Nature of the Case
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Facts
D is a bowling alley and tavern. P and several members of his construction crew finished work and went to D for refreshments. Curtis Knapp was also a customer at D that afternoon. P soon came to believe that Knapp was scowling at him. P and Knapp had formerly been friendly, but tension had arisen between them as a result of P's alleged mistreatment of the sister of Knapp's friend. The record reveals no evidence tending to prove the staff of Gutterz had any knowledge of this history between D and Knapp. After consuming a few beers, d and coworker Chris Brittain approached and verbally confronted Knapp. Knapp did not respond and continued to scowl at P. The waitress serving P and Brittain observed their behavior with concern and threatened to discontinue serving them unless they calmed down. P and Brittain ignored the warning and the waitress requested and secured permission from D's owner, Rodney Atkinson, to discontinue serving them. P and Brittain complained to Atkinson that they were no longer being served and continued to taunt Knapp. Atkinson requested that P and Brittain leave. As Hoyt walked through the parking lot toward his vehicle, somebody approached him from behind and struck him in the back of the head, knocking him unconscious. P suffered several injuries including a compound fracture of his ankle. Knapp admitted to police who later arrived on the scene that he had struck P but claimed he had done so in self-defense. P filed this action alleging that Knapp and D were liable for the injuries. D moved for summary judgment, alleging it owed P no duty of reasonable care, there was no evidence of a breach of any duty, and the assault by Knapp and P's injury were not foreseeable. The court granted D's motion and dismissed D. The court found as a matter of law that the assault in the parking lot and P's resulting injury were not foreseeable to D. It also found that D's employees did not fail to exercise reasonable care to discover the likelihood of harm or fail to provide an adequate warning after discovering a potential danger to P. P appealed. The court of appeals reversed adopting section 7 of the Restatement (Third) of Torts: Liability for Physical and Emotional Harm and explained that 'the assessment of the foreseeability of a risk' is no longer part of the duty analysis in evaluating a tort claim, and instead is to be considered when the fact finder decides whether a defendant has failed to exercise reasonable care. The court of appeals applied section 40 of the Restatement (Third), entitled 'Duty Based on Special Relationship With Another.' It found that D owed P a duty under section 40 and P had raised fact questions as to foreseeability related to the issues of breach of duty and scope of liability. D appealed.
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