No. 27007-2-II.The Court of Appeals of Washington, Division Two.
Filed: August 16, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Pierce County, No. 98-2-07082-5, Hon. Sergio Armijo, February 9, 2001, Judgment or order under review.
Counsel for Appellant(s), Komron M. Allahyari, Attorney At Law, 1001 4th Ave Fl 32, Seattle, WA 98154.
Counsel for Respondent(s), Jay D. O’Sullivan, O’Sullivan Blotch, 400 Mercer St. Ste 301, Seattle, WA 98109.
Steven Goldstein, Betts Patterson Mines PS, 701 Pike St. Ste 1400, Seattle, WA 98101-3927.
ELAINE M. HOUGHTON, J.
Thomas and Leann[1] Reina[2] appeal a trial court summary judgment order dismissing their personal injury claims against Dong Wan Kim and Kwi Sim Kim, the owners of a bar in which the Reinas claim they were injured while being ejected during a fight.
We affirm in part, reverse in part, and remand for further proceedings.
FACTS
Before October 31, 1997, Thomas was a partially disabled 34-year-old man.
In the early 1980’s, Thomas had been in an auto accident and suffered a severe injury to his right shoulder. The accident tore nerves away from his spinal column, resulting in almost complete paralysis of his right arm, wrist, and hand. Although Thomas had received extensive treatment, including surgical tendon transplants, he had only limited use of his right arm, wrist, and hand.
On the evening of October 31, the Reinas were involved in a bar fight at the Kims’ restaurant, Little Tokyo III.[3] They arrived at Little Tokyo III to pick up some friends and family. Thomas sat at a table. According to Thomas, when someone spilled a drink, he jumped up to avoid getting wet and two other men stood up and began to strike each another. Dong Wan Kim responded to the commotion by coming from behind the bar and telling Thomas to leave. Thomas testified that three men grabbed him and took him to the door. One of the men grabbed Thomas’s right arm and twisted it. Thomas believed the man who grabbed his arm was the bar’s bouncer. Thomas asked him not to do this, explaining that his right arm had been previously hurt. Thomas was then thrown to the ground and kicked in the head as other people landed on top of him. The Reinas’ sister-in-law pulled people off Thomas, and they eventually were able to leave the bar. Kim confirmed that he asked for help to eject Thomas from the bar. A man named Richard asked Kim if he needed help ejecting Thomas. A bartender, Kelly High, testified via deposition that the men who helped Kim eject Thomas were regular customers who routinely broke up fights and ejected rowdy customers. High characterized the men as `bikers.’ III Clerk’s Papers (CP) at 422.
One of Kim’s employees, Jesse Reddington, testified via deposition that he and three other men named Mike, Rick, and Richard escorted Thomas to the door. The men struggled and Thomas landed on the floor. Rick restrained Thomas on the floor in a headlock until he calmed down.
Another employee, Matthew Knapp, testified via deposition that Kim stood and watched the fight. Knapp testified that he helped pull Thomas off the floor.
A former employee, Martin Plumb, submitted a declaration[4] in which he stated that while he worked at Little Tokyo III, “bikers’ were allowed and encouraged by . . . Kim to eject patrons from the establishment.’ III CP at 427. Plumb stated that he once saw one of the bikers eject a patron by throwing him through a plate glass window. He also contended that the bikers were usually obviously intoxicated and probably under the influence of drugs. Plumb does not, however, state that he was at Little Tokyo III on the night of Thomas’s alleged injury. After they left Little Tokyo III, Thomas and Leann went home. They later went to the emergency room. Thomas claims that his prior shoulder injury was substantially aggravated by the incident at Little Tokyo III. Leann did not remember being hit, but the next morning she had several bruises along the right side of her face.
On May 18, 1998, the Reinas filed a complaint seeking damages for personal injury. They asserted that Kim was negligent in not preventing their injuries.
The Kims moved for summary judgment. The Reinas also filed a motion to prevent the Kims from relitigating facts regarding Thomas’s injuries based on collateral estoppel because a Social Security Administration administrative law judge (ALJ) had already decided them.
In their motion, the Kims argued that the Reinas failed to offer any competent evidence that Kim should have known that the patrons of his bar were obviously intoxicated and that they would cause the Reinas harm. The Kims also argued that the Reinas did not offer any competent evidence to show that Thomas suffered any additional damage to his arm as a result of the incident at Little Tokyo III.
