# FILED
May 21, 1997 Cecil W. Crowson Appellate C ourt Cler k 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

DAWNE HE

PP, ) ) Plaintiff /Appella nt, )

) Montgomery

Circuit ) No. C10- 324 VS. ) ) Appeal N o. ) 01A01-9604- CV-00183 JOE B’S, INC., ) ) Defendant/Appellee, )

APPEAL FROM THE CIRCUIT COURT FOR MONTGOMERY COUNTY

AT CLARKSVILLE, TENNESSEE THE HONORABLE JAMES E. WALTON, JUDGE

For the P laintiff/

Appellant : For the Defendant/Appellee : Frank J. Runyon Patrick J. McHa le Clarksville, Tennessee Brentwood, Tennessee



## AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE-2- 

## O P I N I O N

This appeal inv olves a

customer of a

sports bar

who was i njured as a

result of a fight between

other cust

omers. T he custome

r filed sui t in the Circuit Court for Montgomer

y County against the

sports bar

and the cus tomer wh o provoked the fight. The tria

l court gra

nted a summary j udgment dism issing the c laims aga

inst the sports bar , and the

customer appealed to this cour

t. We ha ve determined that th e summary judgment was proper and, therefore, affirm the dismissal of t h e customer’s claims against the sports bar.
I.
Dawne Hepp worked as a barber at Fort C ampbell. On Novem ber 4, 1993, she joined t

wo of her customer s for

a night of so cializingin Clarksv ille. A s the evening wore on, they decid ed to go to Joe B’s, a s ports bar a

nd night club, to play pool. Ms. He

pp had patroni zed Joe B’ s enoughto enable the owner to recognize her. There were approximately two hundred other customer s in the esta

blishment when Ms. Hepp a nd her comp anions ar rived at ap proximat ely 11:3 0 p.m.
Ms. Hepp too k a se at at a ta ble in the ba

r area when she fir st arrive d. She was alone bec ause one

of her co mpanions had gone to the bar, while the other had gone to the restroom. She had been sea ted only a s hort time when she heard som eone behind her yell “Just let it go.” As Ms. Hepp turned to see what was happening, she noticed an other customer tryi ng to tell he r somethingbut could not hear what the customer

was sayin g because

of the loud music playing in the bar. Atthat mome nt, sheheard the sound of a smack, and she wa s struck fr om behind. Ms. Hepp fel l from her

stool and w as pinned on

the floor underneat

h two fight

ing patrons. When some one pu lled her a way from the fight, she realized that her ankle had been severe ly lacerated

.
Joe B’s m anagemen t b roke up the fight and c alled for the police

and medical assistance. Other customers who were infantry medics carrie d Ms. Hepp to a room near the kitchen where t hey a pplied a tour

niquet to stopthe bleedi ng-3-

and perform

ed other f irst aid. Ms. Hepp and one other customer were transported by ambulanc e to the hosp ital.
Ms. Hepp late

r moved to T ampa, Florida to work as a barber

at McDil l Air Fo rce Base. In October 1994, she filed a negligence action in the Circuit Court for Montgomer

y County aga

inst J oe B’s and

Dennis Sc hultz, the

customer who had allegedly provoked the fight that cause d her inju ry. She alleged that Joe B’s “had a duty to provide suf ficient pr otection to the patrons . . . s o that they w ould not be harme d” and that

Joe B’s “ knew or sh ould have know n that th i ngs were getting out of hand because the manager . . . knew that there

had been f

ights and disturbances at the place related to excessive drinking.”
After M s. Hepp a

nd Joseph Mic hael Balt

hrop, the owner of Joe B’s, were deposed, Joe B’s mo ved for a s ummary jud gment rel yi ng on the holdi ng in Cornpropst

v. Sloan, 528 S.W.2d 188, 198 (Tenn. 1975) that property owners were generall y not liable for the criminal ac ts of third parties. Joe B’s a lso asserted that the und

isputed evid ence demo nstr ated that it had taken adeq uate precauti ons to protect

