### IN THE SUPREME COURT OF IOWA

No. 11

– 0085
Filed April 5 , 20 1 3

CURTIS GENE HOYT , Appellant ,

vs.
GUTTERZ BOWL & LOUNGE L.L.C. , Appellee

.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Guthrie County, Bradley
McCall , Judge.

The p laintiff brought a negligence action alleging he was assaulted and injured on the defendant’s premises . The distr ict court granted the
defendant’s motion for summary judgment and the court of appeals
reversed. Defendant sought, and this court granted, further review of the decision of the court of appeals

. DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT C OURT JUDGMENT REVERS ED AND CASE
REMANDED
.

Gary D. Dickey Jr. of Dickey & Campbell Law Firm, PLC,
Des Moines , for appellant.

Mark J. Wiedenfeld and James W. Russell of Wi e denfeld & McLaughlin, L.L.P., Des Moines , for appellee.2

HECHT, Justice. The plaintiff sued a bar for injuries sustained when he was assaulted in the bar’s parking lot. The district court granted summary judgment in favor of the bar. The court of appeals reversed the district court’s ruling , concluding questions of fact precl uded summary judgment

. On further review, we affirm the court of appeals decision and
reverse the district court ’ s grant of summary judgment. I. Factual and Procedural Background. The summary judgment record taken in the light most favorable to plaintif f

– appellant Hoyt supports the following factual findings.
Defendant

– appellee Gutterz Bowl & Lounge (Gutterz) is a bowling alley and tavern located in Guthrie Center, Iowa. O n March 20, 2009, Curtis Hoyt and several members of his construction crew finish ed work and
went to Gutterz for refreshments . Curtis Knapp was also a customer at Gutterz that afternoon. Hoyt soon came to believe that Knapp was scowling at him . Hoyt and Knapp had formerly been friendly, but
tension had arisen between them as a resul t of Hoyt’s alleged
mistreat ment of the sister of Knapp ’ s friend. The record reveals n o evidence tending to prove the staff of Gutterz had any knowledge of this history between Hoyt and Knapp. After consuming a few b eers, Hoyt and co worker Chris Brittain approached and verbally confronted Knapp

. Knapp did not respond and continued to scowl at Hoyt. The waitress serving Hoyt and Brittain
observed their behavior with concern and threatened to discontinue serving them unless they calmed down. Hoyt and Bri ttain ignored the
waitress’s warning and thus she requested and secured permission from Gutterz’s owner, Rodney Atkinson, to discontinue serving them. Atkinson, who had been preparing food in the kitchen, went to the bar3

area to assess the situation. Hoy t and Brittain complained to Atkinson that they were no longer being served and continued to taunt Knapp.
Sh ortly thereafter, Atkinson grew concerned that an altercation might occur . He requested that Hoyt and Brittain leave

. 1 Hoyt finished
his beer and exited the tavern. As Hoyt walked through the parking lot toward his vehicle, somebody approached him from behind and struck
him in the back of the head , knocking him unconscious. Hoyt suffered
several injuries including a compound fracture of his ankle. Knapp admitted to police who later arrived on the scene that he had stru ck Hoyt, but claimed he had done so in self

- defense. 2 On September 25, 2009 , Hoyt filed this action alleging that Knapp
and Gutterz were liable for the injuries he sus tained when Knapp
assaulted him. Gutterz moved for summary judgment , alleging Gutterz owed Hoy t no duty of reasonable care, there was no evidence of a breach of any duty , and the assault by Knapp and Hoyt’s injury were not
for e seeable

. T he district court granted Gutterz ’ s motion for summary judgment and dismissed Gutterz from the lawsuit. The district court
found as a matter of law that the assault in the parking lot and Hoyt’s resulting injury were not for e seeable to Gutterz. Having found Hoyt’s injury was not for e seeable to Gutterz, the district court further found insufficient evidence to generate a genuine issue of material fact on the question of whether Gutterz employees failed to exercise reasonable care to discover the likelihood of harm or

1 Atkinson’s account suggests he escorted the men to their trucks in the parking lot and returned to the kitchen. Hoyt and Brittain instead recalled that after Atkinson ordered them to leave , they exited the tavern and walked themselves to their vehicles.

2 The police ultimately charged both Hoyt and Knapp with disorderly conduct as a result of the incident.4 fail ed to provide an adequate warning after discovering a potential danger to Hoyt. 3 We granted Hoyt ’s application for interlocutory appeal , and we transferred the case to the court of appeals. The court of appeals
reversed the district court’s summary judgme nt ruling . In reversing, the court of appeals cited our opinion in Thompson v. Kaczinski , 774 N.W.2d 829 (Iowa 2009). In Thompson , we adopted the general duty formulation
set forth in s ection 7 the Restatement (Third) of Torts : Liability for Physical and Emotional Harm and explained that “the assessment of the foreseeability of a risk” is no longer part of the duty analysis in evaluating a tort claim , and instead is to be c onsidered when the fact
finder decides whether a defendant has failed to exercise r easonable

care. Id . at 835. Consistent with its understanding that foreseeability is no longer part of the duty determination , the court of appeals applied

s ection 40 of the Restatement (Third) , entitled “Duty Based on Special Relationship Wi th Another, ” in analyzing Hoyt’s claim. C onclud ing Gutterz owed Hoyt a duty under s ection 40 and finding Hoyt had raised fact questions as to foreseeability related to the issues of breac h of duty and scope of liability, the court of appeals reversed the summary judgment ruling . We granted Gutterz ’s application for further review.
II. Scope of Review.
The district court ’ s ruling on a motion for summary judgment is
reviewed for correction of erro rs of law. Id. at 832. A party is entitled to summary judgment when the record shows no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of

