LANGTRY, J. (Pro Tempore), dissenting.
It should be noted that the evidence, in addition to that recited in the majority opinion, showed that the defendants seldom visited the operation of their restaurant during the night, but that written notification was given to them by employees about altercations occurring in the restaurant at night.
There was evidence from which a jury reasonably could draw the inference that the Hale brothers frequently were violent and dangerous. The city police officer testified that on the occasion of the Hale brothers' previous fight in this same restaurant they assaulted him from front and rear, trying to disarm him. Three officers at that time arrested David, but Jeff escaped. With reference to David the officer said that he did not try to arrest him until help came, "* * * you would have a rough time taking him by yourself. * * * You would have to know the man." These were the brothers that the defendants knowingly allowed to frequent their restaurant. In this restaurant there was no practical method provided for calling police and there were no personnel able to maintain order.
On defendants' motion to take the case from the fact finder, the evidence is to be viewed in the light most favorable to the plaintiff. Warren et ux v. Parsons et ux, 224 Or. 605, 356 P.2d 953 (1960); Johnson v. Kolovos, 224 Or. 266, 355 P.2d 1115 (1960); Brown v. Spokane, P. S. Ry. Co., 248 Or. 110, 431 P.2d 817 (1967).
Viewed in this light, I believe the plaintiff's case should have been submitted to the jury, with proper instructions.
Plaintiff's specifications of negligence included allegations that defendants allowed David and Jeff Hale, persons known to the defendant to have violent and disorderly propensities, on the premises; that they allowed disorderly conduct and the assault described, and that they failed to provide employees to maintain order.
A duty which a restaurant, amusement place, tavern, or inn operator owes his business guests is that of ordinary reasonable care to protect them from injury at the hands of third persons while they are guests. Peck v. Gerber, 154 Or. 126, 59 P.2d 675, 106 ALR 996 (1936); Moone v. Smith, 6 Ga. App. 649, 65 S.E. 712 (1909); Edwards v. Great American Insurance Co., 146 So.2d 260 (La Ct App 1962); Connolly v. The Nicollet Hotel, 254 Minn. 373, 95 N.W.2d 657, 74 ALR2d 1227 (1959); Shank v. Riker Restaurants Associates, Inc., 28 Misc.2d 835, 216 NYS2d 118, affirmed 15 A.D.2d 458, 222 NYS 2d 683 (Sup Ct 1961); Molloy v. Coletti, 114 Misc. 177, 186 NYS 730 (Sup Ct 1920); Rommel v. Schambacher, 120 Pa. 579, 11 A. 779 (1887); Miller v. Staton, 58 Wn.2d 879, 365 P.2d 333 (1961); Annotations, 70 ALR2d 628 (1960); 106 ALR 1003 (1937); and 42 ALR 1088 (1926).
These authorities hold that evidence supporting allegations of negligence similar to those alleged here suffice for recovery of damages by the plaintiff. Some such cases refer to the duty only in a situation where one customer injures another, but others specifically include a customer or any other third person injuring a customer. Edwards v. Great American Insurance Co.; Moone v. Smith; Molloy v. Coletti; Shank v. Riker Restaurants Associates, Inc.; Connolly v. The Nicollet Hotel, supra. See also Comment in 70 ALR2d at page 645.
The Annotation in 106 ALR 1003, following the report of the leading Oregon case, Peck v. Gerber, supra, comments that the degree of care required fluctuates with each case; consequently, proprietors serving liquor are required to exercise "somewhat greater care" than those who don't. The Annotation in 70 ALR2d 628 following the report of Priewe v. Bartz, 249 Minn. 488, 83 N.W.2d 116, 70 ALR2d 621 (1957), collects more recent cases. These agree with the Comment in 106 ALR. See also Connolly v. The Nicollet Hotel, supra, syllabus 5 at page 374 of 254 Minn.
In the instant case, the reason for the rule which puts a greater duty upon the bar operator than the restaurant operator applies against the defendants, for the evidence shows that the defendants, in the same building and as a part of the same operation, separated only by a partition with connecting service openings, operated a bar in which they had to observe the legally required closure at 2:30 a.m. There were several other bars in the area with the same restriction. Customers from the bars regularly gathered in the defendants' restaurant after this closure because it was the only one in town which remained open for business. Operators in the place of defendants reasonably could be expected to foresee under the evidence produced that at 3:00 a.m., this crowded restaurant would have disorderly customers.
The Annotation in 70 ALR2d at page 657 comments:
"* * * [T]he courts attach considerable weight to the fact that [the] proprietor of the establishment where the injury occurred had some notice of the possibility of harm from prior actions of the person causing the injury, either on the occasion of the injury, or on previous occasions."
In Coca v. Arceo, 71 N.M. 186, 376 P.2d 970 (1962), a case which relied upon Peck v. Gerber, supra, the court said:
"* * * The rule does not require a long and continued course of conduct to find that the proprietor had knowledge of the violent disposition of the other patron — all that is necessary is that there be a sequence of conduct sufficiently long to enable the proprietor to act for the patron's safety. It is not necessary that the proprietor know of a history of a series of offenses against the peace * * *." 71 NM at 190.
Nevin v. Carlasco, 139 Mont. 512, 515, 365 P.2d 637 (1961), reviews the authorities, including
Peck v. Gerber, supra, which it refers to as a leading case and holds the duty of a proprietor to protect his customers from injury exists where one or more of these, among other circumstances, are shown by the evidence:
"(1) [When he] * * * allowed a person on the premises who has a known propensity for fighting.
