IN THE SUPREME COURT OF IOWA

No. 11–0085

Filed April 5, 2013

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 plaintiff brought a negligence action alleging he was assaulted 

and injured on the defendant’s premises. The district 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 COURT JUDGMENT REVERSED 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 Wiedenfeld &

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 precluded 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 

plaintiff–appellant Hoyt supports the following factual findings. 

Defendant–appellee Gutterz Bowl & Lounge (Gutterz) is a bowling alley 

and tavern located in Guthrie Center, Iowa. On March 20, 2009, Curtis 

Hoyt and several members of his construction crew finished 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 result of Hoyt’s alleged 

mistreatment of the sister of Knapp’s friend. The record reveals no 

evidence tending to prove the staff of Gutterz had any knowledge of this

history between Hoyt and Knapp.

After consuming a few beers, Hoyt and coworker 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 Brittain 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 bar 
3

area to assess the situation. Hoyt and Brittain complained to Atkinson 

that they were no longer being served and continued to taunt Knapp.

Shortly 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 struck 

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 sustained when Knapp 

assaulted him. Gutterz moved for summary judgment, alleging Gutterz 

owed Hoyt 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 

foreseeable. The 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 foreseeable to Gutterz. Having found Hoyt’s 

injury was not foreseeable 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 

 

1Atkinson’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. 

2The police ultimately charged both Hoyt and Knapp with disorderly conduct as 

a result of the incident. 
4

failed 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 judgment 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 section 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 considered when the fact

finder decides whether a defendant has failed to exercise reasonable 

care. Id. at 835. Consistent with its understanding that foreseeability is 

no longer part of the duty determination, the court of appeals applied 

section 40 of the Restatement (Third), entitled “Duty Based on Special 

Relationship With Another,” in analyzing Hoyt’s claim. Concluding

Gutterz owed Hoyt a duty under section 40 and finding Hoyt had raised 

fact questions as to foreseeability related to the issues of breach 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 errors 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 

 

3In reaching its conclusion, the court applied section 344 of the Restatement 

(Second) of Torts, entitled “Business Premises Open to Public: Acts of Third Persons or 

Animals.” 
5

law. 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 reasonably deduced from the record.” Van 

Fossen v. MidAmerican 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) even 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 

appropriate 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). Traditionally, Iowa courts examining 

whether a landowner has a duty to protect visitors from the conduct of 

third parties relied upon section 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 that 
6

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 likelihood 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 439–40; Martinko, 

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 which 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 then rejected an assessment of foreseeability of risk in determining 

whether the landowner owed the driver a duty. We adopted the general 

duty formulation of section 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 with 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 directly 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 use of foreseeability, or lack thereof, in making no-duty 

determinations. Id. at 835. Instead, we explained, no-duty rulings 
7

should be limited to exceptional cases in which “ ‘an articulated 

countervailing principle or policy warrants denying or limiting liability 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 duty to exercise reasonable care would not 

depend on the foreseeability 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 Restatement (Third) describes duty principles, 

some of which overlap with section 7’s general duty, more specifically for 

special relationships such as landowner–visitor or business–patron

relationships, 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,

. . . .

Restatement (Third) § 40, at 39 (2012). Comment g explains that section 

40’s contemplated duties apply 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 the 
8

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 

persons 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 section 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 relationships contemplated 

by section 40 encourages simplicity and predictability. Limiting no-duty 

rulings to exceptional problems of policy 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, 

foreseeability 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 specific allocations of decisionmaking power between the judge and jury. Id. at 835 (removing 

 

4Section 37 states a principle complementary to the general duty principle of 

section 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 sections 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 evaluated in 

determining whether the section 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 ed. 2011) 

(“Foreseeability [of harm] is seldom if ever a pure fact . . . [and] 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 again 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 summary 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 justifies exempting 

Gutterz, or the class of tavern owners in general, from the duty to 

exercise reasonable care. The parties have not advanced, and we cannot 

discern, any such considerations compelling exemption of tavern owners 

from the duty. Tavern owners fit squarely within the class of business 

owners contemplated by section 40(b)(3). Section 40 enumerates several 

justifications for requiring business owners to exercise due care:

 

5As noted above, 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. HN-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 meaning 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 superior 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 breach 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 thirdperson 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. The

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 the 
11

person’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 bring the 

plaintiff to a location where the plaintiff is exposed to thirdparty 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 

create 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 environment where instances 

of misconduct are likely to take place raises converging questions of 

reasonable care and the appropriate scope of liability for the defendant. 

