IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100428

Docket:
S023782

Registry: Vancouver

Between:

Russ Kenneth Hartley

Plaintiff

And

RCM Management Ltd., RCM Management
Ltd. doing business as the Barfly Cabaret, 582642 B.C. Ltd. and 582642 B.C.
Ltd. doing business as the Barfly Cabaret, Empress Towers Ltd., John Doe and
Richard Roe

Defendants

Before: The Honourable Madam Justice Gerow

Reasons for Judgment
In Chambers

[1]            
This case arises out of an incident which
occurred in the Barfly Cabaret on February 23, 2002. Russ Kenneth Hartley, who
was 22 years old, was injured when he was struck by a beer bottle in his right
eye by an unidentified assailant. As a result of the injury, he lost vision in
his right eye. The defendants, 582642 B.C. Ltd. and 58642 B.C. Ltd. doing
business as Barfly Cabaret (collectively “the corporate defendants”) were the
operators of the Barfly at the time.

[2]            
The corporate defendants are seeking to have the
claims against them dismissed on this summary trial application.
Mr. Hartley alleges the corporate defendants were negligent and in breach
of duty their duty as occupiers by failing to comply with s. 3 of the Occupiers
Liability Act, R.S.B.C. 1996, c. 337. Mr. Hartley agrees that it is
appropriate to determine the issue of whether the corporate defendants are at
fault by summary trial and seeks judgment against them.

[3]            
The issues are:

1.       Is it appropriate to determine liability by way of summary trial?

2.       If so, are the corporate defendants liable to Mr. Hartley
for failing to intervene in the fight before Mr. Hartley was hit with the
bottle?

3.       Should liability be apportioned between Mr. Hartley,
the corporate defendants and the unknown assailant, the defendant John Doe,
and, if so, in what proportions?

Background

[4]            
At the time of the incident, the Barfly was a
nightclub located in New Westminster, B.C. The capacity of the Barfly was 350
people. On the night in question, there were approximately 250 people at the nightclub,
which was typical for a Friday night.

[5]            
There were four doormen working that night who
were experienced security staff. There were also approximately 12 other
staff members on duty, including bartenders and servers, all of whom have
completed the “Serving it Right” course. In addition, the manager, Cass
MacLeod, was on duty. Mr. MacLeod acted both as manager and as an
additional security staff. The security staff have specific stations within the
club. According to Mr. MacLeod, you can see the entire nightclub from just
about every vantage point.

[6]            
The Barfly has two bars. The bar in the centre
of the Barfly is the largest one. There is a smaller bar towards the back of
the Barfly against the wall furthest from the door. Although the Barfly
consists of one large room, there are three floor levels. There are elevated
areas on both the left and right side of the Barfly. The left side is elevated
by one or two steps and the right side is slightly higher than the left.

[7]            
Mr. Hartley was at the Barfly to celebrate
a friend’s birthday. The fight occurred approximately half an hour after he
arrived.

[8]            
Mr. Hartley was walking with his friend Dylan
Lutke after buying drinks at the smaller bar at the rear of the Barfly, when Mr. Lutke
bumped into another man. Mr. Hartley’s evidence is that the bumping did
not appear to be deliberate and was not at all violent. Even though the bumping
was a minor incident, the man immediately pushed and yelled at Mr. Lutke. Mr. Lutke
responded by yelling and pushing back. Mr. Lutke’s evidence is that the
pushing and yelling went on for at least two minutes.

[9]            
Mr. Hartley’s evidence is that when Mr. Lutke
and the other man started to argue, he did not intervene. Rather, he stepped
back from the situation and watched the men from a distance of 10 to 15 feet. The
man appeared to be with a group of three or four people. According to Mr. Hartley,
Mr. Lutke and the man engaged in pushing and shoving for between 2 to 2½ minutes.
The men were pushing each other in the chest with their hands in a forceful and
aggressive manner. Both men continued to yell loudly at one another during the
altercation. After 2 to 2½ minutes, Mr. Lutke was struck on the head by a
bottle wielded by a third man from the group with the man he was fighting.
Mr. Hartley stepped in to assist Mr. Lutke and was hit with a bottle
wielded by another unidentified individual. Mr. Hartley did not alert any of
Barfly’s staff before he stepped in to assist Mr. Lutke.

