A bystander who intervened in a barfight showed “heroism” in trying to protect a friend, but a jury could still reasonably conclude that he assumed the risk of being stabbed with a broken beer bottle, the South Dakota Supreme Court has ruled.

The jury's finding of assumption of risk deprived Tim Duda of any recovery from Phatty McGee's in downtown Rapid City even though it had declared the nightclub 10 percent liable for the injuries he suffered when Willie Guerrero stabbed him in the neck.

“Heroism can exact a high cost,” a 4-1 majority of the Supreme Court said in a Dec. 3 opinion upholding the verdict. “Coming to the aid of an outnumbered friend in a fight, though understandable, and even commendable, still reflects a conscious decision to inject oneself into a volatile and dangerous situation.”

In a dissent, Justice Judith Meierhenry said the trial judge's instructions on assumption of risk “were incomplete and tended to confuse and mislead the jury.” She also questioned whether

the common law assumption of the risk doctrine completely survives in face of the legislative comparative negligence scheme ... South Dakota tort liability law only refers to contributory negligence and contains no mention of assumption of the risk as a defense.”

Applying comparative negligence, the jury found Guerrero 90 percent to blame. He stabbed Duda after smashing the beer bottle over the head of Duda's friend Ray Bledsoe.

Duda alleged Phatty McGee's was liable for failing to provide adequate and competent security. Assumption of risk, he argued, did not apply because he did not have time to appreciate the risk of stepping between Bledsoe and Guerrero and he was not a mutual aggressor or co-combatant but rather an innocent bystander injured by the intentional act of another.

“I stepped in with my back to [Bledsoe] and my arms out to ... try to keep him from getting injured more,” he testified.

But Justice John K. Konenkamp, writing for the Supreme Court majority, said the trial judge properly submitted the assumption of risk question to the jury:

No one can reasonably deny that there is a risk of injury in stepping into the middle of a fight, especially one where a beer bottle is being used as a weapon. Duda could have waited for security personnel to intervene or he could have summoned the police. Yet he chose to act on his own. A jury could reasonably conclude that, having seen the broken bottle, Duda had to have known and appreciated that the character of the risk could include that bottle.

Moreover, while Duda was not an aggressor, Konenkamp continued, “[H]e was no mere bystander in the sense that he was incidentally injured by being in the vicinity of a barroom brawl. He deliberately placed himself between his friend and two assailants.”

Duda required surgery for injuries to his jugular vein, nerves and neck muscles. At trial, his attorney described a “fight club” atmosphere at Phatty McGee's, fueled in part by its midnight promotion consisting of pouring free shots of whiskey into customers’ mouths.

By Matthew Heller
12/7/08