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Boomers not at fault for brawl

By Jessica M. Karmasek | Jan 20, 2011


BOISE, Idaho (Legal Newsline) - The Idaho Supreme Court has ruled that a Lewiston-area bar, Boomers, was not responsible for injuries allegedly inflicted upon a man during a random, outside brawl

In a 10-page opinion filed Jan. 10, the Court affirmed the summary judgment of the District Court of the Second Judicial District of the State of Idaho, Nez Perce County.

The district court held that no duty was owed to appellant Joshua Jones, who was allegedly injured by an unknown assailant during the fight, by Boomers and there was not a sufficient causal connection between Jones' injury and any duty owed by the bar.

On Dec. 17, 2005, Jones and his wife, Laura, went to dinner with his sister, Sprie Tucker, and her husband, George "Bear" Tucker.

After dinner, the four picked up a friend and drove him to Boomers. Jones said he parked his truck in front of the bar and the four waited for the friend to come back out, never entering Boomers.

Soon after, the Joneses observed a bouncer escort a patron out of the bar onto the sidewalk.

While witnesses have different accounts of how the patron was brought out, each has said that after the patron was brought out, he bounced up off the sidewalk and hit the Joneses' truck.

Before the patron was brought out, Laura Jones testified there was no one in the street. Soon after, the Joneses saw a group of people spill out of Boomers and onto the street and sidewalk near where their truck was parked.

When Joshua Jones got out of the truck to try to clear a path to leave, he was subsequently struck in the face and knocked to the ground by a member of the group.

His wife and Sprie Tucker both identified Joshua Jones' assailant as "(a) man of either Indian or Mexican descent, wearing a puffy coat," but could not provide any further description. Joshua Jones also cannot identify anything about his assailant.

Months later, on April 11, 2006, the Joneses filed a complaint alleging negligence against Jay and Julie Starnes, who are shareholders of TTJ's Inc., doing business as Boomers, to recover for Joshua Jones' injuries. The couple also filed an amended complaint on Oct. 15, 2008.

Boomers then filed its motion for summary judgment on June 4, 2009, arguing there was no duty of care owed to the Joneses by Boomers. On Sept. 16, 2009, the district court granted the bar's summary judgment.

Justice Warren E. Jones, who authored the Court's opinion, noted that the Joneses were not patrons of Boomers.

"Since Mrs. Jones testified in the form of an affidavit that she did not see anyone in the street before the attack, the Joneses provided sufficient evidence for the purposes of summary judgment to raise a fact issue and create a reasonable inference that there was no one else in the street outside Boomers. Thus, we must infer that the assailant came from Boomers, and was a patron," the justice wrote.

Even if Joshua Jones was a patron, the Court said, and the injury occurred on the premises, the assault was not foreseeable because there is no evidence that the bar had knowledge of the unknown assailant's "violent propensities."

There also is no indication, the Court said, that the group of people that allegedly left Boomers left any way other voluntarily.

There also is no evidence as to whether the bar served any alcohol to the group, and no evidence as to what sparked the altercation, it said.

"Thus Boomers did not have any evidence to indicate a likelihood of violence in regard to them," the Court wrote.

It also doesn't help that none of the witnesses can identify the assailant and that the attack happened on a public street or sidewalk, the Court pointed out.

The Joneses also tried to argue that Boomers had a duty to control its employees.

"However, the injury to Mr. Jones did not result from a lack of control of any Boomers employee, but rather from the actions of an unknown third party who assaulted Mr. Jones," the Court wrote.

The couple also argued that the bar's actions created a public nuisance.

The state's high court shot down that argument, as well.

The nuisance statute prevents interference with the "comfortable enjoyment of life or property" by anything injurious to health or morals, indecent, offensive to the senses, or an obstruction to the free use of property.

The Court wrote, "There is no evidence that Boomers had control of the people on the sidewalk or street where the incident occurred. Thus, there is not sufficient evidence to show that Boomers must 'stop causing' an attack by an unknown assailant on a third party who is not a patron of the establishment, that did not occur on Boomers' property."

Costs were awarded to Boomers on appeal, but no attorney fees were awarded.

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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