its custome

rs from reasonably anticipated harm. The trial courtfiled its opinion on January 16, 1996, gra nting the summary j udgment because “[t]her e is no evidence to sugge st that the Defendant’s employees knew or should have k

no wn that the Plaintiff

was likely to be injur

ed.” A ccordingly , the trial court entered an order on January 26, 1996, dismissing Ms. Hepp’s claims against Joe B’s an d certi fying the or der as a f inal judgme nt in accor

dance wi th Tenn. R . Civ. P . 54.02. Ms. He pp then perf

ected this appeal.
II.
Atthe outs et, we wi ll address two issues concerning the use of summary jud gment in this case. Ms. Hepp asserts first that summary judgments ar e no t appropria te in negligenc e cases, especial ly in cases requiring an inquiry into the defendant’s state of m

ind. Sec ond, she asserts that the trial courtdid not constr ue the evidence

in the light

most favorable to her. We find that Ms. Hep p’s view o f the utility of summary judgme nts is unduly nar row and th at her opinion of the1 Bowman v. Henard, 547 S.W.2d 527, 530 (Tenn. 1977).
2 T he court now discourages t he use of

summary ju dgments in only work

ers’ compensation cases. Byrd v. H all, 847 S.W.2d at 210 n.1 ; Berry v. Consolidated Sys., Inc., 804 S.W.2d 445, 446 (Tenn. 1991). -4- manner in which the trial c ourt conside red the ev idence supp orting and opposing the summar

y judgment is incorrec t.
A.
Ms. Hepp asserts that

summary judgments should not be used in negligence cases and, mor

e specifi cally, th at they sh ould not b e used when the defendant’s state of mind may be a pivotal issue. Her gen e ral objections reflect an earlier reluctance to use summa

ry judgment s to dispose

of negligence cases 1 that has now given way to a clear

judicial policy endorsing th e use of sum mary judgm

ents in virtuallyany civil c ase that c an be resol ved on leg al issues alone. Byrd v. Hall, 847 S.W.2 d 208, 21 0 (Tenn . 1993). 2 Accordi ngly, the m ere fac t that Ms. Hepp has asserted negligence claims against Joe B’s is not gr

ounds for r

uling out the

use of a summa

ry judgment

if all the requirem ents of Tenn. R. Civ. P. 56 have been met.
In addi tion to her general objection, Ms. Hep p also insist s that summary judgments shouldnot

be used in cases that require an inquiry into the defendant’s state of mind. Citin g a well-kno wn treatise , she ar gues that sum

mary judgm

ents shouldnot

be used to resolve issues requiring an inquiry into the defen dant’s sta te of mindand th at determin ing wheth er a defendan t knew or sh ould hav e known thatits property presented some danger is a “state-of- mind” issue. Charl es A. Wright, etal. Federal P ractice and Procedure

§ 2729, at 228-232 (2d ed. 1983). The reluctan ce about sum mary judgm

ents in this cir cumstance stems from a recognitio n that the wi tness es’ credibility is often a controlling factor in cases where state of min d is invo lved, Charl es A. Wright, et. al ., Federal Practice and Procedure

§ 2730, at237 (2d ed. 19 83), and t hat summar

y judgments s hould not be used to mak

e credibi li ty determ

ina tions. Byrd v. Hall, 847 S.W. 2d at 212; McDowell v. Moore, 863 S.W.2d 41 8, 421 (Tenn . Ct. App. 1992 ).-5- The facts sur

rounding Joe B’s se curity pre cautions an d the incident c ausing Ms. Hepp’s injury were explored f ully during th e deposition s of Mr. Ba lthrop and Ms. Hepp. Mr. Balthrop stated that he had been operating Joe B’s for eight years and thatthere had

been six or

seven inci dents requiring police inte rvention dur

ing thattime. He testi fied that t hirteen tofifteen

employees were on duty at any one time and that the four fu ll-time management employee s were r esponsible f

or security. He also testified that the m anagemen t employee s met regu larly to discuss securit