Both parties submitted extensive discovery, including medical records and expert depositions in support of and in opposition to the summary judgment motion. To support their defense of no additional injury, the Kims offered a letter from Dr. Allan Bach to Dr. Irfan Ansari. Dr. Bach had treated Thomas since 1986 and had performed tendon transfers on him to improve Thomas’s hand function. Dr. Ansari has treated Thomas since the incident at Little Tokyo III in October 1997. Dr. Bach stated in this letter that Thomas had developed `some ability to open and close his hand’ before the Little Tokyo III incident on October 31. II CP at 267. When Dr. Bach examined Thomas on April 21, 1998, he noted that Thomas had additional problems letting his wrist drop into a flexed position but that `[h]e is able to flex his fingers and thumb as he did when I saw him several years ago and the differences there are fairly minimal. Elbow range of motion is essentially the same as when I saw him several years ago. I have recorded in my chart that his ulnar nerve distribution sensation was poor on previous visits.’ II CP at 267.
The Kims also submitted a deposition of Dr. Ansari. In this deposition, Dr. Ansari testified that he relied on Thomas exclusively for his medical history and that he had not read Dr. Bach’s record. Dr. Ansari concluded that if the information Thomas gave him was wrong and that Thomas did not have a functional grip with his right hand prior to the Little Tokyo III incident, Dr. Ansari’s initial evaluation was probably wrong.
In their response to the summary judgment motion, the Reinas submitted additional evidence to support their claim that Thomas’s injuries had worsened since the Little Tokyo III incident. Although the parties argued both the issues of duty and aggravated injury, the court apparently focused on the aggravated injury. The superior court concluded that Dr. Ansari was unreliable when he said that the Little Tokyo III incident caused Thomas’s injuries because Dr. Ansari relied only on Thomas’s account of his medical history, not on prior medical reports. When counsel for the Reinas argued that this was an issue of material fact for a jury, the court replied, `[i]t’s . . . a medical conclusion as to what the extent of the injury is, not for a layperson out there to say well, it’s X amount.’ Report of Proceedings (RP) at 37.
The trial court indicated that because Dr. Ansari stated in his deposition that he was not aware of the extent of Thomas’s prior injuries, there was no issue of material fact. In its oral ruling, the superior court indicated that the basis for its ruling was a lack of evidence of aggravated injury:
The Court has read all the material, including the 56 pages of the deposition of Dr. Ansari, and the Court finds that there’s no merit to the case. There’s no proper evidence dealing with the medical injury or aggravation of the injury. Everything is preexisting, from what I’ve read, from what I’ve heard. And the Court just is not satisfied that this matter should go to trial. Summary judgment granted.
RP at 51.
The trial court also denied the Reinas’ collateral estoppel motion. Then, although the Kims had moved to dismiss only Thomas’s claims, the Reinas’ counsel asked to add Leann’s name to the order of dismissal for the sake of finality under CR 54. The Kims agreed that the liability issue toward her would be identical.
The Reinas timely filed this appeal on February 12, 2001. Then, on February 13, the Reinas filed a pleading entitled, `Second Supplemental Response to Defendants Kims’ Motion for Summary Judgment On All Claims of Thomas A. Reina,’ to which was attached a declaration of Dr. Ansari. CP at 1114. The superior court’s February 9, 2001 order dismissing all claims does not list this declaration. Apparently, the superior court denied the Reinas’ request to supplement the record with Dr. Ansari’s declaration on September 28, 2001. Motions before this Court The Kims filed a motion to strike the declaration of Dr. Ansari and all references to it in the Reinas’ appellate brief. Our commissioner granted the motion because the court’s CR 56 order did not list Dr. Ansari’s declaration.
Then, on December 4, 2001, the Reinas filed a motion to supplement the record on appeal with Dr. Ansari’s declaration. Another commissioner denied the motion because the declaration was `relevant only to the trial court’s September 28, 2001 decision which has not been appealed.’ Commissioner’s ruling. The Reinas did not move to modify the commissioner’s ruling. See generally RAP 17.7. Thus, the record before us does not include Dr. Ansari’s post-deposition declaration.
ANALYSIS
Standard of Review
We review summary judgment orders by engaging in the same inquiry as the trial court. Milligan v. Thompson, 90 Wn. App. 586, 593, 953 P.2d 112 (1998) (citing Failor’s Pharmacy v. Dep’t of Social
Health Serv., 125 Wn.2d 488, 493, 886 P.2d 147 (1994)). Summary judgment is proper when the moving party is entitled to judgment as a matter of law and there are no issues of material fact. CR 56(c). We consider the evidence in the light most favorable the nonmoving party, and we review questions of law de novo. Milligan, 90 Wn. App. at 593. Summary judgment can be granted only if reasonable persons could reach but one conclusion after examining all the evidence. Christen v. Lee, 113 Wn.2d 479, 488, 780 P.2d 1307 (1989).
