Thuan Ngoc Do v. Phuong Hoang Ngo

618 So. 2d 1213, 1993 La. App. LEXIS 1922, 1993 WL 166304
CourtLouisiana Court of Appeal
DecidedMay 12, 1993
DocketNo. 93-CA-137
StatusPublished

This text of 618 So. 2d 1213 (Thuan Ngoc Do v. Phuong Hoang Ngo) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thuan Ngoc Do v. Phuong Hoang Ngo, 618 So. 2d 1213, 1993 La. App. LEXIS 1922, 1993 WL 166304 (La. Ct. App. 1993).

Opinion

WICKER, Judge.

Thuan Ngoc Do, the plaintiff in this personal injury suit, appeals the dismissal of his claims against the defendants, Phuong Hoang Ngo and Hien Thi Dinh. The sole issue is the liability of the operators of a nightclub/lounge for intentional injury to a guest inflicted by another guest. We affirm.

Ngo and Dinh were members or managers of an informal association known as the Vietnamese Airborne Group (V.A.G.), composed mostly of people who had been acquainted in Vietnam. This association used the Queen Bee, a night club/lounge, for a fund-raising party which was open to the public. It hired a band for listening and dancing, and admission tickets and beer were sold. Dinh owned the building the Queen Bee was in, and Ngo owned some of the equipment. Dinh’s brother, Loan Dinh, also owned some of the equipment and leased the premises from Dinh.

The night of the party, Dinh hired security guards. After the band had finished playing and the general public had gone home, either Dinh or someone in the V.A.G. discharged the security guards. Only the band, the association members, and friends remained, including Thuyen Cao and Do. There were a total of fifteen to fifty people remaining, depending on whose testimony is believed, all of whom knew each other. They sat around talking to each other and eating.

Do was talking to a band member when Cao, accompanied by two other men, walked over and put his arm around Do. There was an exchange of words, apparently without anger; and Cao pulled a gun out of his jacket and shot Do in the chest. Cao [1214]*1214then put his gun back in his jacket, and he and his friends left the Queen Bee.

Do, now a permanent paraplegic as a result of the bullet’s severing his spine, sued Dinh and Ngo, on the theory that they failed to take steps to protect their patrons and provide a reasonably safe place of business. The judge ruled against Do, finding that

the defendants did not breach their duty of care to plaintiff when they permitted the security guards to leave. The owners had no reason to anticipate that any harm would come to the persons remaining on the premises. Under the facts of the case, there was nothing that occurred prior to or immediately preceding this incident which made this particular injury-causing criminal conduct foreseeable.

In order to prevail, Do must prove three things: (1) Ngo and/or Dinh’s failure to have the security guards stay after the band had stopped playing and the general public had left was a cause-in-fact of Cao’s shooting him, (2) Ngo and/or Dinh had a duty to protect Do from being shot by Cao under these circumstances, and (3) Ngo and/or Dinh breached that duty. See Molbert v. Toepfer, 550 So.2d 183 (La.1989). Based upon the jurisprudence and the evidence, we conclude that the judge was correct in dismissing Do’s suit.

The leading case outlining the duty of a business proprietor to a customer is Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364 (La.1984). The plaintiffs were customers at the Pizza Hut; and the off-duty policeman hired by the restaurant was seated inside, eating and talking, when two or three armed robbers entered. The time, about 9:00 P.M., was shown by statistical evidence to be the point of highest risk of crime. The lead robber, armed with a shotgun, saw the guard, who had moved toward his gun; and he shot in the direction of the guard, killing one and wounding the other of the plaintiffs. The Court held that a business proprietor has a duty to provide a reasonably safe place of business and to protect patrons from reasonably foreseeable violence.

