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Shimkowiak v. Yucatan at the Landing9/16/2005
AFFIRMING
BEFORE: COMBS, CHIEF JUDGE; HENRY AND TACKETT, JUDGES.
Heather Shimkowiak appeals from the entry of summary judgment in favor of appellee Yucatan at the Landing, Ltd., d/b/a Yucatan Liquor Stand (Yucatan), in this action for injuries received in an altercation outside the business between parties who had been drinking there. Shimkowiak's theory of liability was based on the statutory obligation of a seller of alcohol not to continue to serve an intoxicated person, found in Kentucky Revised Statute (KRS) 244.080. The circuit court held that no liability attached under the statute because it was not foreseeable to Yucatan that Todd Guy, the other person involved in the altercation, and who remains a defendant, would be involved in a fight with appellant. We affirm, holding the case of Isaacs v. Smith, 5 S.W.3d 500 (Ky. 1999) to be controlling.
The altercation occurred after closing time at the Yucatan Liquor Stand in Covington, in a parking garage owned by the City of Covington. The City is not a party to this action. The City is also the successor in interest to Covington Landing Limited Partnership, which was the original landlord for Yucatan, and the lease between them provided that the landlord reserved the right to maintain and police the common areas, including the parking lots.
The conflict grew out of an apparent incident between a companion of defendant Todd Guy and another patron inside the bar. Guy testified that he never saw the plaintiff inside the bar. Guy further said the he was not part of the original argument, but that his friend, Joe, came back from the bathroom and told Guy that he might want to watch his back. Guy also said that "an hour or two" went by before the fight, and that nothing came out of it in the bar itself. Guy and another friend, Dean, left the bar and went to Joe's car without Joe, whom they had lost along the way. A small group of people, two men and one woman, were waiting outside, and one of the men had his shirt off and came at Guy "with his dukes up." Guy said that the woman in the group started hitting him in the back of the head, so he hit her in return, and then he saw four other people, including the plaintiff, coming at him, and he hit the first person to reach him, who was the plaintiff, and was "loading up for the other three" when they stopped coming, and he took the chance to run away. Guy admitted that he was drunk at the time, since he was not intending to drive, and that he did not remember many details about the faces of the people involved.
The plaintiff advanced multiple theories of how Yucatan could be liable for this incident. First, the plaintiff argued that a number of incidents of violence between patrons had occurred at or near the bar in the months prior to the incident in the subject case. Therefore, plaintiff argued, the bar should have been on notice that violence between its patrons was foreseeable and that it should have taken greater care not to serve already intoxicated patrons. Next, the plaintiff argued that the bar was on notice that it was foreseeable that a fight would erupt between these particular groups of patrons, based on the events inside the bar and the history of violence between patrons. Lastly, Yucatan was alleged to have a "universal duty" to protect patrons from injury inflicted by other patrons. The circuit court rejected these theories and entered partial summary judgment in favor of Yucatan, leaving only the action against Guy himself. This appeal followed.
On appeal, Shimkowiak advances these same theories, claiming that the circuit court erred in granting summary judgment. The circuit court's holding essentially states that there i
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