y issu es and that

they had a s tandard pr

ocedure f or managin g disturbances among cus tomers. In ad dition, M r. Balthrop stated in a n affidav it thathis employe es did no t serve cu stomers w ho appeare d to be intoxic ated and that they asked cus tomers who g ot into fi ghts to l eave.
The testimonyconcerni ng the event s on the eve ning of November 4, 1 993, was likewise st raightfor ward. Mr. Ba lthrop stat

ed that he a

nd his employees had no reason to suspect that Mr. Schultz would provoke an altercation and that they stopped the fight a s quickly as they could. Ms. Hep p offere d no evidenc e to contradictMr. Balthrop and provided little otherspecificinformat ion. She d

id not know how the alt e rcation st arted or how long it l asted. S he did not know how long Mr. Schultz had been at Joe B’s or whether he had been drinking. She could not describe how or wh en the emp loyees brok e up the fig ht. She

stated only that acustomer pulled her away from the fi ght an d that two other customers administered first aid before the ambulance arrived. Mr. Balthrop explained that he permitted the customers to administerfirst aid to Ms. Hepp because they were better trained than his employe es.
The credibility conce rns that warra nt denying a s ummary jud gment must raiseto a level higher than normal credibility questions that arise whenever a witness testifie s. Any oth er rule w ould essentially prevent the courts from granting a su mmary j udgment in any case. Thus, this court has found that credibili ty concerns preclude granting a summa ry judgment in cases where a witness’s credibili ty has been specifical ly challen ged, Knap p v. Holiday Inns, Inc ., 682 S.W.2 d 936, 943 (T enn. Ct. App. 1984), or where the record contained clear evidence of a witness ’s lack of cred ibility

. Burgessv. Harley, 934 S.W. 2d 58, 68 (Tenn. Ct. App. 19 96) (witnes s giving inconsi stent sta tements).-6- Ms. Hepp did not

challenge

Mr. Ba lthrop’s c redibility

in the trial court. Mr. Balthrop’s deposition a

nd affida vit are consis tent, and we find nothing e lse in the record to provoke heightened co ncerns ab out his cre dibility. T hus, for t he purpose of this proceeding, Mr. Balthrop’s description of Joe B’s security arr an gements stands undisputed as does his statement that neither he nor his emp loyees had a

ny re ason to suspect t

hat Mr. S chultz wo uld cause a n alterca tion on the e vening o f No vember

4, 1993. D eciding w hether Joe B’s secur

ity arra ngements ar e objectively adequate does not require an inquiry into Mr. B althrop’s credibili ty.
B.
Ms. Hepp alsoasserts t

hat the tri al court di d not proper ly consider

the evidence offered to support and to oppose the summary judgment. Summary judgments are not sub stitut e s for trials of dispu ted factual issues. Blocker v. Regional Medical Ctr ., 722 S.W.2d 660, 660-61 (Tenn. 1987). When consi dering asummary judgmen t, the courts mus t view the evidence in the light most favorabl e to the non-moving party a nd must also d

raw all factual inferenc es in the non-moving party’s favor. Mike v. Po Group, Inc., 937 S.W. 2d 790, 792 ( Tenn. 1996); Pittman v. Upj ohn Co., 890 S.W.2d 425, 428 (T enn. 1994). T he courts shouldgrant

a summar

y judgment when the undis puted fac ts reasonably support only one con clus ion. McCall v . Wilder , 913 S.W.2d 150, 153 (Tenn. 1995); Carvell v . Bottoms, 900 S.W.2d 23 , 26 (Tenn. 19 95).
The fact tha

t the ou tcome of a

summary j udgment pro ceeding is not to a party’s liking does no t necessa rily mean that the tr

ial court d

id not proper

ly considerthe eviden c e. The rec ord indicat es that the

trial cour

t viewed t

he evidence and drew

all the re asona

ble i nferences in Ms. Hepp’s favor. The tria l courteven stated in its opinion that it was ta king Ms. Hepp’s de

position test

imony as true. Many of the inferences Ms. Hepp argues that the court s hould have m ade ar e either not

