Alan Elstun v. Saddle Club, LLC ( 2023 )

RENDERED: MARCH 3, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1424-MR
ALAN ELSTUN APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
v. HONORABLE GREGORY M. BARTLETT, JUDGE
ACTION NO. 20-CI-00886
SADDLE CLUB, LLC APPELLEE
OPINION
AFFIRMING
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BEFORE: CALDWELL, CETRULO, AND COMBS, JUDGES.
COMBS, JUDGE: We placed this case in abeyance pending the outcome of a
highly relevant case pending before the Supreme Court of Kentucky: Wal-Mart,
Inc. v. Reeves, ___ S.W.3d ___, 2023 WL 2033691 (Ky. Feb. 16, 2023). The
Walmart case has been decided, holding that Kentucky shall not expand the duty of
reasonable care in premises liability cases to impose liability on the part of
business owners for third parties’ criminal acts that were not reasonably
foreseeable. After our review of the Walmart case, we have taken our case out of
abeyance and revisited our opinion. We are satisfied that our holding comports
with the precedent just enunciated by our Supreme Court.
The case currently before us involves a claim of negligent security
resulting in an injury to a patron of a business. Alan Elstun (Appellant) appeals the
partial summary judgment of the Kenton Circuit Court entered in favor of Saddle
Club, LLC (Appellee). He argues that the circuit court erred by concluding that
Saddle Club had no duty to protect him from an assault perpetrated by a fellow
patron. Because Elstun failed to present evidence to indicate that Saddle Club
breached a duty to protect him from the criminal acts of another, we affirm.
Late in the evening of July 13, 2019, Elstun entered Saddle Club, a
small bar in Ft. Mitchell. He was accompanied by two friends, Michael Gregory
and Scott Lewin. Kenneth Hollenkamp arrived minutes later to join his girlfriend
who was seated near Elstun and his friends. Gregory testified in his deposition that
Hollenkamp seemed agitated when he arrived. Elstun testified that Hollenkamp
began what looked like a “heated discussion” with Lewin as soon as he saw Lewin
at the bar; however, Elstun did not overhear their conversation.
In his deposition, Hollenkamp explained that Lewin was very
intoxicated. After listening to Lewin call him names for several minutes,
Hollenkamp stood up and asked him, “What is your f-in problem?” He stated that
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the scene “took everybody’s attention.” According to Elstun, when Hollenkamp
stepped away from the bar to talk with his girlfriend, Lewin exited Saddle Club.
Elstun testified that Hollenkamp and his girlfriend then returned to the
bar, and she took a seat. Elstun indicated that Hollenkamp expressed his intention
to assault Lewin, asking where Lewin had gone. Elstun told Hollenkamp that he
thought Lewin was outside. He stated that Hollenkamp began a conversation with
a female patron standing nearby. Then Hollenkamp suddenly approached Elstun
and immediately struck him: “I just saw him start to come at me. . . .”
Hollenkamp punched Elstun twice. Gregory confirmed that “it was all pretty quick
right after that . . . all of a sudden, I could feel them scuffling behind me.” Gregory
explained that the bar was not loud and that the men had not shouted at each other.
He could not tell whether anyone else -- including the bartender who was standing
behind the bar -- overheard any interaction between them before the assault.
Gregory reiterated, “[i]t happened really fast.” He remembered that there were at
least two bartenders on duty.
Danielle Sheehan, a Saddle Club bartender working that evening,
testified in her deposition that she was trained to handle unruly and belligerent
patrons and that she was aware of Saddle Club’s “de-escalation processes,”
including ejection of any patron at her discretion. She indicated that the bar did
not hire bouncers on a regular basis given “the general nature of the clientele” and
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because “we don’t have the crowd capacity” to warrant that kind of assistance.
She felt comfortable calling the police if patrons become aggressive. Sheehan
testified that there was only a “small crowd” at the bar on this evening and that the
patrons “seemed like a happy-go-lucky group of people that were coming from a
party.” She did not hear any conversation between Elstun and Hollenkamp. She
indicated that by the time she realized that anyone had been assaulted, “they were
in the back parking lot.” She did not call police.
Allison Halpin was also working as a bartender at Saddle Club on that
evening. Halpin testified that she, too, was familiar with the bar’s policies and
procedures concerning unruly patrons. She indicated that although the bar was
typically staffed with just two female bartenders, she never felt unsafe there.
Halpin explained that she became aware of a commotion that night only when she
saw a group of people “pulling each other off of other people.” She explained that
“it kind of dispersed very quickly.” She indicated that no interaction among the
patrons before that moment had given her any cause for concern. She explained
that she had been “[r]ight across the bar” from “the commotion” and had not
noticed any aggressive behavior before the assault.