This Court has also considered the duty of a proprietor to his patron in Toups v. Hawkins, 518 So.2d 1077 (La.App.1987). The plaintiff in that case, a nightclub patron, sued the nightclub owner for injuries incurred during a shooting at the nightclub. In ruling on a summary judgment in favor of the proprietor, we held:

A business proprietor owes to his patrons the duty to provide a reasonably safe place .... Although he is not the insurer of his patrons or guests, the proprietor owes them a duty to exercise reasonable care to protect them in both their person and their property.... He must maintain his premises free from unreasonable risks of harm or warn patrons of known dangers thereon.... Beyond these measures, the proprietor must exercise reasonable care to protect his guests from harm at the hands of an employee, another guest, or a third party.... As to criminal acts performed by third parties specifically, there is, generally, no duty to protect others from the criminal acts of those parties.... That is, the general duty of reasonable care does not extend to protecting patrons from the unanticipated criminal acts of third parties_ Only when the proprietor has knowledge of, or can be imputed with knowledge of, the third party’s intended conduct is the duty to protect invoked_ Finally, notwithstanding the general absence of any duty to protect against third-party criminal acts, an obligation to protect, once voluntarily assumed by the business owner or manager, must be performed with due care.... Whether violence that results from the breach of an assumed duty of protection was reasonably foreseeable and is cause-in-fact of an injury is a factual inquiry....

At 1081-82 (citations omitted) (some emphasis added). See also Willie v. American Cas. Co., 547 So.2d 1075 (La.App. 1st Cir.1989), writ granted on other grounds 553 So.2d 467 (La.1989); Sutter v. Audubon Park Com’n, 533 So.2d 1226 (La.App. 4th Cir.1988), writ denied 538 So.2d 597 (La.1989).

[1215]*1215Hang Do, Do’s eighteen-year-old daughter, testified that her father was in the business of promoting bands and in competition with the Queen Bee. Do told her that, the evening of the shooting, he was talking with the band’s singer and Cao asked him to have a drink with him. Do couldn’t have a drink, however, since he had just undergone surgery. Do told her that he and Cao argued about Do’s partner, Tao Soa, and that Do defended Soa, at which point Cao took out a gun and shot him. Do knew Cao but he wasn’t a close friend.

Do, testifying through an interpreter, said he made his living organizing music. The evening of the shooting, he came to the Queen Bee about 11:00 P.M. to distribute advertising and meet the band; and he sat with the band and didn’t drink because of his recent surgery. Do saw Cao sitting with friends and drinking beer at another table. He had known Cao previously because Cao organized music also and came to his house once. They were acquaintances and had no previous arguments. Shortly after his arrival, Cao asked him to have a beer with him.

Do testified that when the band stopped playing, the crowd, which had been three or four hundred people, dwindled. Only twenty or thirty people remained; and some of them, especially the band, were eating. Cao, smelling of beer, came up to him about 2:00 A.M. and patted him on the back, telling him that he wanted to talk. Do and Cao then moved closer to the bar. When Cao approached him, “He told me that he loved my children very much and he didn’t want me to have anything to do with Mr. Soa [Tao Soa, Do’s partner].” Cao considered himself Do’s friend and didn’t want him associating with Soa. Do, however, told Cao he was going to remain partners with Soa; but Cao didn’t agree and they had an argument. Cao did not threaten him during the conversation.

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Related

Sutter v. Audubon Park Commission
533 So. 2d 1226 (Louisiana Court of Appeal, 1988)
Harris v. Pizza Hut of Louisiana, Inc.
455 So. 2d 1364 (Supreme Court of Louisiana, 1984)
Molbert v. Toepfer
550 So. 2d 183 (Supreme Court of Louisiana, 1989)
Willie v. American Cas. Co.
547 So. 2d 1075 (Louisiana Court of Appeal, 1989)
Toups v. Hawkins
518 So. 2d 1077 (Louisiana Court of Appeal, 1987)

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618 So. 2d 1213, 1993 La. App. LEXIS 1922, 1993 WL 166304, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thuan-ngoc-do-v-phuong-hoang-ngo-lactapp-1993.