3 In reaching its conclusion, the court applied s ection 344 of the Restatement (Second) of Torts, en titled “Business Premises Open t o Public: Acts o f Third Persons o r Animals.”5

la w. Iowa R. Civ. P. 1.981(3). On a motion for summary judgment, the
court must: “ (1) view the facts in the light most favorable to the nonmoving party, and (2) consider on behalf of the nonmoving party every legitimate inference reas onably deduced from the record. ” Van
Fossen v. MidAmeric an Energy Co. , 777 N.W.2d 689, 692 (Iowa 2009).
III. Discussion
. Hoyt contends the district court erred in concluding as a matter of
law that Gutterz did not breach a duty of reasonable care under these circumstances. Further, Hoyt contends, the district court erred in its
consideration of foreseeability of injury to Hoyt in making its summary judgment ruling. Gutterz urges that the summary judgment ruling
should be affirmed because : ( 1) the district court correctly analyzed the question of duty, ( 2) eve n if a duty existed, Gutterz acted reasonably as a
matter of law , and ( 3) Hoyt’s injuries here were, as a matter of law, outside the scope of harms typically resulting from the risks associated
with Gutterz’s conduct.
A. Duty. Before examining the record for a factual question regarding whether Gutterz breached a duty to Hoyt, we must consider
whether Gutterz owed Hoyt a duty of care , and if so, the nature of that duty under these circumstances. While summary adjudication is rarely
ap propriate in negligence cases, the determination of whether a duty is owed under particular circumstances is a matter of law for the court ’ s determination. Thompson , 774 N.W.2d at 834; Sankey v. Richenberger , 456 N.W.2d 206, 207 (Iowa 1990). Traditionall y, Iowa courts examining whether a landowner has a duty to protect visitors from the conduct of third parties relied upon s ection 344 , comment f , of the Restatement (Second) of Torts to conclude that a property owner “ is ordinarily under no duty to exercise any care until he knows or has reason to know that6

the acts of the third person are occurring, or are about to occur. ” Galloway v. Bankers Trust Co ., 420 N.W.2d 437, 438 (Iowa 1988);
Martinko v. H

- N

- W Assocs. , 393 N.W.2d 320, 322

– 23 ( 1986); Restatement (Second) of Torts § 344 cmt. f , at 225 (1965) [hereinafter Restatement (Second)]. That general proposition was subject to the caveat that a duty would be imposed in scenarios where the property owner knew or had
reason to know of a like lihood of third party conduct that could endanger visitors or where the place or character of the business was such that the property owner should reasonably anticipate careless or criminal conduct by third parties. Galloway , 420 N.W.2d at 4 39

– 40 ; Martink o , 393 N.W.2d at 322

– 23 ; Restatement (Second) § 344 cmt. f , at 225

– 26

. Recently, in Thompson , we examined not a landowner

– visitor scenario, but a scenario in whic h the trampoline of a landowner had been blown by high winds into a nearby roadway, obstructing the travel of and causing injury to a driver. 774 N.W.2d at 831

– 32. We questioned
and the n rejected an assessment of foreseeability of risk in determining
whether the landowner owed the driver a duty . We adopted the general duty formulation of s ection 7 of the Restatement (Third) and explained : An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm. Thus, in most cases involving physical harm, courts need not concern themselves wit h the existence or content of this ordinary duty, but instead may proceed directly to the elements of liability set forth in section 6 [of the Restatement (Third)]. The general duty of reasonable care will apply in most cases, and thus courts can rely dir ectly on section 6 and need not refer to duty on a case

- by

- case basis.
Id. at 834

– 35 (citations and internal quotation marks omitted). We joined the drafters of the Restatement (Third) in explicitly disapproving of
the us e of foreseeability, or lack thereof, in making no

- duty
determinations

. Id. at 835. Instead, we explained, no

- duty rulings7

should be limited to exceptional cases in which “ ‘ an articulated countervailing principle or policy warrants denying or limiting liabi lity in a particular class of cases. ’ ” Id

. (quoting Restatement (Third) of Torts: Liability for Physical & Emotional Harm § 7(b), at 77 (2010) [hereinafter Restatement (Third)] )

. Such reasons of principle or policy justifying departure from a general du ty to exercise reaso nable care would not depend on the foreseeabil ity of harm in any given case. Id. Instead, assessment of foreseeability should be allocated to the fact finder, as part
of its determination of whether appropriate care has been exercised in any given scenario. Id

. Section 40 of the Restateme nt (Third) describes duty principle s, some of which overlap with s ection 7’s general duty, more specifically for
sp ecial relationships such as landowner

– visitor or business

– patron relationship s , as follows:

(a) An actor in a special relationship with another owes the other a duty of reasonable care with regard to risks that arise within the scope of the relationship. (b) Special relationships giving rise to the duty provided in Subsection (a) include :