[10]        
Mr. Hartley deposes that he knew
immediately he had a serious injury. His eyesight from his right eye was very
impaired, and he reacted by withdrawing from the area. His friends came to his
assistance and took him to the hospital.

[11]        
Mr. MacLeod’s evidence is that altercations are
rare at the Barfly. He was talking to someone when he heard a crash and turned
to see several men fighting approximately 10 feet away from where he was
standing. He immediately grabbed the biggest man, who seemed to be the most
threatening, and took him outside. Mr. MacLeod noticed the doorman, Andrew
Vowles, approaching the group to assist. Mr. Vowles brought a second man
outside. He saw one man with a bleeding face but his description did not match that
of Mr. Hartley.

[12]        
Mr. MacLeod did not see any pushing or shoving
before he heard the crash. His evidence is that 2 to 2½ minutes of pushing and
shoving with hands to the chest would not be tolerated in the Barfly. He agreed
that would exceed the amount of tolerable physical contact.

[13]        
Mr. Vowles’ evidence is that he was working as
the inside doorman. He was also keeping an eye on what was going on in the nightclub.
Just before 1:00 a.m., he saw a group of people fighting about 10 to 15 feet
away from him. He immediately went over and tried to stop the fight by
separating the men. He recalls hearing a beer bottle break during the fight. One
of the men hit him in the face, breaking his nose. Prior to seeing the
fighting, he had not seen or heard anything that suggested that a fight was
going to occur.

Is it appropriate to determine liability
by way of summary trial?

[14]        
Both Mr. Hartley and the corporate defendants
agreed that the matter is appropriate for determination by way of summary trial.
However, even when the parties agree a summary trial is appropriate, the court
must consider whether the matter is suitable for determination by summary
trial: North Vancouver (District) v. Fawcett (1998), 60 B.C.L.R. (3d)
201 (C.A.).

[15]        
The test for granting a summary judgment is set
out in Rule 18A(11) which provides that the court may grant judgment in favour
of any party, either on an issue or generally, unless the court is unable on
the whole of the evidence to find the facts necessary to decide the issues of
fact or law. Even if there is sufficient evidence to decide the necessary
factual and legal issues, the court may nevertheless decline to give judgment
if it would be unjust to decide the issues on the application.

[16]        
Having reviewed the application material and
considered the arguments advanced by both parties, I am satisfied that there is
sufficient evidence to decide the necessary factual and legal issues and that
it would not be unjust or inappropriate to decide the issue of liability. As
well, I am of the view that determining the issue of liability by way of
summary trial results in both the effective use of court time and the efficient
resolution of the proceeding.

[17]        
There is no conflict in the affidavit evidence
as to what occurred. None of the security guards or staff of the Barfly recall
seeing the altercation described by Mr. Lutke and Mr. Hartley before
they heard the bottle breaking, by which time three or four people were
fighting with fists. As well, none of the Barfly’s staff recall ever seeing or
dealing with Mr. Hartley or Mr. Lutke either before or after Mr. Hartley
was injured. As a result, Mr. Hartley’s and Mr. Lutke’s versions of
the events which resulted in Mr. Hartley’s injuries are unchallenged.

Are the corporate defendants liable to Mr. Hartley for failing
to intervene in the fight before Mr. Hartley was hit with the bottle?

Parties’ positions

Mr. Hartley’s position

[18]        
Mr. Hartley takes the position that the corporate
defendants, as occupiers of the Barfly, had a duty to take the amount of care
which in all the circumstances was reasonable to see that he would be
reasonably safe when using the premises. He says it was the duty of the corporate
defendants to take reasonable care that he was not injured by dangers on the
premises which the corporate defendants either knew or ought to have known
existed. Mr. Hartley submits the corporate defendants did not meet that
standard of care.

