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12/08/94 JAY DAVIS v. TOMMY ALLHANDS

December 8, 1994

JAY DAVIS, PLAINTIFF-APPELLEE,
v.
TOMMY ALLHANDS, LEE BYERS AND ROBERT PIERCE, DEFENDANTS, AND A-FRAME LOUNGE, INC., DEFENDANT-APPELLANT.



Appeal from Circuit Court of Vermilion County. No. 91L185. Honorable Tracy W. Resch, Judge Presiding.

Petition for Rehearing Denied and Released for Publication January 11, 1995. As Corrected February 1, 1995.

Justices: Honorable Robert W. Cook, J., Honorable Frederick S. Green, J., Honorable Carl A. Lund, J., Dissenting.

The opinion of the court was delivered by: Cook

JUSTICE COOK delivered the opinion of the court:

Plaintiff Jay Davis sued defendant A-Frame Lounge, Inc., to recover damages resulting from a battery that occurred on defendant's premises. The jury returned a verdict in favor of plaintiff and awarded him $956,271. Following the jury's determination that plaintiff was 5% contributorily negligent, the trial court entered judgment against defendant in the amount of $908,457.45. Defendant appeals, contending (1) the evidence was insufficient to establish a duty to protect plaintiff from the criminal act of a third party because the assault was not reasonably foreseeable; (2) the trial court erred in admitting reputation evidence to prove defendant's knowledge of Allhands' violent nature; (3) defendant's negligence, if any, was not a proximate cause of plaintiff's injury; (4) Allhands' assault and plaintiff's action in voluntarily joining the fight were both superseding causes of plaintiff's injury; (5) the jury's apportionment of negligence was against the manifest weight of the evidence; and (6) the verdict was a product of passion and prejudice. We reverse.

Plaintiff testified he was 47 years old and a former self-employed carpenter for Davis Construction. On August 5, 1991, plaintiff and his nephew, Kevin Davis, went to defendant's establishment at approximately 10:30 or 11 p.m. Plaintiff had never been in the bar during open hours but had been there during the daytime. When they arrived, Steve Cannon and one of the bar's owners, Hubert Scott, were sitting at the bar and were the only persons present. Plaintiff stated he sat 8 to 10 feet from Scott and could hear Scott talk. Plaintiff had been a bouncer for 32 years and, after looking into Scott's eyes and observing Scott's difficulty getting on and off his stool, determined Scott was intoxicated. Plaintiff testified Scott drank over three or four Bud Lights while plaintiff was in the bar.

Plaintiff testified that Lisa Jenkins, a friend of Scott's who occasionally helped out at the bar, arrived around midnight. He indicated she got herself a drink and then began waiting on people. Plaintiff had one drink and started another. Tommy Allhands came in with Bobby Carson and Shelley Lucas, a young woman plaintiff described as "more dangerous than a snake." Plaintiff had removed Lucas from a bar he worked at the previous Friday night. As the three entered the bar, plaintiff stated, "Here comes trouble." Plaintiff testified Kevin heard this comment but continued to play pool. However, Scott, according to plaintiff, responded he had seen Allhands before and Allhands had been to the bar once before and had caused no problems.

When Jenkins asked Allhands for identification, plaintiff observed Allhands give Jenkins the finger and shake his fist at her. Plaintiff had seen Allhands engage in this type of behavior before and noted Allhands had a tendency to push it to a further point than most would. After getting drinks, Allhands asked several people in the bar if they would play pool for $20. Plaintiff was not a pool player and refused, but Kevin agreed to play.

After their third game, Kevin and Allhands became loud. Plaintiff testified he heard Allhands swearing and complaining about losing. When Kevin said he was finished playing and turned to hang his cue stick on the wall, Allhands struck Kevin with a pool ball on the side of his head. Plaintiff testified Scott either sat on his stool or stood at the end of the bar until Kevin fell to the ground, when Scott ran over to the fight. Plaintiff then walked to the fight and saw Scott, kicked by Carson, fall to the floor. Lucas was also kicking Scott. Plaintiff, trying not to hurt anyone, grabbed Allhands, wrung the ball from his hands, wrestled him to the floor and placed his knee in the middle of Allhands' chest. He said, "It's over with" and "let's just forget it" to Allhands. Lucas had jumped on plaintiff's back and was biting his neck, so plaintiff flipped her. As plaintiff rose to his feet, he got hit in the face. Plaintiff nearly fell to the floor but quickly rose and punched Allhands once or twice. Plaintiff testified he then pushed his eyeball back into the socket, as it had been hanging on his cheekbone. Cannon told him the eyeball looked like nothing but blood.

