DATE: 19981117
DOCKET: C26301
COURT OF APPEAL FOR ONTARIO
RE:
JAMES ELDON MURPHY, CAROL MURPHY, JOHN HILL
and HELEN HILL (Plaintiffs/Respondents) v.
LITTLE MEMPHIS CABARET INC.
(Defendant/Appellant)
BEFORE:
FINLAYSON and AUSTIN JJ.A. and SHARPE J. ad
hoc
COUNSEL:
Barry A. Percival Q.C.
for the appellant
Myron W. Shulgan, Q.C. and James H. Cooke
for the respondents
HEARD:
November 16, 1998
ENDORSEMENT
[1] Little Memphis Cabaret Inc. ("Little Memphis") appeals
from the judgment of the Honourable Mr. Justice Zuber dated
December 9, 1996. The action arises out of damages for
injuries sustained by James Eldon Murphy ("Murphy"), in an
assault which took place after 1:00 a.m. on July 19, 1992,
outside of a tavern located in the City of Windsor, and
owned by Little Memphis. The appeal is as to liability
only.
[2] The assault on the respondent Murphy, which occasioned
his significant injuries, took place after he and his
friend, Terrance Cairns, were ejected from the tavern. The
injuries were inflicted by one or more of four other
patrons with whom they had been fighting in the tavern.
[3] The trial judge found, on conflicting evidence, that
the respondent Murphy and Cairns were put out the front
door of the tavern at the same time that the group of four
patrons, three of whom were clearly troublemakers, were put
out the back door. He made the finding, with which we
cannot interfere, that "it was eminently foreseeable that
when Murphy and Cairns were ejected from the tavern that
they would be attacked by one or more of the group of
four". On the basis of these findings, and after citing
Jordan House v. Menow, [1974] S.C.R. 239 and Dunn v.
Dominion Atlantic Railway (1920), 52 D.L.R. 149, he found:
In both those cases the duty to use
reasonable care in expelling a patron related
to an intoxicated patron. However, I do not
regard the principle that emerges from those
cases as being confined to the intoxicated
patron. It is not necessary or even prudent to
attempt to define the outer limit of that
duty. The strength of the common law rests in
its experimental and inductive quality moving from case to case in the development
of principle. In this case, it is sufficient
to say that the tavern owner had an
obligation to exercise reasonable care in
expelling Murphy from the tavern in view of
the fact that imminent danger which
originated within the tavern awaited him
outside the door.
[4] We agree with this application of the law to the facts
of this case.
[5] It was argued on appeal that there was evidence before
the trial judge of contributory negligence on the part of
the respondent Murphy. However, there is no evidence in
this record that Murphy precipitated the conflict in the
tavern or in what took place outside. He was a regular
patron of the tavern and the evidence was that he had never
caused any problems. In the submission of the respondent,
he was the least culpable of all the participants in the
fracas in the tavern.
[6] While the trial judge did not deal specifically with
this issue, we are told that it was not argued before him.
In any event, it is quite clear that there is no basis for
a finding on this record of contributory negligence on the
part of the respondent Murphy.
[7]
Accordingly, the appeal is dismissed with costs.