FILED

May 21, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

DAWNE HEPP, )

)

Plaintiff/Appellant, )

) Montgomery Circuit

) No. C10-324

VS. )

) Appeal No.

) 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 Plaintiff/Appellant: For the Defendant/Appellee:

Frank J. Runyon Patrick J. McHale

Clarksville, Tennessee Brentwood, Tennessee

AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE
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O P I N I O N

This appeal involves a customer of a sports bar who was injured as a result

of a fight between other customers. The customer filed suit in the Circuit Court

for Montgomery County against the sports bar and the customer who provoked the

fight. The trial court granted a summary judgment dismissing the claims against

the sports bar, and the customer appealed to this court. We have determined that

the summary judgment was proper and, therefore, affirm the dismissal of the

customer’s claims against the sports bar.

I.

Dawne Hepp worked as a barber at Fort Campbell. On November 4, 1993,

she joined two of her customers for a night of socializing in Clarksville. As the

evening wore on, they decided to go to Joe B’s, a sports bar and night club, to play

pool. Ms. Hepp had patronized Joe B’s enough to enable the owner to recognize

her. There were approximately two hundred other customers in the establishment

when Ms. Hepp and her companions arrived at approximately 11:30 p.m. 

Ms. Hepp took a seat at a table in the bar area when she first arrived. She

was alone because one of her companions had gone to the bar, while the other had

gone to the restroom. She had been seated only a short time when she heard

someone behind her yell “Just let it go.” As Ms. Hepp turned to see what was

happening, she noticed another customer trying to tell her something but could not

hear what the customer was saying because of the loud music playing in the bar.

At that moment, she heard the sound of a smack, and she was struck from behind.

Ms. Hepp fell from her stool and was pinned on the floor underneath two fighting

patrons. When someone pulled her away from the fight, she realized that her

ankle had been severely lacerated. 

Joe B’s management broke up the fight and called for the police and

medical assistance. Other customers who were infantry medics carried Ms. Hepp

to a room near the kitchen where they applied a tourniquet to stop the bleeding
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and performed other first aid. Ms. Hepp and one other customer were transported

by ambulance to the hospital.

Ms. Hepp later moved to Tampa, Florida to work as a barber at McDill Air

Force Base. In October 1994, she filed a negligence action in the Circuit Court

for Montgomery County against Joe B’s and Dennis Schultz, the customer who

had allegedly provoked the fight that caused her injury. She alleged that Joe B’s

“had a duty to provide sufficient protection to the patrons . . . so that they would

not be harmed” and that Joe B’s “knew or should have known that things were

getting out of hand because the manager . . . knew that there had been fights and

disturbances at the place related to excessive drinking.” 

After Ms. Hepp and Joseph Michael Balthrop, the owner of Joe B’s, were

deposed, Joe B’s moved for a summary judgment relying on the holding in

Cornpropst v. Sloan, 528 S.W.2d 188, 198 (Tenn. 1975) that property owners

were generally not liable for the criminal acts of third parties. Joe B’s also

asserted that the undisputed evidence demonstrated that it had taken adequate

precautions to protect its customers from reasonably anticipated harm. The trial

court filed its opinion on January 16, 1996, granting the summary judgment

because “[t]here is no evidence to suggest that the Defendant’s employees knew

or should have known that the Plaintiff was likely to be injured.” Accordingly,

the trial court entered an order on January 26, 1996, dismissing Ms. Hepp’s claims

against Joe B’s and certifying the order as a final judgment in accordance with

Tenn. R. Civ. P. 54.02. Ms. Hepp then perfected this appeal.

II.

At the outset, we will address two issues concerning the use of summary

judgment in this case. Ms. Hepp asserts first that summary judgments are not

appropriate in negligence cases, especially in cases requiring an inquiry into the

defendant’s state of mind. Second, she asserts that the trial court did not construe

the evidence in the light most favorable to her. We find that Ms. Hepp’s view of

the utility of summary judgments is unduly narrow and that her opinion of the
1Bowman v. Henard, 547 S.W.2d 527, 530 (Tenn. 1977).