(1) a common carrier with its passengers, (2) an innkeeper with its guests, (3) a business or other possessor of land that holds its premises open to the public with those who are lawfully on the premises,

. . . . Rest atement (Third) § 40 , at 39 (2012)

. Comment g explains that s ection
40 ’s contemplated duties appl y even in cases involving harm caused by a third party : The duty described in this Section applies regardless of the source of the risk. Thus, it applies to risks created by the8 individual at risk as well as those created by a third party ’ s conduct, whether innocent, negligent, or intentional.
Id. § 40 cmt. g , at 42

. Therefore , comment j explains, “[b]usinesses . . . who hold their land open to the public owe a duty of reasonable care to
perso ns lawfully on their land who become ill or endangered by risks created by third parties.” Id. § 40 cmt. j , at 43

– 44

. Section 40 thus
modifies the general proposition of s ection 37 that actors typically owe no duty to protect victims from the conduct of third parties , 4 and clarifies
that a duty of reasonable care applies as a result of these special relationships

. For the same reasons we found the Restatement (Third) compelling
in Thompson , we find it compelling in the tavern owner

– patron context. Recognizing that a duty exists whenever an actor has created a risk of
harm and that risks arise out of the special relations hips contemplated by section 40 encourages simplicity and predictability. Limiting no

- duty rulings to exceptional problems of poli cy or principle promotes judicial transparency, encouraging judges to justify in explicit terms any reasons for declining to impose a duty in a given scenario

. Thompson , 774 N.W.2d at 835 (citing Restatement (Third) § 7 cmt

. j , at 82 ). Further,
f oreseeability is central to the fact finder’s inquiries regarding breach and the range of harms for which an actor may be liable. Any overlap in the duty inquiry is likely to be redundant and confusing, and may well frustrate longstanding rationales for s pecific allocations of decision

making power between the judge and jury. Id. at 835 (removing

4 Section 37 states a principle complementary to the general duty principle of
s ection 7: there is no duty of care when another is at risk for reasons other than those created by an actor’ s conduct. As contemplated by s ections 7 and 19, an actor’s conduct may create risk by exposing another to the improper conduct of third parties. All risks created by an actor’s conduct or course of conduct must be evalua ted in determining whether the s ection 37 principle applies.9

foreseeability from the duty analysis “ ‘protect[s] the traditional function of the jury as fact finder’ ” (quoting Restatement (Third) § 7(b) cmt. j , at
98

– 99) ) ; 1 Dan B. Dobbs , The Law of Torts § 159, at 503

– 04 (2d e d. 2011) (“Foreseeability [ of harm ] is seldom if ever a pure fact .

. . [a nd] is normally a jury question

. ”). The redundancy also gives rise to the possibility that judge and jury may reach inconsistent results regarding foreseeability, at odds with goals of procedural fairness, predictability, and treating like cases alike. For these reasons, we emphasize ag ain our adoption of the duty analysis of the Restatement (Third)

. The district court clearly considered the foreseeability of the assault and Hoyt’s resulting injury in granting summ ary judgment for Gutterz, but whether the judgment was based on a no

- duty
determination or a reasonable care determination is less clear

. 5 Removing foreseeability from the duty analysis, we must consider whether some principle or strong policy consideration justifie s exempting
Gutter z, or the class of tavern owne rs in general, from the duty to
exercise reasonable care. The parties have not advanced, and we cannot discern, any such considerations compel ling exemption of tavern owners from the duty. T avern owners fit squarely within t he class of business owners contemplated by section 40(b)(3). Section 40 enumerates several justifications for requiring business owners to exercise due care:

5 As noted a bove, the district court specifically found there was insufficient evidence to raise a fact question regarding whether Gutterz employees had exercised reasonable care. In describing the applicable law, however, the court explained that “in construing the duty of the possessor of land the Iowa Supreme Court, in Martinko v. H

N

- W Assocs. , 393 N.W.2d 320 (Iowa 1986), observed that the ultimate issue for determining liability is one of foreseeability.” The parties appear to disagree on appeal as to the meanin g of the district court’s findings. Gutterz argues that the district court correctly found no duty based on lack of foreseeability, while Hoyt takes issue with the court’s foreseeability determination without specifying whether the court made the finding in the duty inquiry or the reasonable care inquiry.10 [T ]he relationship identifies a specific person to be protected and thus provides a more limited and justified incursion on autonomy, especially when the relationship is entered into voluntarily. In addition, some relationships necessarily compromise a person’s ability to self

- protect, while leaving the actor in a su perior position to protect that person. Many of the relationships also benefit the actor. Restatement (Third) § 40 cmt. h , at 43 . We are convinced these justifications are applicable to tavern owners and decline to exempt them
from the duty to exercise reasonable care. Accordingly, we conclude Gutterz owed Hoyt a duty of reasonable care under the circumstances presented here. We now turn to the question of whether Hoyt raised a genuine issue of material fact regarding the alleged brea ch of this duty.
B. Reasonable Care. Hoyt contends the district court erred in concluding Gutterz had not, as a matter of law, failed to exercise reasonable care. Gutterz counters that it acted reasonably. While taverns are not insurers of patrons’ safety against third

person criminal attacks, various jurisdictions have explained taverns must make reasonable efforts to maintain order and supervise and control patrons. See, e.g., Gunter v. Vill. Pub , 606 N.E.2d 1310, 1312 (Ind. Ct. App. 1993); Sweenor v. 162 State St. , Inc., 281 N.E.2d 280 , 281

