Barkhurst v. Kingsmen (CA1/5/1/14)

A minor case about duty – minor because the plaintiff’s argument was pretty thin – that also makes a curious comment about appeal fees.

Barkhurst was assaulted by a drunken minor in the parking lot of a bar in Kingman. This happened during a dance the bar put on during the Kingman rodeo. The Kingsmen is a volunteer group that organizes the rodeo; its web site had listed the dance along with other events put on by rodeo sponsors. Barkhurst sued it on a dram shop allegation. The trial court granted it summary judgment. The Court of Appeals affirms.

It holds that the Kingsmen had no duty to Barkhurst. “As a general matter, there is no duty to prevent a third person from causing harm to another unless the defendant stands in a special relationship with the third person or with the victim.” The Kingsmen did not control the bar or its activities, which distinguishes the cases Barkhurst relied on. Public policy does not “create a duty upon [sic] persons who sponsor and promote events at which liquor is served to prevent serving underage patrons.”

Barkhurst also argued on appeal that the bar was the apparent agent of the Kingsmen. But he hadn’t done so in the trial court so the Court of Appeals declines to address the argument.

The court denies the Kingsmen’s request for a fee award, though, for the reason that to get that the appeal must be “groundless and not made in good faith.” Apparently the court could agree with the “groundless” part but “nothing in the record indicates the appeal was not pursued in good faith.” One wonders what indicia of bad faith the courts expect normally to show up in the record.

(link to opinion)