2The court now discourages the use of summary judgments in only workers’

compensation cases. Byrd v. Hall, 847 S.W.2d at 210 n.1; Berry v. Consolidated Sys., Inc., 804

S.W.2d 445, 446 (Tenn. 1991).

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manner in which the trial court considered the evidence supporting and opposing

the summary judgment is incorrect.

A.

Ms. Hepp asserts that summary judgments should not be used in negligence

cases and, more specifically, that they should not be used when the defendant’s

state of mind may be a pivotal issue. Her general objections reflect an earlier

reluctance to use summary judgments to dispose of negligence cases1

 that has now

given way to a clear judicial policy endorsing the use of summary judgments in

virtually any civil case that can be resolved on legal issues alone. Byrd v. Hall,

847 S.W.2d 208, 210 (Tenn. 1993).2 Accordingly, the mere fact that Ms. Hepp

has asserted negligence claims against Joe B’s is not grounds for ruling out the use

of a summary judgment if all the requirements of Tenn. R. Civ. P. 56 have been

met.

 In addition to her general objection, Ms. Hepp also insists that summary

judgments should not be used in cases that require an inquiry into the defendant’s

state of mind. Citing a well-known treatise, she argues that summary judgments

should not be used to resolve issues requiring an inquiry into the defendant’s state

of mind and that determining whether a defendant knew or should have known

that its property presented some danger is a “state-of-mind” issue. Charles A.

Wright, et al. Federal Practice and Procedure § 2729, at 228-232 (2d ed. 1983).

The reluctance about summary judgments in this circumstance stems from a

recognition that the witnesses’ credibility is often a controlling factor in cases

where state of mind is involved, Charles A. Wright, et. al., Federal Practice and

Procedure § 2730, at 237 (2d ed. 1983), and that summary judgments should not

be used to make credibility determinations. Byrd v. Hall, 847 S.W.2d at 212;

McDowell v. Moore, 863 S.W.2d 418, 421 (Tenn. Ct. App. 1992). 
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The facts surrounding Joe B’s security precautions and the incident causing

Ms. Hepp’s injury were explored fully during the depositions of Mr. Balthrop and

Ms. Hepp. Mr. Balthrop stated that he had been operating Joe B’s for eight years

and that there had been six or seven incidents requiring police intervention during

that time. He testified that thirteen to fifteen employees were on duty at any one

time and that the four full-time management employees were responsible for

security. He also testified that the management employees met regularly to

discuss security issues and that they had a standard procedure for managing

disturbances among customers. In addition, Mr. Balthrop stated in an affidavit

that his employees did not serve customers who appeared to be intoxicated and

that they asked customers who got into fights to leave. 

The testimony concerning the events on the evening of November 4, 1993,

was likewise straightforward. Mr. Balthrop stated that he and his employees had

no reason to suspect that Mr. Schultz would provoke an altercation and that they

stopped the fight as quickly as they could. Ms. Hepp offered no evidence to

contradict Mr. Balthrop and provided little other specific information. She did not

know how the altercation started or how long it lasted. She 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 when the employees broke up the fight. She stated only that

a customer pulled her away from the fight and that two other customers

administered first aid before the ambulance arrived. Mr. Balthrop explained that

he permitted the customers to administer first aid to Ms. Hepp because they were

better trained than his employees.

The credibility concerns that warrant denying a summary judgment must

raise to a level higher than normal credibility questions that arise whenever a

witness testifies. Any other rule would essentially prevent the courts from

granting a summary judgment in any case. Thus, this court has found that

credibility concerns preclude granting a summary judgment in cases where a

witness’s credibility has been specifically challenged, Knapp v.Holiday Inns,Inc.,

682 S.W.2d 936, 943 (Tenn. Ct. App. 1984), or where the record contained clear

evidence of a witness’s lack of credibility. Burgess v. Harley, 934 S.W.2d 58, 68

(Tenn. Ct. App. 1996) (witness giving inconsistent statements). 
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Ms. Hepp did not challenge Mr. Balthrop’s credibility in the trial court. Mr.