"* * *
"(5) [He] * * * failed to provide a staff adequate to police the premises.
"(6) [He] * * * tolerated disorderly conditions."
Essentially the same tests are set up by the Washington. Supreme Court in Miller v. Staton, supra, where cases, including Peck v. Gerber, supra, are cited in support of each test. To the same effect see syllabi 2, 4, 5 and 6 in Connolly v. The Nicollet Hotel, 254 Minn at 373, 374, supra, in support of each test.
Based upon the facts and the foregoing authorities, I believe that granting the motion for directed verdict in the case at bar was error unless plaintiff's voluntary injection of himself into the beating of the victim by the Hale brothers was a superseding cause, or unless the fact that the brothers and their victim had left the restaurant where they had been customers some 10 to 15 minutes before and then returned broke the chain of causation. On the basis of precedents cited above, I think it is immaterial whether the Hales were, at the time of the assault, customers or non-customers if the jury were to find that defendants allowed them to frequent the premises and knew they had violent propensities. In Shank v. Riker Restaurants Associates, Inc., supra, an assailant had come into a restaurant and was abusive toward customers. The court held that it did not break the chain of causation as to the proprietor's negligence in not calling the police simply because the assailant went out of the restaurant a few seconds before he came back in and assaulted the plaintiff. The court held that if the sequence of events makes them into one related incident it is sufficient to create a fact question as to causation. Applying this reasoning to the facts in the case at bar with reference to the absence from the restaurant of the Hale brothers for 10 to 15 minutes, after they had been its patrons, I think that the question of causation was one of fact. Cf. Hills v. McGillvrey, 240 Or. 476, 482, 402 P.2d 722 (1965):
"* * * When reasonable persons can differ upon the point, the question of `substantial' or `proximate' cause is for the jury * * *."
Will the fact that plaintiff volunteered, that is, tried to rescue the victim from the beating, prevent him from recovery if he was otherwise entitled to recover? The answer is found in the logic of Mr. Justice Cardozo in Wagner v. International Ry. Co., 232 N.Y. 176, 133 N.E. 437, 19 ALR 1 (1921):
"Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperilled victim; it is a wrong also to his rescuer. * * * [Citing many cases] The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man * * *."
232 NY at 180.
See Annotation following this case in 19 ALR 4 (1922), Annotation, 158 ALR 189 (1945), and 38 Am Jur 738, Negligence § 80. In the instant case it would be for the jury to determine whether plaintiff's action was foolhardy or "wanton."
Defendants in their brief press upon the court the decision in Boss v. Prince's Drive-Ins, 401 S.W.2d 140 (Tex Civ App 1966). There plaintiff was a customer of a drive-in restaurant who intervened in a quarrel which appeared about to erupt into a fight between some licensees (noncustomers) upon the drive-in premises. Plaintiff was beaten by one of them. He attempted to hold the proprietor of the drive-in for negligence in not calling the police, because the licensees had been around the premises and involved in the argument for about three-quarters of an hour before the plaintiff was injured. The report of that case does not indicate that there was evidence, as there was in the case at bar, about previous altercations, or that the assailants were known to the operator to be violent, or about adequacy of personnel to protect customers.
In Rawson v. Massachusetts Operating Co., Inc., 328 Mass. 558, 105 N.E.2d 220, 29 ALR2d 907 (1952), the plaintiff sought damages for injuries from the proprietor of a theatre where he was a customer when, in seats in front of him, one young man was physically restraining and struggling with another causing plaintiff to intervene. He was injured by the assailant youth. The court said:
"* * * [T]hat the defendant should have known that if it did not take such action [to control disorder in the theatre], it was to be reasonably anticipated that patrons might undertake to supply the omission; and that if that happened, the authors of the rowdyism might resent such unofficial interference with their misbehavior, and might even commit a cowardly assault in the dark upon a remonstrating patron * * *."
328 Mass. at 560.
Where there is evidence as strong as that produced in this case, evidence which, when tested by the rule favoring the plaintiff on a motion for directed verdict, could leave reasonable minds in doubt, it is almost uniformly held that the questions of negligence and causation are for the jury. Hill v. Merrick, 147 Or. 244, 31 P.2d 663 (1934): Marshall v. Nugent, 222 F.2d 604, 58 ALR2d 251 (First Cir 1955); Miller v. Staton, supra; Coca v. Arceo, supra; Reilley v. 180 Club, Inc., 14 NJ Super 420, 82 A.2d 210 (1951). In Marshall v. Nugent, supra, the court said:
"When an issue of proximate cause arises in a borderline case, as not infrequently happens, we leave it to the jury with appropriate instructions. We do this because it is deemed wise to obtain the judgment of the jury, reflecting as it does the earthy viewpoint of the common man — the prevalent sense of the community — as to whether the causal relation between the negligent act and the plaintiff's harm which in fact was a consequence of the tortious act is sufficiently close to make it just and expedient to hold the defendant answerable in damages. That is what the courts have in mind when they say the question of proximate causation is one of fact for the jury. [Citing cases] It is similar to the issue of negligence, which is left to the jury as an issue of fact. Even where on the evidence, the facts are undisputed, if fair-minded men might honestly and reasonably draw contrary inferences as to whether the facts do or do not establish negligence, the court leaves such issue to the determination of the jury * * *."
222 F.2d at 611.
It is my opinion that the evidence and the law applicable are such that the case should have been submitted to the jury with proper instructions. Therefore, I would reverse the order of the trial court and remand the case for a new trial.