Court says man can't sue Phatty McGee's for fight injury

By The Associated Press | Friday, December 05, 2008

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The South Dakota Supreme Court has upheld a jury verdict that a man stabbed in a bar fight could not recover damages from a Rapid City nightclub.

The trial judge was correct to allow the jury to determine whether Timothy Duda assumed the risk of injury when he stepped into a fight at Phatty McGees to protect a friend, the high court said Thursday in a 4-1 ruling.

Duda was talking with a friend in the bar on March 9, 2001, when another man, Willie Guerrero, broke a beer bottle over the friend's head. When Duda stepped in front of his friend to protect him from further injury, Guerrero stabbed Duda in the neck with the broken bottle.

Duda had emergency surgery to repair damage to his jugular vein, nerves and neck muscles. He later sued Phatty McGees, arguing the bar was negligent because it failed to take adequate precautions to protect customers when it knew other alcohol-related fights had occurred in the past.

Phatty McGees contended that its security personnel responded to the fight quickly. It also argued that Duda could not recover damages from the bar because he assumed the risk of injury.

A jury found that the bar was responsible for 10 percent of the negligence and Guerrero was 90 percent responsible. Jurors also found that Duda could not recover damages from the bar because he assumed the risk of injury when he stepped into the fight.

The Supreme Court said South Dakota business owners, including bars, must use reasonable care to protect the safety of their customers, but bars cannot be held liable when customers assume the risk of injury.

Duda argued the issue of whether he assumed the risk of injury should never have been submitted to the jury, but the Supreme Court said Circuit Judge Thomas Trimble was correct to let the jury decide the issue.

People are considered to have assumed a risk of injury if they know about a risk, appreciate the character of the risk and voluntarily accept that risk, the Supreme Court said.

The high court said there is an obvious risk of injury when stepping into a bar fight involving a broken bottle, but Duda chose to take action without waiting for security personnel. A jury could reasonably decide that Duda would know about the risk after seeing the broken bottle, the justices said.

"Heroism can exact a high cost," Justice John J. Konenkamp wrote for the court. "Coming to the aid of an outnumbered friend in a fight, though understandable, and even commendable, still reflects a conscious decision to inject oneself into a volatile and dangerous situation."

Duda also argued he was entitled to a new trial because Judge Trimble answered four questions asked by the jury during its deliberations without getting input from lawyers.

The Supreme Court said a recent change in state law might be confusing, but judges still cannot answer jury questions without giving attorneys a chance to comment on what the response should be. But even though Trimble was wrong to answer the jury questions without involving the lawyers, the verdict will not be overturned because there is no evidence the judge's answers hurt Duda, the high court said.

In a dissent, Justice Judith Meierhenry said she would overturn the jury verdict because the jury instructions on the issue of assumption of risk were incomplete and could have confused jurors. She said Duda also was harmed when the judge did not notify lawyers about the jury's question on assumption of risk.