
    WILD WILD WEST SOCIAL CLUB, INC. v. Stephen L. MORRISON.
    2990396.
    Court of Civil Appeals of Alabama.
    June 23, 2000.
    Dissenting Opinion on Overruling of Rehearing Sept. 22, 2000.
    
      William H. Hardie of Johnstone, Adams, Bailey, Gordon & Harris, L.L.C., Mobile, for appellant.
    Joe Carl “Buzz” Jordan of Ross & Jordan, L.L.C., Mobile, for appellee.
   MONROE, Judge.

Stephen Morrison sued Wild Wild West Social Club, Inc., “d/b/a Plum Crazy,” and other defendants, claiming that they had negligently allowed Morrison to be physically assaulted and beaten and that their negligence was the proximate cause of Morrison’s injuries. One defendant was dismissed. A jury returned a verdict in favor of Morrison and against Wild Wild West and the other remaining defendants, assessing his damages at $35,000. Wild Wild West moved for a new trial, which was denied. Wild Wild West appeals.

It is well settled that a presumption of correctness attaches to a jury verdict and that a judgment based upon a jury verdict will be reversed only if it appears to be plainly and palpably wrong. Brannon v. Webster, 562 So.2d 1337 (Ala.Civ.App.1990). That presumption is strengthened by the denial of a motion for a new trial. Brannon, at 1337.

The evidence in the record indicates the following: On November 9, 1996, Morrison arrived at a “social club” operated by Wild Wild West, between 10:00 and 11:00 p.m. Morrison consumed “two or three beers” and around 1:00 a.m. was dancing when a Wild Wild West bouncer grabbed him and carried him outside to the parking lot. Morrison claims he is unsure why the bouncer grabbed him and carried him outside. Once outside, a Wild Wild West security guard pulled the bouncer off Morrison and began questioning the bouncer. Morrison walked toward the bouncer, and while doing so, bumped into James Graham, another security guard. At this point, two other security guards walked Morrison back to their patrol car. At some point, Graham came up to Morrison and hit him in the groin. A Wild Wild West manager then came out, apologized to Morrison, and informed him that the bouncer and Graham had been immediately fired. The evidence in the record indicates that the security guards were employed by Metropolitan Security Services and had been hired by Wild Wild West to secure the club and the surrounding area.

Two days later, Morrison went to an emergency room because he was still experiencing pain. Doctors discovered that one of Morrison’s testicles was ruptured; they-rushed him to surgery, where half of the testicle was removed. Morrison was forced to recuperate at home for almost two months.

On appeal,- Wild Wild West contends that Morrison failed to introduce substantial evidence indicating that his injuries were the foreseeable result of his ejection from the club. Morrison appears to have been a business invitee at the Wild Wild West club, and the record contains no evidence indicating otherwise. Our Supreme Court in Raney v. Roger Downs Insurance Agency, 525 So.2d 1384, 1386 (Ala.1988), held, in regards to negligence law, that “the duty owed by a premises owner depends upon the status of the injured party.” The evidence in the record indicates that Morrison entered the Wild Wild West club for a business purpose; that fact would make him an “invitee.” See Copeland v. Pike Liberal Arts School, 553 So.2d 100 (Ala.1989). Wild Wild West owed Morrison, an invitee, a duty of care to prevent him from being harmed, if it was foreseeable that without the exercise of care harm might result. See Lance, Inc. v. Ramanauskas, 731 So.2d 1204 (Ala.1999). Morrison contends that it was foreseeable that Graham, acting as security guard for Wild Wild West, would be hostile toward Morrison because Morrison had just been forcibly ejected from the club. We agree. Graham testified that his duties included breaking up fights and that Morrison was forcibly removed from the club and appeared to be having a confrontation with the bouncer. Given the totality of the circumstances, the evidence regarding these events would allow the jury reasonably to infer that Graham, acting as security guard, would become involved in Morrison’s situation.

Morrison presented substantial evidence indicating that his injuries were a foreseeable result of his ejection from the Wild Wild West club.

The dissenting opinion quotes Butler v. AAA Warehousing & Moving Co., 686 So.2d 291, 293 (Ala.Civ.App.1996), in which this court stated: “Foreseeability must be based on the probability that harm will occur, rather than the bare possibility.” Butler is distinguishable from the present ease. Butler was a personal-injury action against a company that had erected a club’s parade reviewing stand; the plaintiff claimed that the company that had erected the stand had negligently failed to recognize the hazard of open spaces between the levels of stands, to advise the club of that hazard, and to take steps to correct that hazard. Id. In Butler, we stated that the trial court correctly stated the plaintiffs burden of proof:

“Thus, to show negligence by AAA in this case, [Butler] must show that AAA reasonably should have foreseen that someone’s foot would get .caught in the space between the levels of the reviewing stand, resulting in injury, and that AAA failed to exercise reasonable care by leaving the space uncovered, based on the facts and circumstances AAA had before it on February 8, 1993, the day it completed erection of- the stand for the 1993 Mardi Gras season.”

Id at 293.