[19]        
Mr. Hartley says the pushing and shoving
altercation between Mr. Lutke and the unidentified man should have been
seen by the Barfly’s staff, and they should have taken steps to intervene and
stop it. Mr. Hartley submits there was an inordinate delay on the part of
the corporate defendants’ staff, given the size of the premises and the
admitted ease with which the activities in the nightclub could be watched if
the staff were attentive. He argues that if they had intervened in a timely
fashion and stopped the pushing and shoving, he would not have been injured.

Corporate defendants’ position

[20]        
The corporate defendants’ position is that they
met the standard of care owed to Mr. Hartley. They say that the law
requires a bar owner to take reasonable steps to prevent harm to its patrons. Such
harm has to be foreseeable. They submit that the assault on Mr. Hartley
was not reasonably foreseeable. They say the fact that there was pushing and
shoving for 2 to 2½ minutes does not amount to proof that the Barfly staff
knew, or should have known of the altercation, or that things might escalate in
an unexpected way, eventually leading to Mr. Hartley’s injury.

[21]        
The corporate defendants submit the evidence
establishes there was no reasonably foreseeable risk to Mr. Hartley until,
at most, seconds before he was injured. By that time the Barfly staff, who had
been 10 to 15 feet away from the altercation were responding. They say that although
the staff responded as quickly as was possible, Mr. Hartley had already
been struck with a bottle and had suffered the injury complained of.

[22]        
As well, the corporate defendants take the
position that Mr. Hartley was well aware of the physical risk to him when
he intervened, yet did so instead of seeking help from the staff. Therefore, he
willing accepted the risk of becoming involved in the altercation.

Analysis

[23]        
The applicable provisions in s. 3 of the Occupiers
Liability Act, R.S.B.C. 1996, c. 337 provide:

(1) An occupier of premises owes a duty
to take that care that in all the circumstances of the case is reasonable to
see that a person, and the person’s property, on the premises, and property on
the premises of a person, whether or not that person personally enters on the
premises, will be reasonably safe in using the premises.

(2) The duty of care referred to in
subsection (1) applies in relation to the

(a) condition
of the premises,

(b) activities
on the premises, or

(c) conduct of
third parties on the premises.

(3) Despite subsection (1), an occupier
has no duty of care to a person in respect of risks willingly assumed by that person
other than a duty not to

(a) create a
danger with intent to do harm to the person or damage to the person’s property,
or

(b) act with reckless disregard to the
safety of the person or the integrity of the person’s property.

[24]        
Both Mr. Hartley and the corporate defendants
referred to a number of cases involving fights in bars and restaurants,
including Lehnert v. Nelson, Carveth and L. & R. Limited,
[1947] 4 D.L.R. 473 (B.C.S.C.); Hesse v. Laurie and Morinville Hotel Ltd.
(1962), 25 D.L.R. (2d) 413 (Alta. S.C.); Jeffrey v. Commodore Cabaret Ltd.
(1995), 13 B.C.L.R. (3d) 149 (S.C.); Penney v. Fort Nelson Hotel (1974) Ltd.,
[1988] B.C.J. No. 2506 (S.C.); Duncan v. Braaten (1980), 21 B.C.L.R. 369
(S.C.); and Petersen v. Stadnyk, 2003 BCSC 2012.

[25]        
It is clear from the case law that the corporate
defendants were not an insurer of Mr. Hartley’s safety. However, there are
circumstances in which an occupier of a nightclub or bar has been found liable
to its patron for injuries caused by another patron. Whether or not an occupier
of a nightclub or bar will be liable for injuries caused to a patron by another
patron is very fact dependent.

[26]        
The issue is whether the corporate defendants took
reasonable steps to protect Mr. Hartley from a danger they ought to have
recognized when Mr. Lutke and the unidentified man were yelling and
pushing and shoving.