– 82 (Mass. 1972); Mettling v. Mulligan , 225 N.W.2d 825 , 827

– 28 (Minn. 1975); Flynn v. Audra’s Corp., 796 N.W.2d 230 , 232

– 33 (Wis. Ct. App. 2011); see also Restatement (Second) § 344 cmt. f , at 225

– 26

. T he Restatement (Third) adds that in situations involving section 40 affirmative duties, section 3’s reasonable care analysis may be applied in determining whether a particular failure to act is unreasonable. Restatement (Third) § 3 cmt. c , at 30. Section 3 explains that a person acts negligently if the person does not exercise reasonable care under all the circumstances. Primary factors to consider in ascertaining whether the person’ s conduct lacks reasonable care are the foreseeable likelihood that the11
per s on’ s conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm.
Id

. § 3, at 29. In addition, section 19’s specific application of the section 3 principles explains that “ [ t ] he conduct of a defendant can lack reasonable care insofar as it foreseeably combines with or permits the improper conduct of the plaintiff or a third party.” Id. § 19, at 215. Section 19 sets forth the following examples of situations where the defendant may create or increase the likelihood of injury by a third person: For example, the defendant’ s conduct may make available to the third party the instrument eventually used by the third party in inflicting harm; or that conduct may bri ng the plaintiff to a location where the plaintiff is exposed to third

party misconduct; or that conduct may bring the third party to a location that enables the third party to inflict harm on the plaintiff; or the defendant’ s business operations may creat e a physical environment where instances of misconduct are likely to take place; or the defendant’ s conduct may inadvertently give the third party a motive to act improperly. Restatement (Third) § 19 cmt. e , at 218. 6
That a tavern may create a physical env ironment where instances of misconduct are likely to take place r aises converging questions of reasonable care and the appropriate scope of liability for the defendant. Restatement (Third) § 19 cmt. c , at 216

– 1 7

. In a tavern , for example, the
environment may foreseeably bring about the misconduct of a third

6 We note that in some bar owner

– patron cases, the bar’s duty may be purely affirmative because the bar has had no role in creating the risk of harm that arises. In other cases, the bar may play a role in creating the risk, whether as illustrated in section 19, or in some other manner. In those cases, the source of the duty may be the general duty described in Thompson and section 7 of the Restatement (Third). Thompson , 774 N.W.2d at 834

– 36. Regardless the source of the duty, the duty is one of reasonable care. Restatement (Third) § 40 cmt. d , at 40. We emphasize, however, that what constitutes reasonable care may depend on the circumstances, and whether the duty is purely affirmative or more general m ay be a circumstance relevant in the fact finder’s consideration of reasonable care. Id . at 41.12

party, resulting in injury to a plaintiff. While the foreseeability of misconduct raises an issue of the appropriate level of care, it also raises
the issue of whether the harm suffered by the plainti ff is within the range
of risks that may make the defendant’ s conduct negligent in failing to
exercise that care

. Id. In considering this overlap, we have previously
observed that w here liability is based on the intentional acts of a third party , we must take care to avoid requiring excessive precaution relatin g
to these acts , eve n when the improper conduct may be re garded as
foreseeable in the abstract

. Bro kaw v. Winfield

- M t. Union Cm ty

. Sch

. Dist. , 788 N.W.2d 386 , 392 (Iowa 2010).
In Brokaw , for exa mple, we adjudicated a claim that a school
district had failed to control the conduct of one of its students. Id

. at
388. The plaintiff

, a high

- school basketball player who alleged he was injured by an opposing player during a game, appealed a decision in
favor o f the defendant school district after a bench trial

. Id

. The plaintiff argued the alleged assault by the defendant district’s student athlete was
foreseeable because the student athlete had taken a swing during the game at another player withi n view of his coaches and had committed an egregious foul. Id. at 394. We observed , however, that t here was no
evidence in the record that the opposing player had a history of physically dangerous conduct. Id. We therefore concluded there was
substanti al evidence supporting the trial court’s view that the assault was unforeseeable and affirmed its ruling that the school district had not
failed to exercise reasonable care. Id

. By contrast, section 19 of t he Restatement (Third) illustrates
scenarios wh ere an actor’s knowledge of the risk of negligent or
intentional third

- party conduct may provide a basis for liability as
follows:13 [A]n actor engaging in certain conduct can foresee a considerable risk, either on account of the general prospect of other pe rsons’ negligence during the relevant frame of time and place, or because the actor has knowledge of the propensities of the particular person or persons who are in a position to act negligently. Restatement (Third) § 19 cmt. f , at 219. Here, the district court found that Gutterz exercised reasonable
care as a matter of law , based largely on the notion that the information available to Gutterz at the time failed to suggest any possibility of harm to Hoyt. Hoyt and Brittain initiated the verbal con flict with Knapp, reasoned the court, and thus, Gutterz could expect harm to Knapp but had no reason to expect harm to Hoyt. Mindful of s ection 19’s instructions that foreseeability should be evaluated in the relevant frame of time and place, and that for eseeability may arise in environments where instances of physical misconduct are likely to take place, we disagree t hat the record established as a matter of law that an injury to Hoyt was unforeseeable . Gutterz’s duty of reasonable care applied “regardle ss of the source of risk.” Id. § 40 cmt. g , at 42

