Feb. 24, 2011 – A tavern owner has a duty to protect members of the public while “on the premises.” A tavern parking lot is considered part of the premises even if the tavern does not own the parking lot, the District III Wisconsin Court of Appeals recently held.
In 2005, a group of customers were kicked out of the Chuckwagon Bar and Grill in Spread Eagle for acting in an unruly manner. Other customers, including Michael Flynn, followed them outside into the parking lot where a fight broke out.
Someone punched Flynn in the head. He sued Audra’s Corporation (Audra’s), which owns the tavern, arguing that Audra’s breached its duty to protect him from harm caused by third persons while on the tavern’s premises.
Audra’s argued that the parking lot, though used by its patrons, was not considered part of its premises because the Wisconsin Department of Transportation owned it. Audra’s moved for summary judgment, but the Florence County Circuit Court denied the motion.
In Flynn v. Audra’s Corp., 2010AP882 (Feb. 23, 2011), the appeals court affirmed the circuit court’s denial of summary judgment. In an opinion written by Deputy Chief Judge Gregory Peterson, the court ruled that a tavern owners duty of care extends to a parking lot maintained by the tavern, even if the tavern does not own the parking lot.
Wis. JI–Civil 8045 states that a proprietor of a tavern has “a duty to use ordinary care to protect members of the public while on the premises from harm caused to them by the accidental, negligent, or intentional acts of third persons.”
The appeals court explained that ownership is not the sole basis of determining when a patron is considered “on the premises.”
“[A] tavern owner has a duty to protect patrons because the owner has superior knowledge of dangers that the place and character of the business may pose,” Judge Peterson wrote. “This rationale applies equally regardless of whether a patron’s injuries in a parking lot owned by the tavern or in an adjacent area that the tavern maintains and uses as a parking lot.”
In ruling, the appeals court distinguished Delvaux v. Vanden Langenberg, 130 Wis. 2d 464, 387 N.W.2d 751 (1986), a case in which two patrons started fighting while playing billiards inside the tavern, but the fight continued after the patrons were separated and kicked out. One patron fatally beat the other several blocks away from the bar.
“Delvaux certainly does not stand for the proposition that the term ‘business premises’ only encompasses property legally owned by the tavern,” Judge Peterson wrote.
The appeals court also clarified that the term “licensed premises” as used in the case of Symes v. Milwaukee Mutual Ins. Co, 178 Wis.2d 564, 505 N.W.2d 143 (Ct. App. 1993) is synonymous with the term “business premises” in determining the reach of a tavern owner’s liability.
By Joe Forward, Legal Writer, State Bar of Wisconsin