reasonabl e or are

not supporte d by competent evidenc e . Accordi ngly, we find no thing in the record to support the claim that the trial court employed an incorrect standard of review.
III.-7- Ms. Hepp’s pr

incipal ar gument is that the tr

ial court m

isapprehe nded the duty Joe B’s owed to its customers and accordingly erred by determ ining that Joe B’s was entitled toa judgment as a matte r of law . Sheasserts t

hat Joe B’ s should be considered an insurer of its custome

rs’ safety because

of its loud musi c and its “history of alcohol

related violence.” Notwithstanding the heightened liability f or criminal acts of third partie s that busine sses now ha ve, we have deter

mined t h e trial cour t’s analys is was ess entially c orrect.
A.
When Ms. Hep p filed suit against Joe B’s, businesses did not have a duty to protect th eir custom

ers from the criminal acts of third parties unless they knew or should have known that the acts were occurrin g or wer e imminent

. Cornpropst
v. Sloan, 528 S.W.2d at 198. Accordi ngly, one of the g rounds of Joe B’s motion for summary j udgment

was that it did not have

a duty to pro tect Ms. Hepp bec ause it was undi sputed that no one emplo yed by Joe B’ s knew or h ad reason to know thatMr. Sc hultz would

precipitate afight. Ms . Hepp r esponded to t

his defense

by attemptingto distinguish the Cornpropst v. Sloan decisi on and b y insisting that Joe B’s owed its custo mers a high er duty of c are.
The trial court’s decision was not premised on the duty Joe B’s owed to Ms

. Hepp but rather on the question of notice. The trial court reasoned that Joe B’s couldbe liable for

the “sudden

criminal acts of third persons ” if it “w as on notice in some manne

r of the im

minent prob ability of h arm to the Plaint iff.” I t a lso reasoned that notice could be provided in several ways, including a “past history of such activ ities to the

extent that the owner would be on notice that history was likely to repeat itself” or “a heated argument over sufficient time for the owner to interven e.” Employing these stan dards and vi ewing the evidence in the light m

ost favorabl e to Ms. Hepp, the t rial cour t concluded

that “[t] here is no evidence to sug gest that the Defendant’s employees knew or should have known thatth e Plaintiff was likely to be injured.”
After this case was appe aled, the Tennesse e Suprem

e Court de

parted fr om its holding in Cornpropst v. Sloan and expande d the liabil ity of busine ss-8-

establishm

ents to their customers for the criminal acts of third persons committed on the busine ss premise s. Embrac ing the rule in Restatement (Se cond) of Torts § 344 (1965), the court “ impose[d] a duty upon b u sinesses to take rea sonable measures to protect their customers from foreseeable criminal attacks.” McClung
v. Delta Squar

e Ltd. P artne rship , 937 S.W.2 d 891, 899 (T enn. 1996) . In the court’s view, an attack is foreseeable if similar acts have oc curred, within a proximate

time fra me, “on o r

in the imme diate vici nity of” the business premises. McClung v . Delta Square Ltd. Partnershi p, 937 S.W.2d at 902.

In addition, the court redefined a business’s duty to pro tect its c ustomers from the crimi nal acts of third p arties usi ng what it ca lled a “bal ancing ap proach.” The cour t explaine d: A business ord

inarily has no duty toprotect customers from the crimi nal acts of

third part

ie s whi ch occur o n its premis es. The

business is no tto be regarded as the insurerof the saf

ety of it s customer s, and it ha s no absoluteduty to imple ment secur ity measur

es f or the protection

of its customers . How ever, a duty to take reason able steps to pro tect custo mers ari ses if the busin ess knows, or has reason to know, either fr o m what has been or should have bee n observed or from past experience, that criminal acts against its customers on its premises are reasonably foreseeable, either generally or at some particular time. McClung v. Del ta Square Ltd . Partne rship, 937 S.W.2d at 902. Consis tent

with the trend of i ts more re cent deci sions, the court alsoheldthat th e scope of the business’s duty was directly related to the magnitude of the foresee able harm