. The duty applied to risks arising from Hoyt ’s conduct , as well as those created by a third party’s conduct, whether innocent, negligent, or intentional. Id

. Indeed, section 19 confirms that the risk rendering a defendant’s
conduct negligent may be the “risk that potential victims will act in ways that unreasonably imperil their own safety.” Id. § 19 cmt. b , at 216. Gutterz personnel had observed the conflict developing between Hoyt, Brittain, and K napp, and had observed all three consuming alcohol
in the bar that afternoon. Hostilities escalated such that the waitress felt compelled to seek and obtain Atkinson’s permission to discontinue alcohol service to Hoyt and Brittain. Atkinson ordered Hoyt out of the
bar as a result of his concern that a physical altercation between Hoyt14

and Knapp might occur. Moreover, bars are business venues in which
alcohol

- fueled distur bances causing injury and even death are known to

occur. See Delgado v. Trax Bar & Grill , 113 P.3d 1159, 1169 (Cal. 2005) (proprietor who serves intoxicating drinks must exercise reasonable care to protect patrons from injury at hands of fellow guests) ; Carey v. New Yorker of Worcester, Inc. , 245 N.E.2d 420, 422 (Mass. 1969) (“commotion and boisterous behavior and continued drinking” may be “ warnings of trouble”) ; Priewe v. Bartz , 83 N.W.2d 116, 120 (Minn. 1957) (presence of an intoxicated person upon the premises “immediately exposes the proprietor to the hazards of liability resulting from the unpredictable conduct of such person”); Peck v. Gerber , 59 P.2d 675, 678 (Or . 1936) (“any place selling intoxicants for immediate consumption is potentially a disorderly place unless properly policed and patrolled ”)

. Under these facts, and given the relevant context of a bar and the conduct known to occur there, we cannot conclude that the risk of harm to Hoyt was
unforeseeable as a matter of law as contemplated by sections 3, 19, and
40

. Small changes in the facts may make dramatic ch anges in how much risk is foreseeable, and thus we leave the breach question’s foreseeability determination to juries unless no reasonable person could
differ on the matter. Thompson , 774 N.W.2d at 83 6

. Given the ruling of our court of appeals, the general tenor of bar behavior, and Atkinson’s own testimony regarding concern about a physical altercation, we
conclude that a reasonable person might find the risk of harm to Hoyt
foreseeable. Accordingly, that Ho yt may have initiated the c onflict
cannot serve as the basis for summary judgment that Gutterz acted

reaso nably under the circumstances. Alt hough the district court did not clearly address whether the record established reasonable care by Gutterz , Hoyt contends that15

Gutterz could have exercised reasonable care by any of the following : ( 1) calling the police when the conflict developed , ( 2) escorting Hoyt to his vehicle in the parking lot, or ( 3) verifying that Knapp was not lying in wait in the pa rking lot. Gutterz contends that it did escort Hoyt t o his vehicle, and that its precautions here were reasonable as a matter of law. While resolution of the factual dispute is best left to the fact finder, we observe that the resolution may have signifi cant bearing on the reasonable care determination. We emphasize that our recog nition of a duty in this case does not give rise to strict or absolute liability on the part of Gutterz

. Instead, to fulfill its duty in this context, Gutterz was merely requir ed to employ reasonable safety precautions

. It may be that quick intervention was all that was necessary under the circumstances

. See, e.g., Collins v. Shepherd , 441 S.E.2d 458 , 459 (Ga. Ct. App. 1994). Alternatively, a call to the police may have been warranted. See, e.g., Getson v. Edifice Lounge, Inc ., 453 N.E.2d 131, 135 (Ill. App. Ct. 1983); Regan v. Denbar, Inc. , 514 N.W.2d 751 , 753 (Iowa Ct. App. 1994 )

. Regardless, the question of what reasonab le care required under these circumstances is for the jury; it is onl y in exceptional cases that such questions may be decided as matters of law. Iowa R. App. P. 6.904(3 ) ( j )

. Given t he factual dispute here, and our preference for the jury ’s assessment of reasonable care, we cannot conclude that the record established Gutterz’s conduct constituted reasonable care as a matter of law.
C. Scope of Liability

. Although the district court’s ruling did not address the issue of Gutterz’s scope of liability, Gutterz relies on it on appeal as an alternative ground for affirming the ruling. See Pitts v. Farm Bureau Life Ins. Co. , 818 N.W.2d 91, 97 (Iowa 2012 ) (noting we may affirm on an alternative ground raised in the district court even if it was not one on which the court based its ruling). Gutterz contends that16

because the risk of Knapp assaulting Hoyt was unforeseeable as a matter of law, the harm here fell outside Gutterz’s scope of liability. A finding to the contrary, Gutterz argues, would result in an overbroad and unjust scope of liability for a tavern. Hoyt does not address this particular argument directly on appeal , but contends generally that because a reasonable person could find the harm to Hoyt was foreseeable, the district court erred in resolving the issue as a matter of law

. Al t hough we have concluded Gutterz owed Hoyt a duty of reasonable care here, we have previously noted that tort law will not always impose liability on an actor for all harm factually caused by an actor’s conduct. Thompson , 774 N.W.2d at 837. Instead, an actor’s liability is limited to those physical harms that result from the risks that make an actor’s conduct tortious. Id