On June 30, 2020, Elstun filed a complaint against Hollenkamp and
Saddle Club. He alleged that Saddle Club failed to provide adequate security to
protect his wellbeing. Following a period of discovery, Saddle Club filed a motion
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for partial summary judgment. It argued that Elstun could not establish a prima
facie case of negligence against Saddle Club because Hollenkamp’s conduct was
not reasonably foreseeable. In response, Elstun argued that genuine issues of
material fact existed regarding the foreseeability of the assault. He contended that
Saddle Club’s breach of its duty to protect him caused him to suffer serious and
lasting physical injury.
In an order entered October 29, 2021, the circuit court granted Saddle
Club’s motion for partial summary judgment. It concluded that Hollenkamp’s
assault of Elstun “was not foreseeable, and thus the Saddle Club had no duty to
prevent that occurrence.” Elstun’s motion to alter, amend, or vacate was denied.
This appeal followed.
Summary judgment is properly granted where “the pleadings,
depositions, answers to interrogatories, stipulations, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” CR1 56.03. Because summary judgment involves only questions of law and
not the resolution of disputed material facts, we do not defer to the trial court’s
decision. Goldsmith v. Allied Building Components, Inc., 833 S.W.2d 378 (Ky.
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Kentucky Rules of Civil Procedure.
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1992). Instead, we review the decision de novo. Cumberland Valley Contrs., Inc.
v. Bell County Coal Corp., 238 S.W.3d 644 (Ky. 2007).
On appeal, Elstun contends that the trial court erred by concluding as
a matter of law that Saddle Club owed no duty of care to Elstun because the assault
perpetrated against him was not foreseeable. He argues that genuine issues of
material fact exist regarding the foreseeability of his injuries sufficient to preclude
summary judgment. Saddle Club argues that it was entitled to summary judgment
because Elstun presented no evidence to indicate that Hollenkamp’s criminal
assault was foreseeable.
To recover under a claim of negligence, a plaintiff must establish that
the defendant owed a duty of care to him; that the defendant breached that duty of
care; and that the breach proximately caused the plaintiff’s damages. Lee v.
Farmer’s Rural Elec. Coop. Corp., 245 S.W.3d 209 (Ky. App. 2007) (citations
omitted). A business owner has a duty to its patrons to exercise reasonable care to
protect them; it breaches that duty where it fails to protect them from the
reasonably foreseeable criminal acts of fellow patrons. Napper v. Kenwood Drive-
In Theatre Co., 310 S.W.2d 270 (Ky. 1958); Murphy v. Second Street Corp., 48
S.W.3d 571 (Ky. App. 2001). Whether the defendant breached its duty of
reasonable care is generally a question of fact for a jury. See Sidebottom v.
Aubrey, 267 Ky. 45, 101 S.W.2d 212 (1937). However, where the risk of danger is
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clearly unforeseeable and reasonable people could not differ as to the extent of the
foreseeable risk at the time of the alleged negligence, the court is authorized to
grant summary judgment. Shelton v. Kentucky Easter Seals Society, Inc., 413
S.W.3d 901 (Ky. 2013).
Because he was a patron of the bar, Saddle Club had a duty to protect
Elstun from foreseeable criminal activity. And, although foreseeability is
ordinarily a fact-intensive issue, there is no question in this case that the criminal
assault perpetrated by Hollenkamp was not foreseeable.
The undisputed evidence of record presented to the trial court
indicated that Saddle Club was neither loud nor over-crowded. No evidence
indicated that Hollenkamp had been overserved by Saddle Club’s bartenders, nor
was he known to them to be violent. Furthermore, no evidence indicated that any
employee was aware -- or should have been aware -- of an aggressive interaction
between Hollenkamp and Elstun before Elstun was struck. In summary, nothing
about Hollenkamp’s conduct during the few minutes that he was in the bar would
have led a reasonably prudent person to believe that he might injure another
patron. Instead, the evidence indicated that no one had reason to believe that
Hollenkamp would or was about to assault Elstun.
The court correctly found that there was no evidence to indicate that
Saddle Club breached its duty of care by failing to protect Elstun from the
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reasonably foreseeable criminal acts of a fellow patron. In the absence of any
genuine issue of material fact, the trial court did not err by concluding that Saddle
Club was entitled to a judgment as a matter of law.
Therefore, we affirm.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
W. Kash Stilz, Jr. Gerald R. Toner
Covington, Kentucky Louisville, Kentucky
Caroline K. Bruenderman
Louisville, Kentucky
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