Graham testified that it was within his job description to “make”, intoxicated patrons leave the premises and to break up fights. This job description recognizes the probability that altercations, including violence, may occur. This probability is certainly distinguishable from the “bare possibility” we dealt with in Butler, a “bare possibility” that an injury could occur if a person were to have his foot “caught in the space between the levels of the reviewing stand.” 686 So.2d at 293.

Wild Wild West also contends that Morrison failed to introduce evidence indicating that his injuries were caused by an agent, servant, or employee of Wild Wild West. This claim is based on the fact that Graham and the other security guards were. employed by Metropolitan and were hired by Wild Wild.West to secure the club and surrounding premises, including the parking lot. Our Supreme Court in Malmberg v. American Honda Motor Co., 644 So.2d 888, 890 (Ala.1994), stated that the test for determining whether an agency relationship is present is the existence of a “right of control” by the potential principal over the potential agent’s manner of performance. Whether an agency relationship existed between Graham and Wild Wild West was a question to be determined by the jury. See Malmberg, at 890. The trial court instructed the jury as to agency law in part as follows:

“Part of what is in issue in this case is whether or not James Graham, the person delivering the blow, was an agent or employee of Wild Wild West or was the employee of an independent contractor, Metropolitan Patrol Service. Now, if Graham was an employee — by that, was an agent of Metropolitan Patrol Service at the time the -blow was delivered— then there is no liability on behalf of Wild Wild West.'
“So, unless Wild Wild West did, in fact, control the actions of Graham or have the right to control his actions, then they’re not responsible under the principle of respondeat superior, master-servant, [employer-employee] relationship for the acts of Graham.”

As stated, Graham testified that his duty, while he was stationed in the parking lot, was to keep the lot secure, to “make” intoxicated patrons leave, and to break up fights. Graham was clearly placed in the parking lot to act on behalf of, and for the benefit of, Wild Wild West. Graham’s job description recognizes the possibility that, altercations may occur. Based on the trial court’s instructions, the jury found in favor of Morrison finding that Graham was in fact an agent of Wild Wild West.

Last, Wild Wild West contends that Morrison failed to introduce evidence indicating that Wild Wild West occupied the premises or operated the nightclub known as Plum Crazy. This contention is based on the fact that Wild Wild West was identified in the caption of the complaint as “Wild Wild West Social Club, Inc., d/b/a Plum Crazy.” However, Wild Wild West failed to raise this argument before the trial court. It is well settled that this court will not consider issues raised for the first time on appeal. Andrews v. Merritt Oil Co., 612 So.2d 409 (Ala.1992).

The trial court’s judgment based upon the jury verdict is affirmed.

AFFIRMED.

ROBERTSON, P.J., and YATES and CRAWLEY, JJ., concur.

THOMPSON, J., dissents.

THOMPSON, Judge,

dissenting.

I disagree with the main opinion on the issue of foreseeability. Therefore, I dissent.

This court must consider the evidence as it best supports the jury’s verdict. That evidence includes Morrison’s trial testimony that he wanted to ask the bouncer why he had been removed from the club and that, as he walked toward the bouncer, he “may have” bumped into Graham. Morrison testified at trial that at no time did he strike, kick, or punch Graham. Morrison testified that two security guards each held one of his arms and took him to their patrol car.. Morrison testified that, while he was near the patrol car and his arms were being held by the two security guards, Graham walked over to the area and punched Morrison in the groin.

I do not agree with the main opinion that an inference that Graham would “become involved” is enough to predicate liability on the part of Wild Wild West for Graham’s actions. I believe that the question of foreseeability is not whether Graham might be “hostile” toward Morrison or might “become involved” in the security incident, but whether it was foreseeable to Wild Wild West that Graham would walk up and strike Morrison absent provocation. “[F]oreseeability must be based on the probability that harm will occur, rather than the bare possibility.” Butler v. AAA Warehousing & Moving Co., 686 So.2d 291, 293 (Ala.Civ.App.1996). No evidence in the record indicates that Wild Wild West had any notice that Graham, the security guard' — who was a former police officer — would injure a patron of the club after the patron had been forcefully evicted from the club, especially under the circumstances of this case. I conclude that the record contains no indication of any probability that a patron of the club would be injured under facts similar to those of this case and, therefore, that Morrison’s injury was not foreseeable.

Neither party objected to the trial court’s jury instruction regarding foreseeability. Therefore, that jury instruction became the law of the case. BIC Corp. v. Bean, 669 So.2d 840 (Ala.1995); Griner Drilling Serv., Inc. v. Jenkins, 497 So.2d 187 (Ala.Civ.App.1986). The jury instruction read as follows:

“The Court has used the term ‘foreseeable’ or ‘unforeseeable’ and ‘foreseeability’ in its instructions to you. In the law, the word ‘foreseeable’ has a special meaning which may or may not be the meaning which you understand from its ordinary usage. For example, an event or act is not foreseeable in the legal sense merely because it is possible. Moreover, even if there is a statistical certainty that an event will occur within a given number of opportunities, that predictability alone does not establish that the event is foreseeable. To be foreseeable, an act must be both probable and predictable. A foreseeable event need not be more probable than not, but the event must be so likely to occur that a reasonable person would consider it in conducting his or her affairs. In reaching your verdict and applying the Court’s instructions, you must apply the meaning of foreseeability which the Court has given you and not any different meaning.”