Balthrop’s deposition and affidavit are consistent, and we find nothing else in the

record to provoke heightened concerns about his credibility. Thus, for the purpose

of this proceeding, Mr. Balthrop’s description of Joe B’s security arrangements

stands undisputed as does his statement that neither he nor his employees had any

reason to suspect that Mr. Schultz would cause an altercation on the evening of

November 4, 1993. Deciding whether Joe B’s security arrangements are

objectively adequate does not require an inquiry into Mr. Balthrop’s credibility.

B. 

Ms. Hepp also asserts that the trial court did not properly consider the

evidence offered to support and to oppose the summary judgment. Summary

judgments are not substitutes for trials of disputed factual issues. Blocker v.

Regional Medical Ctr., 722 S.W.2d 660, 660-61 (Tenn. 1987). When considering

a summary judgment, the courts must view the evidence in the light most

favorable to the non-moving party and must also draw all factual inferences in the

non-moving party’s favor. Mike v. Po Group, Inc., 937 S.W.2d 790, 792 (Tenn.

1996); Pittman v. Upjohn Co., 890 S.W.2d 425, 428 (Tenn. 1994). The courts

should grant a summary judgment when the undisputed facts reasonably support

only one conclusion. McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995);

Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995). 

The fact that the outcome of a summary judgment proceeding is not to a

party’s liking does not necessarily mean that the trial court did not properly

consider the evidence. The record indicates that the trial court viewed the

evidence and drew all the reasonable inferences in Ms. Hepp’s favor. The trial

court even stated in its opinion that it was taking Ms. Hepp’s deposition testimony

as true. Many of the inferences Ms. Hepp argues that the court should have made

are either not reasonable or are not supported by competent evidence.

Accordingly, we find nothing in the record to support the claim that the trial court

employed an incorrect standard of review. 

III.
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Ms. Hepp’s principal argument is that the trial court misapprehended the

duty Joe B’s owed to its customers and accordingly erred by determining that Joe

B’s was entitled to a judgment as a matter of law. She asserts that Joe B’s should

be considered an insurer of its customers’ safety because of its loud music and its

“history of alcohol related violence.” Notwithstanding the heightened liability for

criminal acts of third parties that businesses now have, we have determined the

trial court’s analysis was essentially correct.

A.

When Ms. Hepp filed suit against Joe B’s, businesses did not have a duty

to protect their customers from the criminal acts of third parties unless they knew

or should have known that the acts were occurring or were imminent. Cornpropst

v. Sloan, 528 S.W.2d at 198. Accordingly, one of the grounds of Joe B’s motion

for summary judgment was that it did not have a duty to protect Ms. Hepp because

it was undisputed that no one employed by Joe B’s knew or had reason to know

that Mr. Schultz would precipitate a fight. Ms. Hepp responded to this defense by

attempting to distinguish the Cornpropst v. Sloan decision and by insisting that

Joe B’s owed its customers a higher duty of care. 

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

could be liable for the “sudden criminal acts of third persons” if it “was on notice

in some manner of the imminent probability of harm to the Plaintiff.” It also

reasoned that notice could be provided in several ways, including a “past history

of such activities 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

intervene.” Employing these standards and viewing the evidence in the light most

favorable to Ms. Hepp, the trial court concluded that “[t]here is no evidence to

suggest that the Defendant’s employees knew or should have known that the

Plaintiff was likely to be injured.” 

After this case was appealed, the Tennessee Supreme Court departed from

its holding in Cornpropst v. Sloan and expanded the liability of business
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establishments to their customers for the criminal acts of third persons committed

on the business premises. Embracing the rule in Restatement (Second) of Torts

§ 344 (1965), the court “impose[d] a duty upon businesses to take reasonable

measures to protect their customers from foreseeable criminal attacks.” McClung

v. Delta Square Ltd. Partnership, 937 S.W.2d 891, 899 (Tenn. 1996). In the

court’s view, an attack is foreseeable if similar acts have occurred, within a

proximate time frame, “on or in the immediate vicinity of” the business premises.

