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Analyzing a Case
Case: Kuehn v Pub Zone1,
Facts: Maria Kerkoulas owned the Pub Zone bar, frequented by many motorcycle gangs, and knew
from her own experience and conversations with police that some of the gangs, including the Pagans,
were dangerous and prone to attack customers for no reason. Kerkoulas posted a sign prohibiting any
motorcycle gangs from entering the bar while wearing “colors,” that is, gang insignia. Based on her
experience, she believed that gangs without their colors were less prone to violence.
Rhino, Backdraft, and several other Pagans pushed past the bouncer wearing colors and approached the
bar. Although she saw their colors, Kerkoulas served them one drink. They later moved towards the
back of the pub, and Kerkoulas believed they were departing. In fact, they followed a customer named
Karl Kuehn to the men’s room, where without any provocation they savagely beat him, causing serious
injuries.
Kuehn sued the Pub Zone. The jury awarded him $300,000 in damages. The trial court judge overruled
the jury’s verdict and granted judgment for the Pub Zone, meaning that the tavern owed nothing. The
judge ruled that the pub’s owner could not have foreseen the attack on Kuehn, and had no duty to
protect him from an outlaw motorcycle gang. Kuehn appealed.
Issue: Did the Pub Zone have a duty to protect Kuehn from the Pagans’ attack?
Holding: Yes. Whether a duty exists depends upon an evaluation of a number of factors including the
nature of the underlying risk of harm, the opportunity and ability to exercise care to prevent the harm,
the comparative interests of, and the relationships between or among the parties, and, based on
considerations of public policy and fairness, the societal interest in the proposed solution.
Since the possessor [of a business] is not an insurer of the visitor’s safety, he is ordinarily under no
duty to exercise any care until he knows or has reason to know that the acts of the third person are
occurring, or are about to occur. He may, however, know or have reason to know, from past
experience, that there is a likelihood of conduct on the part of third persons in general which is likely
to endanger the safety of the visitor, even though he has no reason to expect it on the part of any
particular individual.
The totality of the circumstances presented in this case give rise to a duty on the part of the Pub Zone
to have taken reasonable precautions against the danger posed by the Pagans as a group. There was no
reason to suspect any particular Pagan of violent conduct, but Kerkoulas knew the gang collectively
had engaged in random violence. Thus, Kerkoulas had knowledge, as the result of past experience and
from other sources, that there was a likelihood of conduct on the part of third persons in general that
was likely to endanger the safety of a patron at some unspecified future time. A duty to take
precautions against the endangering conduct thus arose.
Question: What kind of case is this, civil or criminal?
Question: What is the difference?
Question: Who is the plaintiff and who the defendant?
Question: What is the key issue in this civil suit?
Question: Why does Pub Zone claim it had no duty to Kuehn?
Question: What did the trial court conclude?
1 364 N.J.Super.301, 835 A.2d 692 Superior Court of New Jersey, Appellate Division, 2003
Question: What did the appellate court decide?
Question: Why did the court decide that Pub Zone had a duty?
Answer: Kerkoulas’ sign prohibiting patrons from wearing gang colors, and the Pub Zone’s
Question: What should Pub Zone have done to satisfy its duty?
Answer:
Train bouncers and all other staff to be aware of patrons from whom such violence is
You Be the Judge: Soldano v. O’Daniels2
Note: There are two reasons for using this case. First is to introduce students to the “You Be the
Judge” feature. There is one such case in almost every chapter. The text provides the facts and issue
and then, in place of the court’s holding, gives competing arguments for the two sides. The text’s
authors wrote the arguments, often based on majority and/or dissenting opinions in the case. Since
students do not have the “answer,” they are forced to think for themselves.
An instructor can use these cases in many ways.
Divide the class in two and assign each side to argue for one of the parties.
Have students vote on the outcome before and after revealing the court’s holding.
Require students to prepare a short paper giving their own “holding.”
Have one or two students argue each side before the “court” (the professor and remaining
students).
The second reason for using this case is that it builds on the issue of negligence introduced in the
Kuehn v Pub Zone case, above. This time the court confronts a fight that resulted in a death. The
victim’s distraught family members sued the owner of a bar, claiming that one of his employees was
partly responsible for the death. Once again, the defendant asked the court to dismiss the case, claiming
that he they owed no duty to protect the victims—the same argument made by the Pub Zone.
Facts: In the days before cell phones, a fight broke out at Happy Jack’s Saloon. A Good Samaritan ran
across the street to the Circle Inn. He asked the bartender at the Circle Inn to let him use the telephone
to call the police but the bartender refused.
Back at Happy Jack’s Saloon, the fight escalated, and a man shot and killed Soldano’s father.
