Nature of the Case
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Facts
P and her friend, Theresa attended a Kansas City Royals baseball game. They left the ballgame and on the way home, stopped at a local bar. After about half an hour, they left the bar and drove to D. They arrived at the restaurant at approximately 11:30 p.m. There were six people in the restaurant, two at the counter, and the rest seated in a booth. Later, all six sat together in the booth. After ordering their food, P and Holmberg sat down in a booth across from the group. Karen Brown was one of the individuals in that group. Brown and her companions began engaging in loud, crude, and vulgar conversation, designed to be overheard and to shock P and Holmberg. P nor Holmberg made any comments. At one point, a D employee told the group to quiet down, but the conversation grew louder. The group got up to leave and prior to reaching the exit, Brown stopped and said, 'Those two white bitches over there think they're hot shit.' P was shocked and asked, 'Are you talking to us?' When Brown responded, 'Yes,' O requested her to 'please come over here and repeat yourself.' Brown suddenly dashed to P's booth and struck her in the face with a clenched fist, knocking her sideways and bruising her face and nose. P called Brown a 'nigger.' Brown then began hitting P with her fists with renewed effort. This beating continued for about thirty seconds until Holmberg intervened by moving between P and Brown. She told Brown, 'We don't want any trouble.' P and Holmberg began moving toward the door but Brown kept saying 'Come on, hit me, bitch. Come on, I want to fight.' P and Holmberg continued to insist they did not want to fight, but when they reached the door of the restaurant Brown began beating on P again. She struck P four or five times before they moved outside the restaurant. Mark Wills, the assistant manager at the restaurant, watched the altercation and did not try to stop Brown because he did not want to get involved and for fear Brown would strike him for interfering. He did not call the police. Wills did tell Brown, 'Why don't you just leave? You did this two weeks before in here.' P and Holmberg moved toward their car in the parking lot. Wills and another Taco Bell employee followed the group outside. Brown attacked Holmberg, shoving her against the brick wall of the restaurant and hitting and kicking her. Holmberg screamed for someone to call the police. The Taco Bell employees did not respond. Holmberg was able to break away and ran inside to the food counter and asked Wills (who had followed her back inside) if she could use the phone to call the police. Wills advised her the phone was not for public use. Holmberg threatened to jump over the counter and use the phone. Wills finally reluctantly called the police. While Holmberg was inside, Brown again attacked P, striking her three or four times on the upper part of her body. Holmberg returned to the parking lot and said that the police were on the way. Brown and her companions got in their car and left. P sued D. The jury found P 49% at fault and Taco Bell 51% at fault. They awarded Gould $ 500 in actual damages and $ 10,000 in punitive damages. D appealed.
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