Restatement (Third) § 19 cmt. c, at 216–17. In a tavern, for example, the 

environment may foreseeably bring about the misconduct of a third 

 

6We 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 may 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 plaintiff 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 where liability is based on the intentional acts of a third 

party, we must take care to avoid requiring excessive precaution relating 

to these acts, even when the improper conduct may be regarded as 

foreseeable in the abstract. Brokaw v. Winfield-Mt. Union Cmty. Sch.

Dist., 788 N.W.2d 386, 392 (Iowa 2010). 

In Brokaw, for example, 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 of 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 within view of his coaches and had committed an 

egregious foul. Id. at 394. We observed, however, that there was no

evidence in the record that the opposing player had a history of 

physically dangerous conduct. Id. We therefore concluded there was 

substantial 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 the Restatement (Third) illustrates 

scenarios where 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 persons’ 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 conflict with Knapp, 

reasoned the court, and thus, Gutterz could expect harm to Knapp but 

had no reason to expect harm to Hoyt. Mindful of section 19’s 

instructions that foreseeability should be evaluated in the relevant frame 

of time and place, and that foreseeability may arise in environments 

where instances of physical misconduct are likely to take place, we 

disagree that the record established as a matter of law that an injury to 

Hoyt was unforeseeable. Gutterz’s duty of reasonable care applied 

“regardless 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 Knapp, 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 Hoyt 
14

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

alcohol-fueled disturbances 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 changes 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 836. 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 Hoyt may have initiated the conflict 

cannot serve as the basis for summary judgment that Gutterz acted 

reasonably under the circumstances. 

Although the district court did not clearly address whether the 

record established reasonable care by Gutterz, Hoyt contends that 
15

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 parking lot. Gutterz contends that it did escort Hoyt to 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 significant bearing on the 

reasonable care determination. We emphasize that our recognition 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 required 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 reasonable care required under these 

circumstances is for the jury; it is only in exceptional cases that such 

questions may be decided as matters of law. Iowa R. App. P. 6.904(3)(j). 

Given the 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 that
16

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. 

Although 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, 852 (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))). This 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–patron

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 

among those reasonably foreseeable potential harms that make an 

actor’s conduct negligent. Thompson, 774 N.W.2d at 839 (citing 

Restatement (Third) § 29 cmt. j, at 594). When courts consider the 

scope-of-liability question on summary judgment, we have explained that

they

“must 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 range 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 characterizing the harms. 

Restatement (Third) § 29 cmt. i, at 504. Where there are contending 

plausible characterizations of the range of reasonably foreseeable 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, the relevant inquiry 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 risks did not include the risk that a verbally aggressive 

patron 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, 

characterizes the relevant range of risks 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 characterizations of the range of risks is adopted, 

however, we cannot conclude Hoyt’s harm fell outside Gutterz’s scope of 

liability 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 either characterization of the risk of harm to Hoyt as falling 

within the range of risks arising from Gutterz’s conduct. Accordingly, 

the claim must survive summary judgment on the scope-of-liability 

issue. 

Finally, we think it prudent 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 breached its duty of reasonable care. In addition, a 

reasonable fact finder could conclude that Hoyt’s harm was within the 

appropriate scope of liability for Gutterz. Genuine issues of material fact 

remain regarding each element of Hoyt’s negligence claim and summary 

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; DISTRICT 

COURT JUDGMENT REVERSED AND CASE REMANDED.

All justices concur except 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 showed 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 Rod 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 Gutterz 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 verbally 
21

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 serving 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 bar 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 

should 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 case 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 playing darts with his brothers at 

Katie McButts Tavern in Davenport. Id. at 752. Two men confronted the 
22

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 where 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 negligence 

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 

liability 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 in 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 duty 
23

under section 7(a) of the Third Restatement.” Id. at 375. Nothing in 

today’s majority opinion 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 

reasonable care to persons lawfully on their land who become ill or 

endangered by risks created by third parties.” Restatement (Third) of 

Torts: Liability for Physical and Emotional Harm § 40 cmt. j, at 43–44 

(2012) [hereinafter Restatement (Third)]. The duty owed 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 drafters 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 drafters 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). Brokaw 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 known, that McSorley was likely to commit a battery against an 
24

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 foreseeable. Id. at 

394–95. In so holding, we concluded the correct legal standard required 

a determination of whether it was foreseeable McSorley would assault 

Brokaw. 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 owners 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 that 

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, 707 
25

(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 

outside 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, who was harassing 

Knapp. 

In Brokaw, 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 today. 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.