I do not believe that it was probable that Graham would strike Morrison after Morrison was evicted from the club, or that Graham’s injuring Morrison was so likely that a reasonable defendant would have considered it in the course of providing security outside the club. For that reason, I dissent.

On Application For Rehearing

MONROE, Judge.

APPLICATION FOR REHEARING OVERRULED; RULE 39(k) MOTION DENIED.

ROBERTSON, P.J., and YATES, J., concur.

CRAWLEY and THOMPSON, JJ., dissent.

CRAWLEY, Judge,

dissenting.

Although I concurred in the majority opinion on original deliverance, I am compelled, after much reconsideration, to dissent from the order denying the application for rehearing.

As Wild Wild West Social Club, Inc. (“Wild Wild West”), argues, the record is completely devoid of any evidence of agency upon which to submit the agency issue to the jury. The only witnesses at trial were James Graham, the security guard, and Stephen Morrison, the injured patron. Graham testified that he was employed by Metropolitan Patrol Service (“MPS”) and that Albert Dyess, the owner of MPS, paid him and directed the manner of his work, fie further testified that he did not know the manager of the club from which Morrison was ejected. Morrison’s testimony did not .contradict Graham’s, and, in fact, actually supported it. He testified that Dyess, not the manager of the club, had told him that Graham would be fired for punching Morrison. With no evidence from which the jury could find the existence of an agency relationship, the trial court erred by failing to grant a judgment as a matter of law for Wild Wild West on this issue. Because Graham was not proven to be its agent, Wild Wild West cannot be liable for his actions, if they were negligent, because, in most circumstances, one is not liable for the negligent acts of an independent contractor. See Martin v. Goodies Distrib., 695 So.2d 1175, 1177 (Ala.1997).

The other theory of liability presented at trial was the general theory of negligence. Wild Wild West posits that this case is akin to the “criminal-acts-of-third party” premises liability cases, and argues that the injury to Morrison was not foreseeable and therefore that it cannot be liable to him. See Carroll v. Shoney’s Inc., 775, So.2d 753, 756 (Ala.2000). One of Morrison’s arguments to the trial court in preparation for submitting the case to the jury was that Wild Wild West was negligent because its actions in ejecting Morrison placed him in a situation where the security guards were likely to perceive him as a troublemaker and then act on that perception. Thus, he concluded, Wild Wild West was liable for his injuries because of its negligence in ejecting him. I do not agree that liability can be predicated on either theory.

In regard to the application of the premises-liability theory, Wild Wild West states, in its application for rehearing, that this court has “turnfed] foreseeability on its head.” I tend to agree, after examining the law on the issue of premises liability. A premises owner is not an insurer of his patron’s safety, see, generally, Lowe’s Home Centers, Inc. v. Laxson, 655 So.2d 943, 946 (Ala.1994), and our supreme court has held that the decision to employ security personnel is not sufficient to give rise to the inference that a premises owner foresaw the possibility of criminal activity. See Moye v. A. G. Gaston Motels, Inc., 499 So.2d 1368, 1373 (Ala.1986). Morrison presented no evidence of any criminal activity on the premises of Wild Wild West and presented no evidence of a tendency on the part of any security guard to use excessive force when dealing with patrons. See Moye, 499 So.2d at 1372-73. Without such evidence, Morrison failed to prove that the attack on him was foreseeable.

In regard to Morrison’s theory that Wild Wild West’s liability is premised on its decision to eject him from the premises of the nightclub in such a manner as to indicate that he was a troublemaker, thus resulting in some animosity being directed at him by the security guards, I must also disagree. Morrison testified that he did not claim any injury resulted from his ejection by the bouncer at Plum Crazy. That said, he still maintains that the ejection is the cause of his injury, because “but for” the ejection he would not have been in the parking lot with security guards who perceived him as a troublemaker. The issue, even under this tortured theory of liability, is still foreseeability.

The supreme court has spoken on the issue of whether the presence of security personnel raises an inference of foreseeability of harm: it does not. See Moye, 499 So.2d at 1373. As discussed above, Morrison presented no evidence of similar incidents involving security guards in the parking lot. Thus, Wild Wild West’s decision to use security guards does not raise an inference that it knew altercations were likely to occur on its premises, and there is no evidence to indicate the security guards had ever used excessive force against an ejected patron. Wild Wild West’s decision to eject Morrison from the premises, without knowledge that injury to Morrison was a probable result, see Carroll, 775 So.2d at 755-56, cannot subject it to liability.

Morrison’s injury was unfortunate. Indeed, it appears that Graham either used excessive force in attempting to subdue Morrison or that he committed an unprovoked, intentional tort. Either way, however, Wild Wild West is not responsible for Morrison’s injury. The trial court should have granted Wild Wild West’s motion for a JML; I would reverse the judgment that resulted from the denial of that motion.  