. at 838 ; see also Royal Indem. Co

. v. Factory Mut. Ins. Co. , 786 N.W.2d 839, 85 2 (Iowa 2010) (“ ‘ [A]n act which merely places persons in the position where they sustain injury from an unrelated event is not for that reason a legal cause of the injury

. ’ ” (quoting Hansen v. Anderson, Wilmarth & Van Der Maaten , 657 N.W.2d 711, 715 (Iowa 2003) ) ). Th is limiting principle aims to avoid unjustified liability and to confine liability in a way consistent with the reasons for holding an actor liable in the first place. Application of the principle is fact

- intensive, requiring consideration of the risks that make an actor’s conduct tortious and a determination of whether the harm at issue is a result of any of those risks. Thompson , 774 N.W.2d at 838. Section 29 of the Restatement (Third) further explains these considerations, noting that tortious conduct may be wrongful because of various risks to various classes of persons. Restatement (Third) § 29
cmt. d , at 496. Some risks may be far more prominent than others, but all are relevant in determining whether harm is within the appropriate scope of liability for the actor’s conduct. Id.17 Further, in special relationship cases, an actor’s scope of liability may include harms that are different from the harms risked by the actor’s failure to exercise reasonable care to ameliorate or eliminate risks that the special relationship requires the actor to attend to

. Restatement (Third) § 29 cmt. r

, at 511. In other words, as a result of the bar

– patro n relationship, a range of risks may arise for which the bar has a duty of reasonable care, and in addition, a separate range of risks may arise to the extent the bar’s conduct foreseeably combines with or permits the improper conduct of a third party. Id

. Thus , as noted in our reasonable care analysis , foreseeability is relevant in the scope determination , and we have observed that the fact finder, in determining the appropriate scope of liability, must determine whether the type of harm that occurs is

a mong those reasonably foreseeable potential harms that make an actor’s conduct negligent. Thompson , 774 N.W.2d at 839 (cit ing Restatement (Third) § 29 cmt. j , at 594 )

. When courts consider the
scope

- of

- liability question on summary judgment, we have explained that they

“ m ust initially consider all of the range of harms risked by the defendant’s conduct that the jury could find as the basis for determining [the defendant’s] conduct tortious. Then, the court can compare the plaintiff’s harm with the ra nge of harms risked by the defendant to determine whether a reasonable jury might find the former among the latter. ”
Id. at 838 ( quoting Restatement (Third) § 29 cmt. d , at 496 )

. No straightforward rule can be provided to determine the appropriate level of generality or specificity to employ in char acterizing the harms. Restatement (Third) § 29 cmt. i , at 504. Where there are contending plausible characterizations of the range of r easonably for e seeable harms arising from the defendant’s conduct leading to different outcomes and requiring the drawing of an arbitrary line, the case should be left to the judgment and common sense of the fact finder

. Id

.18 At first blush, t he relevant i nquiry here given the parties’
contentions might appear to be the appropriate level of generality with which to characterize the harm that occurred. According to Gutterz, the relevant range of risk s did not include the risk that a verbal ly aggress ive patr on in a bar might suffer retaliatory harm from a patron who showed no signs of physical aggression inside the bar . Hoyt, on the other hand, characterize s the relevant range of risk s more generally and contends the risk of a physical altercation between bar patrons who had engaged in verbal conflict on the premises is well within the range

. Regardless which of these characterization s of the range of risks is adopted, however, we cannot conclude Hoyt’s harm fell outside Gutterz’s scope of liabili ty as a matter of law. For the same reasons discussed above in our reasonable care analysis, we think it plausible that a reasonable jury could find eit her characterization of the risk of harm to Hoyt as falling within the range of risks ari sing from Gutt erz’s conduct. Accordingly , the claim must survive summary judgment on the scope

- of

- liability
iss u e
. Finally, we think it pr udent to observe that the scope

- of

- liability standard is flexible enough to accommodate fairness concerns raised by the specific facts of a case. Thompson , 774 N.W.2d at 838. Whether an individual instigating a bar fight should have a viable negligence claim when the fight materializes clearly implicates questions of fairness. Those questions, however, are better left to fact finders applying ( 1) the relevant breach and scope

- of

- liability analyses , and ( 2) comparative fault law, than to a court applying summary judgment rules. See Iowa Code § 668.3(1)( a

) ( plaintiff cannot recover damages if he or she is more than fifty percent at fault); see also Mulhern v. Catholic Health Initiatives , 799 N.W.2d 104 , 121 (Iowa 2011); Restatement (Third) § 29 cmt. s , at 511

.19

IV. Conclusion. The district court erred in concluding that Gutterz , as a matter of law, could not have breach ed its duty of reasonable care. In addition , a reasonable fact finder could conclude that Hoyt’s harm was within the appropriate s cope of liability for Gutterz. G enuine issue s of material fact remain regarding e ach element of Hoyt’s negligence claim and summar y judgment was therefore inappropriate . Accordingly, we reverse the
district court ’ s dismissal of this claim and remand this case for trial.
DECISION OF COURT OF APPEALS AFFIRMED; DI STRICT
COURT JUDGMENT REVER SED AND CASE REMANDE D
. All justices concur e xcept Waterman, J., Cady, C.J., and Mansfield, J., who dissent.20 # 11