McClung v. Delta Square Ltd. Partnership, 937 S.W.2d at 902. 

In addition, the court redefined a business’s duty to protect its customers

from the criminal acts of third parties using what it called a “balancing approach.”

The court explained:

A business ordinarily has no duty to protect customers

from the criminal acts of third parties which occur on

its premises. The business is not to be regarded as the

insurer of the safety of its customers, and it has no

absolute duty to implement security measures for the

protection of its customers. However, a duty to take

reasonable steps to protect customers arises if the

business knows, or has reason to know, either from

what has been or should have been 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. Delta Square Ltd. Partnership, 937 S.W.2d at 902. Consistent with

the trend of its more recent decisions, the court also held that the scope of the

business’s duty was directly related to the magnitude of the foreseeable harm to

its customers. McClung v. Delta Square Ltd. Partnership, 937 S.W.2d at 902.

These new principles must guide our decision in this case even though McClung

had not been decided when the trial court granted Joe B’s motion for summary

judgment. 

B. 

While businesses in Tennessee are not insurers of their customers’ safety,

they have the duty to protect their customers from known or reasonably

anticipated dangers on their premises. McCormick v. Waters, 594 S.W.2d 385,

387 (Tenn. 1980); Dawson v. Sears, Roebuck & Co., 217 Tenn. 72, 78, 394

S.W.2d 877, 880 (1965). Until the Tennessee Supreme Court’s McClung
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decision, a business had a duty to protect its customers only from specific criminal

acts that the business knew or should have known were occurring or were about

to occur. Cornpropst v. Sloan, 528 S.W.2d at 198. The McClung decision

broadened a business’s duty to include protecting its customers from criminal acts

that could, with reasonable foreseeability, occur on its premises. McClung v.

Delta Square Ltd. Partnership, 937 S.W.2d at 902. 

While we have never been called upon to articulate the duty of businesses

similar to Joe B’s, courts in other jurisdictions have imposed the same general

duty on these businesses that they impose on businesses in general. Accordingly,

businesses that serve alcoholic beverages are not insurers of their customers’

safety. Holiday Inns, Inc. v. Shelburne, 576 So.2d 322, 325 (Fla. Dist. Ct. App.

1991); Davis v. Allhands, 643 N.E.2d 856, 862 (Ill. Ct. App. 1994); Gunter v.

Village Pub, 606 N.E.2d 1310, 1312 (Ind. Ct. App. 1993); Zueger v. Carlson, 542

N.W.2d 92, 96 (N.D. 1996). They have a duty, however, to exercise reasonable

care to protect their patrons from injury at the hands of other customers. Saatzer

v. Smith, 176 Cal. Rptr. 68, 71 (Ct. App. 1981); Kimple v. Foster, 469 P.2d 281,

284 (Kan. 1970); Mettling v. Mulligan, 225 N.W.2d 825, 827-28 (Minn. 1975);

Silver v. Sheraton-Smithtown Inn, 504 N.Y.S.2d 56, 57 (App. Div. 1986). Thus,

liability can arise when the business (1) allows a person on the premises with a

known propensity for fighting, (2) allows a person to remain on the premises

whose conduct has become obstreperous and aggressive enough to be a danger to

other customer, (3) fails to take suitable precautionary measures after being

warned of danger from an obstreperous person, (4) fails to stop a fight as soon as

possible after it starts, (5) fails to provide a staff adequate to police the premises,

or (6) tolerates disorderly conditions. Saatzer v. Smith, 176 Cal. Rptr. at 71-72;

Schneider v. Nectarine Ballroom, Inc., 514 N.W.2d 486, 487 (Mich. Ct. App.

1994); Nevin v. Carlasco, 365 P.2d 637, 638 (Mont. 1961).

