Trial Judge: criminal attack outside bar not foreseeable. The Illinois Appellate Court: not so fast.... - Mark P. Loftus

The First Appellate District of Illinois handed down a decision last week speaking to the duty of a bar when a patron becomes unruly, gets ejected and then hurts another patron outside the bar. Defense firms are quick to seek dismissal of these cases arguing that the bar had no reason to anticipate the attack(in legal speak, it was not “foreseeable”). The decision in Fox v. Food & Drink Chicago is instructive, well written and provides a roadmap to trial lawyers on what facts to focus on when fighting dismissal motions.

As is often the case in late night/early morning bar fight scenarios, the background facts are somewhat convoluted and contested. The plaintiff, Shaconta Fox(“Fox”) was a patron at the Drinkhaus bar in the late evening and early morning hours of October 26 and 27, 2020. Fox was accompanied by several friends and relatives including her brother Mack Curtis (“Curtis”) and Curtis’ then girlfriend Sharina DuPleiss. At some point in the evening, DuPleiss saw Michael Ogundeyi, the husband of one of her friends, Damora Harris. DuPleiss believed that Ogundeyi was flirting with another woman. DuPleiss contacted Harris via phone and relayed what she had observed.

Twenty minutes later, around 1 am, there was some sort of fracas in the bar area which necessitated the involvement of Drinkhaus security. While unclear at the moment, the parties later learned that Harris had come to the bar shortly after hearing from DuPleiss. Harris then angrily confronted her husband – Ogundeyi. The confrontation between Ogundeyi and Harris had been sufficiently heated that security escorted both of them out of the bar. Ogundeyi was then allowed to continue hanging around the exit for 45 minutes after being escorted out.

Around 1:40 am, Drinkhaus security, preparing for closing, began directing patrons out of the bar. There was only one exit and all patrons were directed toward that exit. As Fox was leaving she noticed DuPleiss in an animated discussion with Ogundeyi. DuPleiss testified that as she was leaving she was stopped by Ogundeyi who was yelling at her and putting his hands in her face. DuPleiss was concerned that Ogundeyi and his associates might harm her and she asked nearby Drinkhaus personnel for help. Unfortunately Drinkhaus security did nothing. DuPleiss then called out to Curtis for help. Fox testified she saw Ogundeyi raise his hand toward DuPleiss and Curtis jumped in to defend DuPleiss. Curtis testified Ogundeyi had a vice grip on DuPleiss’ arm. As Curtis attempted to intervene, several of Ogundeyi’s friends jumped in and began punching Curtis.

Fox and her sister, Daja, ran over to help their brother. Plaintiff testified she saw Ogundeyi punch her sister. As Fox attempted to get her sister out of harms way, Ogundeyi punched Fox in the left eye. Drinkhaus security, who had been close by during the entire altercation, never attempted to intervene and never called the police. After the fight, Ogundeyi and several others jumped in his car and drove away.

Ogundeyi, a black belt, testified he was knocked out during the melee and immediately left the scene after he regained consciousness. He further testified he never touched anyone. Ogundeyi further testified it was his understanding that one of his friends – “Pablo” – had struck Fox. Ogundeyi did not know Pablo’s last name or where he lived. He did however, know that Pablo had left the country.

As a result of the punch, Fox suffered partial blindness in her eye. Fox filed suit against the bar.

Drinkhaus moved for summary judgement, arguing that it had no duty to protect Fox from a criminal act of a third party as that act was not reasonably foreseeable. The trial judge ruled that as Fox was not involved in the first incident inside the bar, and then intentionally inserted herself into the fight outside the bar, foreseeability could not be established. The trial judge tossed the case.

Fox appealed. Thankfully.

The appellate court opinion is a thorough analysis of what liability a bar may face when patrons are injured outside the bar. First the Court noted that generally, Illinois courts do not impose a duty to protect others from the criminal acts of third parties unless: 1) a special relationship exists between the parties and 2) the criminal act was reasonably foreseeable. The opinion went on to note that a special relationship does exist between a business owner and a patron of that business. And, while the duty to protect a patron normally ends when that patron departs the premises, there are circumstances where that duty to protect a patron exists beyond the doorway of the bar.

The Court then noted that a criminal attack by a third party is foreseeable when the circumstances would put a reasonable person on notice of the attack, or when an altercation has already begun. The evidence and testimony made clear that that multiple altercations had already taken place before Fox was injured. First, Ogunjeyi and his wife had a heated conversation in the bar leading to Ogunjeyi being escorted outside by staff. After that, there was testimony that Ogunjeyi and his friends were involved in additional altercations before Fox was injured. In light of that activity, the appellate court determined that the trial judge’s determination that the attack was not foreseeable was not warranted.

The Appellate Court then took issue with the trial judge’s focus on 1) plaintiff not being involved in any altercation inside the bar and 2) plaintiff involving herself in the fight outside the bar. The Appellate Court correctly noted Fox was not precluded from recovery even if she was not involved in the altercation inside. The Court cited to earlier appellate decisions that made it clear a victim of an attack could still recover even if the victim was not involved in an earlier altercation leading to her attacker being ejected from the bar. Importantly, the court also noted that while Fox was not involved in the initial altercation, Drinkhaus staff knew that a person in plaintiff’s group was connected to the altercation(i.e. DuPleiss making the phone call to Harris). Additionally, the Appellate Court noted that Drinkhaus staff knew that Ogunjeyi might be angry with DuPleiss and members of her party. And Drinkhaus staff knew that that Ogunjeyi had lingered outside the club long after being ejected.

The Appellate Court also addressed the trial judge’s focus on Fox intentionally inserting herself into the melee outside the club. The Appellate Court opinion correctly noted that Fox’s decision-making prior to her injury was not a proper consideration in deciding if the attack was reasonably foreseeable.

The Appellate Court reversed the decision of the trial judge and sent the matter back to the trial level for further proceedings.