Negligence
Negligence requires a finding of duty, breach, cause in fact, proximate cause, and injury. Here, in order to survive summary judgment, the Reinas needed to produce evidence that, if believed, would establish that (1) Kim had a duty toward the Reinas, (2) Kim breached that duty, (3) the Reinas were injured, and (4) the breach caused the Reinas’ injuries. See Christen, 113 Wn.2d at 488.
The determinative issues here are (1) whether Kim had and breached a duty of care toward the Reinas and (2) whether the Reinas suffered any injury as a result of the events at Little Tokyo III.
Duty Breach
The Reinas contend that Kim has a duty as an owner of a drinking establishment to protect his patrons from foreseeable harm. The Reinas further argue that it is reasonably foreseeable that harm might come to a patron at the hands of other regular patrons who are allowed to act as bouncers after being served alcohol by the drinking establishment.
The Kims counter that in order to establish liability, the Reinas must show both that (1) the patrons were obviously intoxicated, and (2) the drinking establishment had notice of the possibility of harm resulting from over service of alcohol.
Although both the Reinas and the Kims cite to Christen, they confuse the two separate theories of liability for owners of drinking establishments found in that case. See generally Christen, 113 Wn.2d 479. Under the first theory, a drinking establishment owner may be liable to a patron for an assault by another patron if the drinking establishment (1) furnished liquor to the assailant when the assailant was obviously intoxicated, and (2) the injury was foreseeable because the drinking establishment had some notice of the possibility of harm from prior actions of the assailant. Christen, 113 Wn.2d at 491. Therefore, the assailant’s level of intoxication is at issue under this first theory. Christen, 113 Wn.2d at 487. But under a second separate theory, the `premises theory,’ set forth in this case, the level of intoxication of patrons is not at issue. See Christen, 113 Wn.2d at 504-09. The owner of a drinking establishment simply has a duty to supervise the premises. Christen, 113 Wn.2d at 505.
The owner has a duty to exercise reasonable care to protect its patrons from harm at the hands of other patrons, if the harm is reasonably foreseeable. Christen, 113 Wn.2d at 505. For example, the owner of an establishment breaches this duty if it fails to intervene in a reasonably foreseeable criminal assault as soon as reasonably possible. Christen, 113 Wn.2d at 504-05.
A criminal assault is reasonably foreseeable, for example, when the drinking establishment does not eject a patron whose prior actions provided notice of possible harm. Christen, 113 Wn.2d at 505. If owners of the drinking establishment knew or should have known a fight was ensuing in time to have stopped the fight, but did not stop it, they may be liable for injuries to patrons. Christen, 113 Wn.2d at 506 (citing Miller v. Staton, 58 Wn.2d 879, 883, 365 P.2d 333 (1961)). For example, a drinking establishment was liable when there was evidence that a bouncer allowed the assailant to approach the plaintiff in a tense situation without intervening. Manzanares v. Playhouse Corp., 25 Wn. App. 905, 908-09, 611 P.2d 797 (1980). Here, Kim either asked or allowed patrons, employees, or both to forcibly eject Thomas from the bar while Kim watched. Regardless of whether the men who ejected Thomas were employees or loyal customers, witnesses indicate that Kim stood by and watched the fight. Plumb’s statement that he had seen the `bikers’ throw a man through a plate glass window in the past is also relevant to whether the harm was foreseeable because it indicates that Kim might have been on notice that the men’s prior actions while ejecting patrons presented a risk of serious harm.
The Reinas presented sufficient evidence to survive summary judgment under the premises theory. They brought evidence showing that Kim not only failed to protect the Reinas from a developing assault, but also he may have directed the events that led to the assault. Viewed in the light most favorable to the Reinas, the alleged harm Thomas suffered was foreseeable.
Because the Reinas adequately established issues of material fact regarding the Kims’ duty and breach, a fact finder could reasonably decide that the Kims’ breached their duty of care toward the Reinas. Thus, the Reinas’ claims should not have been dismissed on this basis.
Injury
The Reinas next argue that a genuine issue of material fact exists regarding the nature and extent of Thomas’s injuries. On review of summary judgment, we determine only whether the Reinas have produced enough evidence that a reasonable fact finder could, but not necessarily would, decide in their favor. See Christen, 113 Wn.2d at 487. Determining the credibility of witnesses should be left to the fact finder. Stiley v. Block, 130 Wn.2d 486, 502, 925 P.2d 194 (1996). Summary judgment can be granted only if, after examining all the evidence, reasonable persons could reach only one conclusion. Christian, 113 Wn.2d at 488.[5] The parties place certain evidence at the center of this issue, including (1) a letter and deposition testimony from Dr. Bach indicating that Reina’s injury was not necessarily aggravated by the October 31, 1997 incident at Little Tokyo III and (2) Dr. Ansari’s deposition testimony. Dr. Bach treated Thomas before the Little Tokyo III incident and examined him afterward. Dr. Ansari opined that the incident aggravated Thomas’s prior injuries. But, the Kims argue, they were able to cast doubt on Dr. Ansari’s conclusions in his deposition.