These principles relating to the duty businesses that serve alcoholic

beverages have to their customers are consistent with the Tennessee Supreme

Court’s expanded view of a business’s liability for criminal acts occurring on its

premises. They take into consideration both the specific acts of particular

customers and the reasonably foreseeable disorderly conduct by third persons in
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general that might endanger other customers. Accordingly, we will apply these

principles to determine whether Joe B’s is entitled to a judgment dismissing Ms.

Hepp’s claims as a matter of law.

C.

Ms. Hepp has not claimed that Mr. Schultz had a known propensity for

fighting or that Joe B’s negligently allowed Mr. Schultz to patronize the bar. Her

complaint asserts three negligence claims against Joe B’s: first, that Joe B’s

employees failed to stop the fight as quickly as possible; second, that Joe B’s

tolerated disorderly 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 able to present competent, admissible proof to substantiate any of these

claims at trial. 

Ms. Hepp has offered no evidence concerning the fight that caused her

injury. The only evidence on this matter is Mr. Balthrop’s testimony that he and

his employees stopped the fight as quickly as they could. In the absence of

evidence to the contrary, the only conclusion that a reasonable person could draw

is that the employees of Joe B’s stopped the fight as quickly as they could and,

therefore, that they were not negligent.

We need not tarry long with Ms. Hepp’s claim that Joe B’s somehow

breached its duty to its customers by playing loud music. Persons patronize sports

bars and night clubs for their ambiance which includes crowds, loud music, and

the availability of alcoholic beverages. Based on the present state of the evidence,

a jury would be required to speculate that the music somehow precipitated the

fight or interfered with the employee’s ability to stop the fight. Verdicts cannot

be based on speculation and conjecture. Accordingly, the only conclusion that a

reasonable person could draw from the present evidence is that Joe B’s was not

negligent by playing loud music.

Ms. Hepp’s final theory is that Joe B’s was negligent because it failed to

provide adequate staff to maintain order. While Joe B’s is not an insurer of its
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customers’ safety, it has a duty to take reasonable precautions to protect them

from injury arising from reasonably anticipated causes. The nature and extent of

these precautions depends on its past experience and the magnitude of the

reasonably foreseeable harm. Thus, the pivotal issue is whether Joe B’s took

adequate precautions to protect its customers in light of its prior experience with

disorderly conduct on its premises.

The only competent evidence concerning Joe B’s prior experience with

disorderly patrons and with its security measures is Mr. Balthrop’s deposition and

affidavit. Ms. Hepp offered a two-sentence affidavit from Tony Macias, another

Joe B’s customer. The trial court properly disregarded Mr. Macias’s affidavit

because it does not comply with Tenn. R. Civ. P. 56.05. It is irrelevant because

it describes an event that occurred sixteen months after Ms. Hepp’s injury and

because the event is entirely dissimilar to the event involved in this case. In

addition, the affidavit provides no basis for concluding that Mr. Macias is

competent to testify concerning the adequacy of Joe B’s security precautions. 

Mr. Balthrop stated that Joe B’s employees did not serve alcoholic

beverages to customers who were visibly intoxicated and that they did not permit

customers who engaged in fights to remain on the premises. He also explained

that Joe B’s had a security plan, that four management personnel were responsible

for security on each shift, and that these personnel received training and conducted

meetings to discuss the security arrangements. The only reasonable conclusion

to be drawn from Mr. Balthrop’s uncontradicted testimony concerning the

incidents of disorderly conduct at Joe B’s is that Joe B’s had taken adequate

precautions to protect its customers from the disorderly conduct of other

customers. 

IV.

We affirm the summary judgment and remand the case to the trial court for

whatever further proceedings may be required. We tax the costs of this appeal to

Dawne Hepp and her surety for which execution, if necessary, may issue.
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____________________________

WILLIAM C. KOCH, JR., JUDGE

CONCUR:

________________________________

SAMUEL L. LEWIS, JUDGE 

________________________________

BEN H. CANTRELL, JUDGE