to its customers
. McClung v . Delta Square Ltd. Partnershi p, 937 S.W.2d at

9 02. Thesenew princ iples must guide our de cision in thi s case eve n though McClung had not been deci d ed when the trial court granted Joe B’s motion for summary judgmen t. B.
Whilebusinesses i n Tennesse e are not insurers o f their c ustomers’ safety, they have the du ty to p rotect the ir custome rs from kn own or re asonably anticipa ted dangers o n their pre mises. McCormi ck v. W aters, 594 S.W. 2d 385, 387 (Tenn. 1980); Dawson v. S ears, Roebuck & Co., 217 Tenn. 72, 78, 394 S.W.2 d 877, 880 (19 65). Unt il the Tennesse e Suprem e Court’s McClung-9-

decision, a business had a duty to pro tect its c ustomers on ly from specific criminal acts thatthe business knew or should have known were occurrin g or wer e about to occur. Cornpropst v. Sloan, 528 S.W.2d at 198. The McClung decision broadened a

business’s duty to includ e protect ing its customer s from cr

iminal ac ts thatcould, w ith reason able fore seeabilit y, occur on its prem

ises. Mc Clung v. Delta Squar

e Ltd. P artnership, 937 S.W.2d at 902.
Whilewe have never been called up on to artic ulate the duty of businesses similarto Joe B’s, courts in ot her jurisd iction s ha ve imposed the same general duty on these businesses that they impose on bus inesses in g eneral. Accordi ngly, businesses that serve al coholic beverage s are not i nsurers of their cust

omers’ safety. Holiday Inns, Inc. v. Shelburne, 576 So.2d 322, 325 (Fla. Dist. C t. App. 1991); Davis v. Allh ands, 643 N.E .2d 856, 86 2 (Ill. C t. App. 1994); Gunter v. Village Pub, 606 N.E .2d1310, 1312 ( Ind. Ct. App. 1993) ; Zueger v. Carlso n, 542 N.W. 2d 92, 96 (N .D. 199 6). They have a dut y, however , to exercise

reasonab le care to protect

their patr ons from injur y at the han ds of oth er customer s. Saatzer v. Smith, 176 Cal. Rptr. 68, 71 (Ct. App. 1981); Kimple v . Foster , 469 P.2d 281, 28 4 (Kan. 1970); Mettling v . Mulliga n, 225 N.W.2d 825, 827-28 (Minn. 1975); Silver v. Sheraton-Sm ithtown Inn, 504 N.Y .S.2d 56, 57 (App. Div. 1986) . Thus, liabilitycan aris e when the business (1) allows a person on the premises with a kn own propensity for fighting, (2) allows a person to remain on the premises whose conduct has become obstreper ous and aggr

essive enou gh to be a dang er to othercustomer, (3) fa ils to take suitable pr ecautiona ry measur

es after being warned of danger fr om an obstre

perous per son, (4) fails to stop a fight as soon as possibleafter it

starts, (5) fails to pr

ovide a sta

ff adequa te to police

the premi ses, or (6) tolerat es disord erly cond itions. Saatzer v. Smith, 176 Cal. Rptr. a t 71-72; Schneider

v. Nec tarine Bal lr oom, In c., 514 N.W. 2d 486, 487 ( Mich. Ct . App. 1994); Nevin v. Carlasco , 365 P.2d 637, 638 (Mont. 1961).
Th ese principle s relatingto the duty bus inesses tha t serve a lcoho li c beverages have to the ir custome rs are c onsistent w ith the Te nne ssee Supreme Court’s expanded vi ew of a b usiness’s l iability fo r crimina l acts occurrin g on its premises. They take into consideration both the specific a cts of particular customers and the re asonably fo reseeab le disorde rly conduct

by third per sons in-10-

general that might endanger other customer s. Accordi ngly, we will apply

these principles to determine whether Joe B’s is entitled toa judgment dismissing M s. Hepp’s clai ms as a matter of law.
C.
Ms. Hepp has n ot claime d that Mr. Schultzh ad a known propensity f or fighting or thatJoe B’s neg ligentl y allowed Mr . Schultz to patronize the bar. Her complaint