[27]        
On the night of the incident, there were five
security staff on duty. The uncontroverted evidence of Mr. Lutke and Mr. Hartley
is that Mr. Lutke and an unidentified man were involved in an altercation
– pushing and shoving accompanied by loud yelling – for 2 to 2½ minutes.

[28]        
According to the corporate defendants, the
Barfly’s staff did not see the altercation, notwithstanding its duration. Nor
did the staff see Mr. Hartley or Mr. Lutke struck with a bottle. The Barfly’s
staff did not become aware of the altercation until they heard the sound of a
bottle breaking.

[29]        
The corporate defendants submit that the
altercation occurred suddenly and that their staff had no warning. They point
to the fact that Mr. Hartley admitted on his examination for discovery that
he was surprised when the individuals who had bumped into each other decided to
take it one step further, and equally surprised when another individual hit Mr. Lutke
with the bottle. Mr. Hartley also testified he didn’t think anything would
come of the dispute when Mr. Lutke and the man started arguing.

[30]        
However, Mr. Hartley’s evidence is that the
altercation was loud, and he could see something starting. In my view, it is
reasonably foreseeable that the type of altercation described by Mr. Lutke
and Mr. Hartley could escalate, and lead to a fight in which someone could
be injured by being hit by a bottle.

[31]        
The uncontradicted evidence of Mr. Hartley
and Mr. Lutke is that the altercation went on for 2 to 2½ minutes before
Mr. Lutke was hit with the bottle and Mr. Hartley stepped in to
assist him. As indicated earlier, Mr. MacLeod conceded that such behaviour
– yelling and shoving and pushing – would not be tolerated for that length of
time in the Barfly. I am of the view there was more than adequate time for
security staff to intervene before Mr. Hartley felt it necessary to go to
Mr. Lutke’s aid. Their failure to do so was, in my view, a breach of their
duty under s. 3 of the Occupiers’ Liability Act.

Should liability be apportioned between Mr. Hartley,
the corporate defendants and the unknown assailant, and, if so, in what proportions?

[32]        
Section 1(1) of the Negligence Act,
R.S.B.C. 1996, c. 333 provides:

If by the fault
of 2 or more persons damage or loss is caused to one or more of them, the
liability to make good the damage or loss is in proportion to the degree to
which each person was at fault.

[33]        
In this case, the corporate defendants submit
that both Mr. Hartley and the unidentified assailant who wielded the beer
bottle should be found at fault. Mr. Hartley takes the position that his
intervention was made necessary by the negligence and breach of duty of the corporate
defendants whose staff failed to see the altercation for an inordinate length
of time. Had they intervened in a timely manner there was more than enough time
to prevent Mr. Hartley from having to intervene and he would have suffered
no injury.

[34]        
Mr. Hartley says he was forced to intervene,
and as such he should not be found liable. However, Mr. Hartley did not
alert the staff of the Barfly when he saw Mr. Lutke and the other man
pushing and shoving each other. By intervening when he saw Mr. Lutke
struck with a bottle, he must be taken to have assumed some risk of the
possibility of injury.

[35]        
As well, the assailant must be assessed
liability. His action was an intentional assault, and as such he should bear
most of the responsibility. It is my view that the appropriate apportionment to
the unknown assailant is 50%.

[36]        
The other 50% should be apportioned between the corporate
defendants and Mr. Hartley. The corporate defendants had a number of
security staff working in the Barfly that night whose duties included
preventing fights from occurring. If the Barfly’s staff had been reasonably
attentive and intervened in a timely fashion, the injury to Mr. Hartley
would likely have been avoided or minimized. While Mr. Hartley must bear
some responsibility for intervening rather than alerting the Barfly’s staff, it
is my view that the corporate defendants bear more of the responsibility for failing
to intervene in a timely fashion. Having considered the roles of the corporate defendants
and Mr. Hartley, I have concluded the appropriate apportionment is 35% to
the corporate defendants and 15% to Mr. Hartley.

Costs

[37]        
The parties are at liberty to make submissions
regarding costs.

“Gerow
J.”