In Tyson v Dawkins (Docket No. 346595), the Court of Appeals analyzed a business’s duty to patrons and the role that an incident’s location plays in that analysis. The defendant bar failed to call the police after two patrons got into a fight right outside the front door. The same two patrons engaged in another fight a short time later. The trial court granted summary disposition in favor of the bar. The Court of Appeals reversed the trial court’s ruling in an unpublished opinion, explaining that the bar had a duty to protect the plaintiff after the first incident.
Background on Tyson
Plaintiff Edward Tyson went to B.S. & Co., a local bar, with a friend to pick up a takeout food order. That evening, bar patrons had congregated outside the building—a typical practice of the bar’s customers. As Tyson approached the front door, he heard several people making racist comments about him, including a profane racial slur. Tyson responded to the comments, defending his character and expressing his offense at the language. One of the bar’s patrons, David Dawkins, then repeated the profane racial slur and hit Tyson, knocking him out. This incident transpired on a sidewalk outside the bar.
Bystanders came into the bar talking about the incident that had occurred in front of the establishment. An off-duty bartender then stepped outside to check on Tyson, who was bleeding and spitting out blood. None of the bar’s employees called the police or asked Dawkins to leave. A few minutes later, Dawkins confronted Tyson again outside the bar and struck him several more times.
Tyson sued Dawkins and the bar. The trial court granted summary disposition in favor of the bar, concluding that it owed no duty to Tyson because the altercation occurred on a sidewalk area that the bar didn’t own. Tyson appealed.
The Court of Appeals’ Ruling
The Court of Appeals reversed the trial court’s decision. The majority held that the bar owed Tyson a legal duty to call the police after Dawkins initially punched him. (Judge David Sawyer concurred in the result but not the majority’s reasoning.)
The Court of Appeals began its analysis by explaining the scope of a business’s duty to protect its invitees from third parties. Typically, a business can assume that its patrons will obey the law, and there is no duty to anticipate and prevent criminal attacks by third parties. MacDonald v PKT, Inc, 464 Mich 334, 338 (2001). However, that assumption is no longer valid after something occurs on the business’s premises that would cause a reasonable person to recognize a risk of imminent harm to a particular invitee. Id. at 335, 338. At that point, the business has a duty to use reasonable care to protect the invitee from a third party’s foreseeable criminal acts. Id. “Once the duty is triggered, a merchant must ‘reasonably expedite the involvement of the police[.]’” Tyson, unpub op at 6, quoting MacDonald, 464 Mich at 335.
Next, the Court of Appeals held that the bar had a legal duty to protect Tyson because, after the first fight, a reasonable person would recognize an imminent risk that another fight might break out. The witness testimony showed, among other things, that Dawkins returned to his seat inside the bar after his initial encounter with Tyson on the sidewalk; “everybody” inside the bar was talking about what happened; a bar patron made a proclamation about the incident inside the bar; at least two customers directly informed the night shift manager of the incident; and Dawkins and Tyson were still at the bar. Based on these facts, the Court held that the bar should have recognized an imminent risk of harm to Tyson after the first altercation, triggering a duty to call the police. The Court also observed that “the need to expedite the involvement of the police was further enhanced by the racial overtones known by all and shared by several patrons.” Tyson, unpub op at 6.
Courts generally recognize that businesses do not have a duty to predict the future. The same is true in this case—the Court of Appeals concluded that the bar’s duty arose after the first knockout punch, not before.
The Court of Appeals then addressed whether the location of the assault affected the bar’s legal duties. The Court held that a business can’t claim that it had no duty to a patron merely because an injury occurred outside rather than inside the front door. testimony showed that the bar’s patrons regularly ordered drinks, left them sitting on the bar, and walked outside the building, whether to smoke, check out motorcycles, or listen to live music. Thus, the bar’s patrons spent enough time in the outdoor area around the bar’s front door for a reasonable jury to conclude that this space was effectively part of the bar.
For all of these reasons, the Court of Appeals held that the trial court improperly granted summary disposition in favor of the bar.
The Takeaway: Keep an Eye on Your Patrons!
Though Tyson is an unpublished decision, it stresses that business owners must be aware of what their patrons are doing and where their patrons regularly spend time. If interactions between customers are escalating, or patrons are exposed to another risk nearby, you may have a duty to act.
Interestingly, even though the incident underlying this case occurred in 2015, the Court of Appeals referenced the impact of the COVID-19 pandemic on the restaurant industry in its decision. As noted by the Court, the pandemic pushed restaurants to expand their footprints beyond their walls to allow outdoor dining. This further shows that, even though a restaurant or bar may not own the premises outside, it may still constructively possess and control it.
If you have questions about Tyson v Dawkins, please feel free to contact the author, Kari L. Melkonian. More information about Collins Einhorn’s General and Automotive Liability Practice Group is available here.
Kari Melkonian thanks summer associate Katharine M. Buehner for her assistance with this post.