COURT OF APPEALS
DECISION
DATED AND FILED
September 16, 2008
David R. Schanker
Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT III
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Steven A. Kolstad and Susan M. Kolstad,
Plaintiffs-Appellants,
v.
White Birch Inn, LLC, Donald A. Klukus and
Alea London, Ltd.,
Defendants-Third-Party
Plaintiffs-Respondents,
v.
Josh I. Frank, Duane A. Johnson, Jr., Jesse W. Fedie,
Ryan C. Calkins, Justin M. North and Curtis J. North,
Third-Party
Defendants,
Wilson Mutual Insurance Company and American Family Mutual
Insurance Company,
Intervening-Defendants.
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APPEAL
from a judgment of the circuit court for Chippewa County: roderick
a. cameron, Judge. Affirmed.
Before Hoover,
P.J., Peterson and Brunner, JJ.
¶1 PER CURIAM. Steven and Susan Kolstad appeal
a summary judgment dismissing their personal injury action against White Birch
Inn, its owner and its insurer. Their action is premised on injuries Steven
sustained in a fight in the Inn’s parking lot with members of a wedding party
that had a reception at the Inn. The Kolstads argue the Inn
breached its duty to protect patrons from harm by not employing a bouncer and
by serving alcohol to intoxicated and underaged assailants. Because the supporting papers establish no
issue of material fact and the defendants are entitled to judgment as a matter
of law, we affirm the judgment. See Wis.
Stat. § 802.08(2).
¶2 To the extent any facts are in dispute, we utilize the facts
most favorable to the Kolstads. Stone
v. Board of Regents, 2007 WI App 223, ¶9, 305 Wis. 2d 679, 741 N.W.2d 774. The supporting papers show the Inn remained open to the general public in addition to
hosting the wedding reception for approximately 100 people. The reception purchased a half barrel of beer
and possibly an additional quarter barrel.
The beer was poured into pitchers that were placed on the bar and
reception guests took the pitchers to tables.
¶3 Kolstad was not a part of the wedding party. He arrived at the Inn,
intoxicated, at approximately 11:00 p.m.
There is no evidence that the Inn
served him additional beverages at that time.
When a wedding guest bumped into Kolstad, his friend, Kevin Katzbahn,
grabbed Fedie and threatened to snap the guest’s neck or shoot him if he bumped
into him again. Witnesses standing as
close as ten feet in the noisy and crowded bar could not hear specific threats
and there was no physical altercation. Approximately
one hour later, another verbal altercation involving wedding guests, Kolstad
and Katzbahn occurred in the same area.
Moments later, Kolstad, Katzbahn and thirty other people went into the
parking lot where the fight ensued.
After the Inn’s owner was informed of
the fight, he called 911 and told the participants that he had called the
police. The crowd immediately
disbursed.
¶4 The Kolstads argue the Inn
was negligent by breaching its duty to protect patrons from harm by not having
security personnel to prevent the assault.
A tavern keeper has a duty to protect patrons under certain
circumstances. See Weihert v. Piccione,
273 Wis.
448, 456, 78 N.W.2d 757 (1956). A tavern
is subject to liability to members of the public for intentional harmful acts
of third persons if the proprietor, by the exercise of reasonable care, could
have discovered that such acts were being done or were about to be done, and
could have protected the members of the public by controlling the conduct of
the third persons or by giving an adequate warning. Id. The Kolstads presented no evidence that the Inn’s personnel were aware or should have been aware of
the verbal altercations that preceded the fight. The absence of security does not constitute a
breach of the Inn’s duty to protect
patrons. Prior to that night, there had
never been any incidents at the Inn requiring
a police response. The Inn
had no reason to believe a wedding reception would result in a bar brawl. Once informed of the fight, the bartender
took reasonable steps to stop it by calling 911 and informing the participants
the police were called.
¶5 The Kolstads also fault the Inn
for serving intoxicated persons and underage persons. Under Wis.
Stat. § 125.035(2), the bar and its owner are immune from civil
liability arising out of the sale of alcohol beverages. An exception is made for sale to an underage
person. See Wis. Stat. § 125.035(4)(b). However, the Kolstads identify only one
underage participant in the fight, twenty-year-old Josh Frank, who testified he
may have had one beer. There is no
evidence that Frank was intoxicated or that his consumption of alcohol played
any role in the fight.
By the Court.—Judgment affirmed.
This
opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.