Lora Knight v. Elm King Enterprises, L.L.C., an Iowa Limited Liability Company, Michael J. King, Donna J. King, and Costa Dino King ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 15-2167
Filed November 9, 2016
LORA KNIGHT,
Plaintiff-Appellant,
vs.
ELM KING ENTERPRISES, L.L.C., an Iowa
Limited Liability Company, MICHAEL J. KING,
DONNA J. KING, and COSTA DINO KING,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Union County, Dustria A. Relph,
Judge.
Lora Knight appeals the district court’s order granting summary judgment.
AFFIRMED.
Douglas D. Daggett of Douglas D. Daggett, P.C., Creston, for appellant.
Jason W. Miller of Patterson Law Firm, L.L.P., Des Moines, for appellee.
Considered by Danilson, C.J., and Vaitheswaran and Tabor, JJ.
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VAITHESWARAN, Judge.
Lora Knight filed a personal injury action against Creston tavern Elm King
Enterprises, L.L.C. as well at its owners. She was assaulted by a bar patron and
alleged the tavern failed to exercise reasonable care in several respects. The
tavern moved for summary judgment. Knight did not resist the motion. Shortly
before the summary judgment hearing, Knight moved for an extension of time to
file a resistance and for a continuance. The district court denied her motion.
Following the hearing, the court granted the defendants’ summary judgment
motion, finding no duty and, alternatively, no breach of duty.
On appeal Knight contends the district court (1) abused its discretion in
denying her motion for an extension and continuance and (2) erred in granting
the defendants’ motion for summary judgment.
I. Motion for Extension and Continuance
“Any party resisting [a motion for summary judgment] shall file a
resistance within 15 days . . . from the time when a copy of the motion has been
served.” Iowa R. Civ. P. 1.981(3). Knight did not file a resistance within that time
frame or in the following month. She filed her motion for extension of time and
continuance two hours and four minutes before the hearing and failed to identify
any reasons in support of her request for additional time. We conclude the
district court did not abuse its discretion in denying the motion as untimely. See
Kulish v. Ellsworth, 566 N.W.2d 885, 889-90 (Iowa 1997).
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II. Summary Judgment
Summary judgment is appropriate where “there is no genuine issue as to
any material fact and . . . the moving party is entitled to a judgment as a matter of
law.” Iowa R. Civ. P. 1.981(3).
The district court found no “tavern-patron relationship” and, therefore, no
duty of care. The court alternatively stated that, even if “a tavern-patron
relationship did exist that imposed a duty on Defendants,” the assault was not
foreseeable—either to Knight or the tavern.
Knight argues the district court “narrowly construed” her relationship with
the tavern in finding it owed her no duty and the question of whether the tavern
breached a duty was “best suited for a trier of fact.” We need not address
whether a duty was owed to Knight because we are convinced that, even if the
tavern had a duty, Knight could not establish a breach as a matter of law.1
The question of breach turns on whether the tavern exercised reasonable
care. Hoyt, 829 N.W.2d at 777-78. “[T]he conduct of a defendant can lack
reasonable care insofar as it foreseeably combines with or permits the improper
conduct of the plaintiff or a third party.” Id. at 778 (quoting Restatement (Third) of
Torts § 19 (2010)). “In a tavern, for example, the environment may foreseeably
bring about the misconduct of a third party, resulting in injury to a plaintiff.” Id.
1
In the context of her discussion of a breach, Knight refers to “scope-of-liability.” The
tavern asserts Knight failed to preserve error on a scope-of-liability argument. We are
persuaded the reference appears in the context of her breach-of-duty argument. See
Hoyt v. Gutterz Bowl & Lounge L.L.C., 829 N.W.2d 772, 778 (Iowa 2013) (noting
foreseeability of misconduct “raises the issue of whether the harm suffered by the
plaintiff is within the range of risks that may make the defendant’s conduct negligent in
failing to exercise that care”).
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“[W]e leave the breach question’s foreseeability determination to juries unless no
reasonable person could differ on the matter.” Id. at 780.
No reasonable person could find it foreseeable that the tavern
environment brought about the assault. Knight went to the establishment to
order food. When she found out “they were not cooking food anymore,” she
“went straight to the bathroom.” As she left the bathroom, an unknown woman
“stopped [her] and asked to ‘talk to [her].’” According to Knight, the woman had
“no bad body language,” “smil[ed] at [her],” and was “very soft spoken.” Knight
“had no reason to feel threatened or anything.” The woman asked Knight to step
outside and proceeded to assault her “as soon as [they] got out the back door,”
believing Knight had “snitch[ed]” on someone else. Knight stated she “couldn’t
believe it happened” because she “didn’t even know” the woman. In a statement
to police, she stated, “I didn’t expect what was coming.”
The bartender working on the night of the incident attested she “saw no
altercation” between the two women, was “aware of no event that occurred within
Elm’s Club that demonstrated or foreshadowed that . . . Knight and [the other
woman] would be involved in a physical altercation,” and “had no reason to
believe such an event would take place.”
We conclude the risk of harm was unforeseeable as a matter of law and
the district court did not err in granting summary judgment in favor of the
defendants.
AFFIRMED.