asserts t hree negl igence cl aims agai nst Joe B ’s: first, that Joe B’s employees fai led to stop the fight as quickly as possible; second, that Joe B’s tolerated disorderl y premises by playing loud music; and third, that Joe B’s failed to provide adequate staff to maintain order. Ms. Hepp has not demonstrated that she will be a

ble to pres ent compet

ent, adm issible pro of to substa

ntiate any of these claims at tr ial.
Ms. Hepp has offered no evidence concerning the fight that caused her injury. The only e vidence on this matte

r is Mr. Balthrop’ s testimony t hat he and his empl oye es stopped th e fight as quickly as t hey could. In the abs ence of evidence to the contra

ry, the on ly conclusio n that a re asonable person could draw is that the e mployees of

Joe B’s stopped the fi ght as quic k ly as they c ould and, therefor e, that t hey were not negligen

t.
We nee d not tarry long w ith Ms. H epp’s cla im that Joe

B’s someh ow breached its duty to its customers by playing loud music. Persons patronize sports bars and night clubs for their ambiance which includes c rowds, l oud music, a nd the availability of alcoholic beverages. Based on the pres ent state o f the evidence, ajury would

be requir ed to specul ate that t

he music so mehow pre cipitated the fight or int

erfere d with the employee’s ability to st op the fight

. Verdict s cannot be based on spe culation

and conjec ture. A ccordingly , the only conc lusion that a reasonabl e person coul d draw f rom the pr

esent evidence is that

Joe B’s w as not negligent by playing loud music.
Ms. Hepp’s f

inal theor y is that Joe

B’s was neglige nt b ecause it failed to provideadequate staff to maintain order. While Jo e B’s is not an insurer

of its-11-

customers ’ safety, i t has a duty to take reasonable precautions to protect them from injury ari sing from

reasonabl y anticip ated causes

. The natur e and exte nt of these precautions depends on its past exper ien ce and the magnitude o f the reasonabl y foresee able harm . Thus, the pivotal iss ue is wh ether Joe

B’s took adequate precautions to protect its custome rs in light of its prior expe rience w ith disorderly

conduct on it s premise s.
The only compet

ent evidenc e concer

ning Joe B’ s prior exp erience with disorderly

patrons and with its security measures is Mr. B althrop’s deposition a nd affidavi t. Ms. He

pp offere d a two-sentence af fidavit from Tony Macias, another Joe B’s customer. The t rial c ourt proper

ly disrega

rded Mr. Macias’ s affidav it because it does not c omply with Tenn. R. Civ. P. 56.05. It is irrel evant beca use itdescribe s an event t

hat occur red sixtee n months aft

er Ms. H epp’s injur

y and because the event i s entirely

dissimilar

to the event in volved in this case. In additio n, the affidavit provides no basis for concluding that Mr. Macias i s competent to testify concernin g the adeq uacy of Jo e B’s securit y precauti ons.
Mr. Balthrop s tated that Jo e B’s emp loyees did no t serve a lcoholic beverages to custome

rs who we

re visibly i ntoxicated

and that they did not

permit customers who engage d in fights to re main on the premises. He also explained thatJoe B’s had a securi ty plan, that four management personne l were r esponsible for security o n ea ch shift, and that these personnel received training and conducted meetings to discus s the s ecurity a rrangements. T

he only rea sonable con clusion to be drawn from Mr. Balthrop’s uncontradicted testimony conce rni ng the incidents of disorde

rly conduct

at Jo e B’s is that Joe B’s had ta ken adequa

te p recautio ns to protect

its custome

rs from t

he disorder

ly conduct of

othe r customers
.
IV.
We affirm

the summary j udgment and remand th e case to the trial court for whatever further proceedings may be requir ed. We tax the cos ts of this appe al to Dawne Hepp and her surety for which execution, if necessary, may issue.-12- _________________ _____ __ ____ WILLIAM C. KOCH, JR., JUDGE
CONCUR:

_________________

_______________ SAMUEL L. LEWIS, JUDGE

_________________

_______________ BEN H. CANTRELL, JUDGE