The parties’ and the court’s focus on the nature and extent of Thomas’s injuries misses the point. Both Thomas and Leann at least suffered initial injuries that preclude summary judgment. Leann testified to having several bruises `all along my right side on my face.’ III CP at 414-15. No one disputes her claim. And Thomas testified that he went to an emergency room for treatment on November 1, 1997. There, Dr. Clark Waffle diagnosed a facial contusion, closed head injury, right upper extremity injury, and facial abrasion. He recommended rest, application of ice, then heat.
Finally, he prescribed Tylenol #3.
Although a trier of fact may later find that these injuries are minimal, this evidence alone is sufficient for the Reinas’ claims to survive summary judgment.[6]
Collateral Estoppel
Finally, the Reinas argue that the Kims were precluded from relitigating the extent and nature of Thomas’s damages under the doctrine of collateral estoppel because a Social Security Administration administrative law judge (ALJ) had previously decided that the Little Tokyo III incident substantially aggravated Thomas’s injuries.
The doctrine of collateral estoppel is designed to prevent relitigation of an issue after the party estopped has had a full opportunity to present its argument on an issue. Hanson v. City of Snohomish, 121 Wn.2d 552, 561, 852 P.2d 295 (1993).
A Social Security Administration ruling can have a collateral estoppel effect on a later tort action, but the party asserting collateral estoppel must satisfy the standard four-part test. See Stevens v City of Centralia, 86 Wn. App. 145, 155, 936 P.2d 1141 (1997). The moving party must show all four of the following elements: (1) the issue in both actions is identical; (2) the prior adjudication ended in a final judgment on the merits; (3) the party against whom the doctrine is asserted was a party or was in privity with a party to the prior action; and (4) the application of the doctrine does not work an injustice. McDaniels v. Carlson, 108 Wn.2d 299, 303, 738 P.2d 254 (1987); Robinson v. Hamed, 62 Wn. App. 92, 98-99, 813 P.2d 171, review denied, 118 Wn.2d 1002 (1991). We first turn to the third element, privity. The Kims were not a party, nor in privity to a party, to the Social Security Administration hearing. Nevertheless, the Reinas argue that an exception to the privity rule exists when the nonparty against whom collateral estoppel is asserted has notice of the proceeding but fails to intervene. The Reinas assert that this exception applies here because the Kims had notice of the Social Security Administration application for benefits and 20 C.F.R. § 404.932 (1986) gave the Kims the ability to intervene.
The Kims respond that they did not have notice of Thomas’s appeal of the denial of benefits until after the ALJ’s decision. The Reinas assert that notice of the initial application for benefits is enough notice.
The Reinas rely on the `virtual representation doctrine’ to support their argument. Garcia v. Wilson, 63 Wn. App. 516, 820 P.2d 964 (1991). This doctrine allows collateral estoppel to be used against a nonparty if he or she has a substantial identity of interest with a party to the proceeding. Garcia, 63 Wn. App. at 520.
The Garcia court listed several factors to be considered in order to apply the virtual representation doctrine. Garcia, 63 Wn. App. at 520-21. The primary factor is whether the nonparty was a participant, such as a witness, to the prior proceeding. Garcia, 63 Wn. App. at 521. Other factors include whether the issue was fully and fairly litigated and whether the evidence and testimony would be identical at both proceedings. Garcia, 63 Wn. App. at 521. Finally, there must have been some `tactical maneuvering,’ such as the nonparty knowingly declining to be a party to the prior proceeding. Garcia, 63 Wn. App. at 521. But this doctrine must not be applied to unjustly deprive a nonparty of his or her day in court. Garcia, 63 Wn. App. at 520. Here, the Kims did not participate in the Social Security Administration ruling as witnesses. Even if they had notice of Thomas’s application for benefits, there is no evidence of tactical maneuvering, and this factor need not be determinative.
Finally, as noted above, the virtual representation doctrine should be applied conservatively so as not to unfairly deprive someone of his or her day in court. See Garcia, 63 Wn. App. at 520. In the present case, not enough of the factors have been met to show that the Kims were virtually represented before the Social Security Administration. Therefore, this element has not been met.
Because the four collateral estoppel elements are in the conjunctive and because we hold the Kims were not a party, nor in privity with a party, we do not address the other three elements. The trial court did not err in ruling that collateral estoppel does not apply to preclude relitigation as to Thomas’s injuries.
Affirmed in part, reversed in part, and remanded for further proceedings.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
WE CONCUR: SEINFELD, J., QUINN-BRINTNALL, A.C.J.