– 0085, Hoyt v. Gutterz Bowl & Lounge L.L.C.
WATERMAN, Justice (dissenting). I respectfully dissent. I agree with the dissenting judge on the court of appeals that summary judgment was correctly granted by the district court. Negligence cases in general and bar fights in particular are poor candidates for summary judgment. But, here, it is undisputed the bar owner kicked out the troublemaker. There was no reason to eject
the well

- behaved victim of the troublemaker’s verbal abuse or call the police before the quiet patron unexpectedly jumped the troublemaker in the parking lot. The evidence is insufficient to raise a jury question on negligence or scope of liability. Uncontroverted facts establish the defendant acted reasonably as a matter of law. There is no evidence or claim that prior fights or third

- party criminal acts sh owed a need for a bouncer or other security at Gutterz. Bars are not insurers strictly liable for injuries on their premises inflicted by others. So, what happened that allows Hoyt to sue Gutterz for a beating inflicted on him by Knapp in the parking lot ? Although accounts of the fight outside differ, what happened inside Gutterz is undisputed. By all accounts, Hoyt was the aggressor inside Gutterz, while Knapp remained calm. The two people working at Gutterz Bowl & Lounge in Guthrie Center, owner Ro d Atkinson and waitress Sarah Greene, knew nothing about any bad blood between these men. Hoyt had been fishing with defendant Knapp hundreds of times, but they had recently had a falling out. Hoyt and other members of his construction crew stopped by Gu tterz after work. After drinking a few beers, Hoyt and his companion, Chris Brittain, became loud and started taunting Knapp. Hoyt approached Knapp to confront him and continue his verbal harassment. It is undisputed that Knapp did not threaten Hoyt ver bally21

or physically. Greene responded to the belligerence of Brittain and Hoyt by threatening to “cut them off” unless they quieted. When their taunts
and name

- calling continued despite her warning, she talked to Atkinson who agreed they should quit serv ing them beer. Atkinson, who had been busy in the kitchen, came out to check on the situation. Hoyt complained about the decision to quit serving them alcohol. When Hoyt
and Brittain continued their name

- calling, Atkinson told them to leave. They left. Throughout this commotion, Knapp stayed quiet. He did nothing to raise a concern about his behavior or to justify kicking him out with Hoyt. Having kicked out the troublemakers

— Hoyt and his companion

— what else should Gutterz have done? How was the b ar negligent? The majority concludes a jury could find Gutterz negligent for failing to call the police. But, no crime had (yet) been committed, and Hoyt exited the bar when told to leave. Knapp was not threatening anyone or misbehaving in any way. At that point, why call the police? From Gutterz’s standpoint, the incident had been defused by Hoyt’s departure. The majority also argues Atkinson should have done more to ensure Hoyt left the parking lot safely. This theory assumes Atkinson reasonably
sh ould have foreseen Knapp would attack Hoyt. Knapp had not so much as even raised his voice. The majority fails to cite a single case from any jurisdiction supporting a property owner’s liability for a third

- party assault under equivalent facts.
This c ase is quite a bit different from the Iowa precedent holding a jury question existed on a bar’s negligent failure to prevent an assault. See, e.g. , Regan v. Denbar, Inc. , 514 N.W.2d 751 (Iowa Ct. App. 1994). In that case, plaintiff, Daniel Regan, was pla ying darts with his brothers at Katie McButts Tavern in Davenport. Id. at 752. Two men confronted the22

Regans, and one “struck Daniel in the face, knocking him to the ground”
inside the bar. Id . A fight ensued, and the bartender intervened and
asked the Regans to leave. Id. The Regans feared they would be attacked on their way to their vehicle and asked the bartender to call the police while they waited inside until the police arrived. Id. The bartender refused and sent the Regans out the back door w here he saw one of the attackers waiting. Id. at 753. The next attack on the Regans outside was reasonably foreseeable. Accordingly, the court of appeals
reversed a directed verdict for the bar. Id. In sharp contrast here, no one asked for the police to be called, and Knapp had not assaulted Hoyt or anyone inside the lounge or given any indication he would do so
outside. Our court’s recent adoption of sections of the Restatement (Third) of Torts is not the death knell for summary judgments in neglig ence

cases. See, e.g. , McCormick v. Nikkel & Assocs., Inc. , 819 N.W.2d 368,
371

– 75 (Iowa 2012). In that case, we affirmed summary judgment dismissing the plaintiff’s negligence claims against an electrical
subcontractor. Id. at 369. McCormick was electrocuted on a jobsite six days after the defendant completed its work and returned control of the locked equipment to the owner. Id. at 370. We affirmed summary judgment on two grounds. First, we applied the long

- standing rule that
l iability follows control, which we recognized as “an articulated countervailing principle or policy” exception to the general duty of care under section 7(a) of the Restatement (Third). Id . at 374. Second, we noted the absence of evidence of any defect i n the electrical work and affirmed summary judgment on the alternative ground that defendant “did not create a ‘risk of physical harm’ giving rise to a general duty23

under section 7(a) of the Third Restatement.” Id. at 375. Nothing in today’s majority opi nion limits our holdings in McCormick

