to the night inquestion. Even assuming, arguendo, the evidence was sufficient tocreate a factual issue as towhether Wong should have had notice of Gardiner's dangerous propensities, that issue 

### isrendered moot inthe face of the uncontradicted evidence that Wong had no way of knowing Gardiner would, or did in fact, return to thebar; and,that Gardiner commenced shootingwithout any appreciable lapse of time fromwhen he entered the bar and without any threatening words or actswhich might have constituted

a warning toWong or his employees. The fundmental principle of tort law involved 

### is analogous to the body of law set forth inthe various "business invitee slip and fall" cases decided by this Court, 

### i.e.: there 

### isno 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 conditionwas of such nature and duration that the proprietor 

### ischarged with constructivenotice thereof. McEnaney v. City of Butte, 43 Mont. 526, 117 P. 893; Demaree 

### v. Safeway Stores, Inc., Mont

# . , 508 P.2d 570, 

### 30 St.Rep. 

### 405. ~ikewise, the factual issue as towhether Wong employed an adequate staff to police hispremises 

### isrendered moot under the facts. InWeihert v. Piccione, 273 Wisc. 448, 78 N.W.2d 757,762, cited by this Court inNevin, theWisconsin Supreme Court determined

an analogous issue inthe defendant's favor, stating inpertinent part

### : 

### h he [trial]court was also of a mind that the failuretohave provided 'guards' or 'bouncers' in the establishment didnot constitutecausal negligence, for the reason that had such been ~roviaed, it cannot be assumed that they would have prevented the assaultwhich occurred instanetly and without warning.

### " (Emphasis added). In order for the trialcourt to submit the issue of liability tothejury, the plaintiff must produce evidence which, if viewed inthe light most favorable toplaintiff, demonstrates thatdefendant 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 factswhich would demonstrate that defendant caused the condition or that he had knowledge of it. The injury-causing conditionwas not of such a nature or duration that defendant could have been charged with constructive notice. The second, third and sixth appeal issues allrelate to evidence offered by plaintiff through witness William Smith to the effect that a separate shooting apparently occurred in the alleybehind the Standard Bar at about 

### 11:OO p.m. on the night in question. There was no proof offered as towhether the sound heard by Smith actuallywas a gunshot, and, if so, who fired the shot. We concur with the trialcourt's view that plaintiff failed to demonstrate the probative value orrelevance of this offered evidence. We find the trialcourt acted reasonably and within 

### its sound discretion ingranting the pretrial motion toexclude, inexamining witness Smith outside the presence of thejury,and inexcluding portions of smith's testimony relating togunshot sounds.Concerning the fourth issue on appeal--denial of plaintiff's motion to reopen his case-- this Court stated in Pickett v. Kyger, 151Mont. 

### 87, 94, 439 P.2d 57: "Plaintiff assigns aserror the refusal of the trialcourt topermit her toreopen her case at the conclusion of allthe evidence. The record discloses that thismotion was made aftermotion 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 toplaintiff before the close of evidence inthe case and no showing was made as to the qualifications of thewitness or the testimony tobe elicited from him. On thisbasis, the trialcourt denied plaintiff's motion toreopen her case. Ordinarilyneither denial of reopening for testimony of a witness available during reception of evidence attrialnor denial of reopening absent a showing of a witness's qualifications and the materiality of his testimony constitutes an abuse of discretionby the trialcourt. There being

### no special circumstances shown taking the instant case out of the operation of the general rule, we hold therewas no abuse of discretion inrefusing the motion of plaintiff toreopen. II See also: Nadeau v. Texas Company, 104Mont. 558, 69 P.2d

### The trial record discloses no offer of proof by plaintiff concerning the failure to callMiss Devorah Howe as a witness during the reception of the evidence. Concerning the fifth issue on appeal--denial of plaintiff's motion fornew trial--themotion was made on these grounds: 

### 1) Irregularity in the proceedings of the court and adverse party, by which plaintiff was prevented fromhaving a fair trial. 2) 

### Surprisewhich 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 opinionwith the exception of ground number 

### 2which relates to surprise resulting from the testimony of Kathryn Rolison at trial, a portion ofwhich has been quoted heretofore. Kathryn Rolisonmade a statement to the Billings police department onApril 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. 

### Iwas stunned and just couldn't believe it.'' The police reportwas available and Kathryn Rolisonwas available for interview prior to the trial. Kathryn ~olison's testimony at trialwas consistent with her statement to the police. It doesnot appear in the trial record that plaintiff ever sought to interview this witness or requested a continuance after her testimonywas given. We find the trial court acted within its sound discretion in denying plaintiff's motion fora new trial. Tigh 

### v. College Park Realty Co., 149Mont. 

### 358,



### The judgment of the district court isaffirmed.

Jfistices.