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Shimkowiak v. Yucatan at the Landing9/16/2005
s no theory under which Yucatan may be held liable for the incident. The circuit court, on review, was quite correct.
The controlling case is Isaacs, supra. In that case, an argument between two patrons at a Lexington bar resulted in one patron's shooting the other in the bar later that evening. In discussing the fact that the bar continued to serve alcohol to the man who would later shoot the plaintiff, the Kentucky Supreme Court stated that "the issue here is simply whether . . . it was foreseeable that Isaacs, given his intoxicated condition, could cause injury to a third party as a result of [the bar's] . . . continuing to sell him liquor, such as would render the establishment liable to the victim under KRS 244.080. We hold that it does not." Id. at 502. In explaining its holding, the Court said that an injury by shooting was not a natural or probable consequence of the sale of liquor. Even though every person owes every other person a duty to exercise ordinary care to prevent foreseeable injury, such a duty only applies if the injury is foreseeable. The Court explained that it was not foreseeable that a violation of KRS 244.080 would result in an intoxicated patron shooting a third person on the premises of the establishment. The Court went on to say that although the bar did violate the statute by serving an already intoxicated Isaacs, the establishment could not have anticipated what happened, and distinguished the incidence of violence (a volitional act with the specific intent of harming someone) from the act of driving while intoxicated. The assault by Isaacs against Smith was an intervening act, and selling liquor to an already intoxicated Isaacs was not a foreseeable cause of the injury.
This situation is no different, and none of plaintiff's theories avail her. Isaacs is squarely on point and controlling, and clearly the injury to plaintiff was no more foreseeable than Isaacs shooting Smith. The history of incidents at this particular establishment does not change the analysis; there is nothing special about this particular bar or its patrons that makes any individual incident of violence more or less likely. Causation is, if anything, even more attenuated than the situation in Isaacs; here, there was no prior contact between plaintiff and defendant at all, and no particular reason why plaintiff would be at some risk of assault by the defendant due to anything that happened in the bar. In Isaacs, by contrast, the patrons had argued, security had intervened but did not throw either man out, and later Isaacs's friend distracted Smith while Isaacs pulled out a concealed handgun and shot him in the back. If it were not foreseeable that continuing to serve Isaacs alcohol would result in violence between Isaacs and Smith, then it was certainly not foreseeable that a person who had not himself been involved in an incident inside the bar would assault another person who also had not been involved in the same incident inside the bar.
For the foregoing reasons, the judgment of the Kenton Circuit Court is affirmed.
ALL CONCUR.
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