. The duty of care invoked by the majority today is found in section 40(b)(3) of the Restatement (Third). The majority relies on comment j , which recognizes that businesses open to the public “owe a duty of
reasonab le care to persons lawfully on their land who become ill or endangered by risks created by third parties.” Restatement (Third) of
Torts: Liab ility for Physical and Emotional Harm § 40 cmt. j , at 43

– 44 (2012) [hereinafter Restatement (Third)] . The duty ow ed is one of
reasonable care. To raise a jury question, there must be sufficient evidence that a jury could find defendant’s conduct breached this duty, that is, the defendant acted negligently or unreasonably. Such evidence is lacking here. The drafter s of the Restatement (Third) confirm that, when “reasonable minds can reach only one conclusion,” the court may enter a directed verdict or judgment as a matter of law that defendant is “free of negligence.” Id . § 8 cmt. b , at 103

– 04 (2010).
The drafte rs also admonished that “the prospect of criminal conduct is significantly lower than the prospect of negligent conduct.”
Id. § 19 cmt. f

, at 220. Our own precedent applying the Restatement (Third) makes clear the question is whether Gutterz should have foreseen that Knapp would assault Hoyt. In Brokaw v. Winfield

- Mt. Union Community School District , a student, McSorley, assaulted Brokaw, an opposing player during a basketball game. 788 N.W .2d 386, 388 (Iowa 2010). Broka

w and his parents sued McSorley for battery and his school district for negligent failure to prevent his attack. Brokaw , 788 N.W.2d at 388. We clarified that liability under the Restatement (Third) turned on whether the district knew, or “in the exercise of ordinary care should
have kn own, that McSorley was likely to commit a battery against an24

opposing player.” Id. at 393

– 94. We upheld the district court’s bench trial judgment in favor of the district because substantial evidence supported the court’s finding the assault was not fore seeable. Id . at
394

– 95. In so holding, we concluded the correct legal standard required
a determination of whether it was foreseeable McSorley would assaul t Broka w. Id. at 393

– 94. Similarly, here, the issue is not whether a fight between Hoyt and Knapp was foreseeable, but rather whether it was reasonably foreseeable to Gutterz that Knapp would assault Hoyt. Gutterz acted reasonably as a matter of law by ejecting Hoyt, the troublemaker. Gutterz had no reason to foresee that Knapp, the quiet one, would attack Hoyt outside the lounge. I agree with the dissenting judge on the court of appeals, who concluded the “evidence does not make it foreseeable Knapp, who was causing no trouble, would harm Hoyt.” Similarly, the district court correctly concluded: The circumstances may have made it foreseeable that Hoyt might harm Knapp. The circumstances known to Atkinson did not make it foreseeable that Knapp might harm Hoyt. In the case at bar there was no evidence of a potential danger to Hoyt from Knapp. Because of that total lack of evidence, a fact question of whether Gutterz exercised reasonable care to discover the existence of a danger is not generated. Just as in Knebel v. Ka

- Boos Bar & Grill , 2004 Iowa App. LEXIS 335, in the instant case “the owne rs did not know and had no reason to know that the assault was about to occur.” Accordingly, summary judgment is appropriate. Under analogous circumstances, other appellate courts have affirmed directed verdicts or summary judgments when the assault th at occurred was not reasonably foreseeable. See, e.g. , Boone v. Martinez , 567 N.W.2d 508, 511 (Minn. 1997) (affirming directed verdict because “the evidence established that the assault by Martinez was sudden and unforeseeable”); Rader v. Sugarland Enters ., Inc. , 149 P.3d 702, 70725

(Wyo. 2006) (affirming summary judgment when assailant in parking lot fight was passive bystander in precipitating incident inside before troublemakers were told to leave). See generally Joan Teshima, Annotation, Tavernkeeper’s Liability to Patron for Third Person’s Assault , 43 A.L.R. 4th 281, 354

– 63 (1986) (collecting bar fight cases adjudicated by court as a matter of law). Summary judgment is also appropriate in this case on the scope of liability. “Under the Restatement ( Third) analysis, .

. . something [defendant] did or did not do must have increased the risk” to plaintiff. Royal Indem. Co. v. Factory Mut. Ins. Co. , 786 N.W.2d 839, 851, 851

– 52 (Iowa 2010) (vacating plaintiff’s jury verdict on grounds the harm was
outsid e the scope of liability as a matter of law). Again, there is no
evidence that Gutterz did or failed to do anything that increased the risk Knapp would harm Hoyt. To the contrary, Gutterz reduced the risk those men would come to blows by ejecting Hoyt, w ho was harassing Knapp.
In Broka w, we admonished that: Where liability is premised on the negligent or intentional acts of a third party .

. . ,“the law itself must take care to avoid requiring excessive precautions of actors relating to harms that are immediately due to the improper conduct of third parties, even when that improper conduct can be regarded as somewhat foreseeable.” 788 N.W.2d at 392 (quoting Restatement (Third) § 19 cmts. g , h , at 220

– 21). The majority disregards that admonishment to day. It is an “excessive precaution” to require Atkinson to call the police after he ejected Hoyt or to guard Hoyt outside until he left unharmed when there were only two employees working at Gutterz that afternoon, and Knapp had given no sign of trouble.26 For these reasons, I would affirm the district court’s summary judgment in favor of Gutterz. Cady, C.J., and Mansfield, J., join this dissent.