Jenkins then came over and said she had called 911. Plaintiff and Kevin testified Scott said, "Call them back, tell them we don't need them. We don't need the shit." Allhands and his companions left the bar. Kevin then took plaintiff to the hospital.

Kevin testified he had been to the A-Frame 10 to 12 times prior to the night of August 5, 1991. When he and plaintiff arrived that night, Kevin sat next to Cannon and plaintiff sat next to him. Kevin noticed Scott was drinking a Bud Light and determined Scott was intoxicated, based upon his slurred speech and the fact that he staggered a bit when he walked. Kevin testified he said to Scott, "Looks like you're in fine form today," to which Scott replied, "I've been at it all day." Kevin saw Jenkins come in and noticed she was drinking a beer.

Kevin sat at the bar for 30 minutes, then played two games of pool with his friend Shane Gastin. He observed Allhands, a guy and a young woman enter the bar and noticed Scott was behind the bar when they arrived. He testified Allhands threw his wallet and driver's license on the bar in response to Jenkins' request for identification. However, Kevin stated Allhands seemed friendly enough, and he and Allhands ultimately agreed to play pool for $5.

Kevin quickly won the first two games. He believed Allhands was intoxicated because he slurred his speech and tripped over the pool table once, "staggering hard." Allhands had two beers and a shot of liquor while they were playing pool. After losing the second game, Allhands threw money on the pool table. Kevin then intentionally lost the third game because Allhands "acted like he wanted to fight or something and I didn't want no part of it." Kevin acknowledged plaintiff knew of Kevin's prior involvement in at least two bar fights. Kevin and Allhands exchanged words over who would win if they should play in the future, and Kevin stated Allhands got in his face. As Kevin turned to hang his cue up, he felt something hit him in the back of the head, and he fell down. Kevin testified Scott then ran back to the fight, yelling "Help me get them apart." Plaintiff pulled Allhands off Kevin; Carson then ran over and began kicking Kevin in the side. Kevin's ex-wife, Crystal Wagner, came over and told Kevin to calm down. As plaintiff rose to his feet, Allhands wriggled out from under him, picked up a cue stick from the floor, and swung it like a baseball bat at plaintiff. Kevin yelled "Look out, Jay Dee!" and lunged forward, but he was too late. The stick hit plaintiff across the forehead and in his left eye. Kevin hit Allhands three or four times and then Allhands, along with Carson and Lucas, ran out of the bar.

Emery Johnson owned 50% of the A-Frame Lounge as of August 1991. Two to three months after the A-Frame opened, Johnson had called the police during a fight; he testified Scott told him he should not have done so because it would "just cause more problems." Johnson testified he talked with Jenkins a week after the fight in question and she said Scott had had quite a bit to drink that night. Johnson stated Scott came to his used car lot on the morning of August 6, 1991, to tell him about the events of the night before. At that time, Scott told Johnson he knew Allhands because Allhands had been in there before. Johnson then admitted Scott did not know Allhands personally, but merely knew who he was. At the time of trial, Johnson was a plaintiff in a lawsuit against A-Frame, and he admitted he had been convicted of theft by deception in April 1991.

Steve Cannon had known plaintiff since his childhood. He testified he heard plaintiff say "here comes trouble." When Cannon had asked what he meant, plaintiff had stated Allhands was barred from about every place in the county. Cannon did not think plaintiff's comment was directed at Scott, as he and plaintiff had been talking all evening and Scott had not been involved in any of their conversations. Cannon did not know Allhands and was surprised at plaintiff's comments, because Allhands did not look like a troublemaker. He did not notice any yelling or commotion coming from the pool table before the fight. He stated he missed the fight because he went to the men's room, which plaintiff corroborated. He remembered Scott had a glass of something to drink, but he was not sure what was in it. He did not remember that Scott was drunk.

Crystal Wagner testified that when she and a friend arrived at the A-Frame around midnight or 12:30 a.m., Kevin and Allhands were playing pool. After the game was over, the two men argued over who had won. At that point, plaintiff and Scott went over to the pool table to tell Kevin and Allhands to keep their voices down. Suddenly, plaintiff was trying to hold Allhands down, and Scott was holding Kevin. Wagner did not see the injury; she only saw plaintiff walking through the bar looking for a rag after it had happened. She stated the ...


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