Last month, in the case of Del Lago Partners, Inc., et al. v. Smith, ___ S.W.3d ___ (Tex. 2009)(4/2/10), the Texas Supreme Court upheld a verdict in favor of a customer of a bar. The patron was severely injured when a fight broke out between rival groups as the bar was closing and funneling all customers out through one exit. The groups had engaged in “threats, cursing, and shoving” for ninety minutes beforehand, yet the bar had not called security or closed down, and instead had continued to serve drinks. The Supreme Court affirmed a $1.48 million award – based upon a jury finding that the bar was 51% at fault and the injured customer was 49% at fault – agreeing with the court of appeals: “‘A reasonable person who knew or should have known of the one-and-a-half hours of ongoing ‘heated’ verbal altercations and shoving matches between intoxicated bar patrons would reasonably foresee the potential for assaultive conduct to occur and take action to make the condition of the premises reasonably safe.'” Thus, while there is no universal duty to protect a patron, in this case the brawl was foreseeable.
A legal duty is a question of law. “In premises-liability cases, the scope of the duty turns on the plaintiff’s status. Here, Smith was an invitee, and generally, a property owner owes invitees a duty to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition about which the property owner knew or should have known.” Bar owners do not “always or routinely” have a duty to protect patrons from each other. “Generally, a premises owner has no duty to protect invitees from criminal acts by third parties. We have recognized an exception when the owner knows or has reason to know of a risk of harm to invitees that is unreasonable and foreseeable.” Here, proof of criminal acts or prior occasions was unnecessary. “[C]riminal misconduct is sometimes foreseeable because of immediately preceding conduct.” In this case, Del Lago had a duty “because [it] had actual and direct knowledge” of an imminent violent brawl. Its duty “arose not because of prior similar criminal conduct but because it was aware of an unreasonable risk of harm at the bar that very night.” The “unreasonableness” of a risk, which is not completely separated from foreseeability, “turns on the risk and likelihood of injury . . . as well as the magnitude and consequences of placing a duty on the defendant.”
To determine duty, “‘the court will consider several interrelated factors, including the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant.'” This case does not announce a “general rule” of a duty, but “on these facts” the defendant had a duty. That duty requires the premises owner to “‘either adequately warn of the dangerous condition or make the condition reasonably safe.'” Here, there was evidence of the breach of the duty by not contacting security, continuing to serve drinks, and inadequate training. That the plaintiff was found to be contributory negligent did not eliminate the defendant’s duty. “[W]e have expressly abolished a ‘no-duty’ doctrine previously applicable to open and obvious dangers known to the invitee,” as does the comparative negligence statute. Moreover, in “some circumstances, no warning can suffice. . . .”
Accordingly, while the Supreme Court ordinarily will not affirm a judgment against a premises owner in favor of person injured by criminal misconduct on the property, “on this record this sequence of conduct on this night in this bar could foretell this brawl.”