Soldano sued the owner of the Circle Inn for negligence. He argued the bartender violated a legal duty
when he refused to hand over the Inn’s telephone, and that, as the employer of the bartender, O’Daniels
was partially liable for his father’s death.
The lower court dismissed the case, citing the principle that generally, a person does not have a
legal responsibility to help another unless he created a dangerous situation in the first place. Soldano
appealed.
You Be The Judge: Did the bartender have a duty to allow the use of the Circle Inn’s telephone?
Argument for the Defendant: Your honors, my client did not act wrongfully. He did nothing to
create the danger. The fight was not even on his property. We sympathize with the plaintiff, but it is
2 141 Cal. App. 3d 443, Court of Appeal of California, 5th Appellate District, 1983.
the shooter, and perhaps the bar where the fight took place who are responsible for his father’s death.
Our client was not involved. Liability can only be stretched so far.
The court would place a great burden on the citizens of California by going against precedent. The
Circle Inn is Mr. O’Daniel’s private property. If the court imposes potential liability on him in this
case, would citizens be forced to open the doors of their homes whenever a stranger claims that there is
an emergency? Criminals would delight in their newfound ability to gain access to businesses and
residences by simply demanding to use a phone to “call the police”.
The law has developed sensibly. People are left to decide for themselves whether to help in a
dangerous situation. They are not legally required to place themselves in harm’s way.
Argument for the Plaintiff: Your honors, the Circle Inn’s bartender had both a moral and a legal duty
to allow the use of his establishment’s telephone. The Circle Inn may be privately owned, but it is a
business and is open to the public. Anyone in the world is invited to stop by and order a drink or a
meal. The Good Samaritan had every right to be there.
We do not argue that the bartender had an obligation to break up the fight or endanger himself in
any way. We simply argue he had a responsibility to stand aside and allow a free call on his
restaurant’s telephone. Any “burden” on him or on the Circle Inn was incredibly slight. The potential
benefits were enormous. The trial court made a mistake in concluding that a person never has a duty to
help another. Such an interpretation makes for poor public policy.
There is no need to radically change the common law. Residences can be excluded from this
ruling. People need not be required to allow telephone-seeking strangers into their homes. This court
can simply determine that businesses have a legal duty to allow the placement of emergency calls
during normal business hours.
Holding: The case was reversed and remanded to trial court.
Question: Did the bartender owe a duty?
Question: What is an argument for imposing this duty?
Multiple Choice Questions
1. The United States Constitution is among the finest legal accomplishments in the history of the
world. Which of the following influenced Franklin, Jefferson, and the rest of the Founding Fathers?
(a) English common-law principles
(b) The Iroquois’ system of federalism
(c) Both A and B
(d) None of the above
2. Which of the following parts of the modern legal system are “borrowed” from medieval England?
(a) Jury trials
(b) Special rules for selling land
(c) Following precedent
(d) All of the above
3. Union organizers at a hospital wanted to distribute leaflets to potential union members, but hospital
rules prohibited leafleting in areas of patient care, hallways, cafeterias, and any areas open to the
public. The National Labor Relations Board (NLRB), a government agency, ruled that these restrictions
violated the law and ordered the hospital to permit the activities in the cafeteria and coffee shop. What
kind of law was it creating?
(a) A statute
(b) Common law
(c) A constitutional amendment
(d) Administrative regulation
4. If the Congress creates a new statute with the President’s support, it must pass the idea by a
____________ majority vote in the House and the Senate. If the President vetoes a proposed statute
and the Congress wishes to pass it without his support, the idea must pass by a ____________
majority vote in the House and Senate.
(a) simple; simple
(b) simple; 2/3
(c) simple; 3/4
(d) 2/3; 3/4
5. What part of the Constitution addresses most basic liberties?
(a) Article I
(b) Article II
(c) Article III
(d) Amendments
Case Questions
1. Burglar Bob breaks into Vince Victim’s house. Bob steals a flat screen TV and laptop, and does a
significant amount of damage to the property before he leaves. Fortunately, Vince has a state of the
art security system. It captures excellent images of Bob, who is soon caught by police.
Assume that two legal actions follow, one civil and one criminal. Who will be responsible for
bringing the civil case? What will be the outcome if the jury believes that Bob did in fact burgle
Vince’s house? Who will be responsible for bringing the criminal case? What will be the outcome
this time if the jury believes that Bob burgled Vince’s house?
Answer: The civil case will be brought by Victim, and the outcome of a successful case against
2. As “The Oculist’s Case” indicates, the medical profession has faced large number of lawsuits for
centuries. In Texas, a law provides that, so long as a doctor was not reckless and did not
intentionally harm a patient, recovery for “pain and suffering” is limited to no more than $750,000.
In many other states, no such limit exists. If a patient will suffer a lifetime of pain after a botched
operation, for example, he might recover millions in compensation.
Which rule seems more sensible to you – the “Texas” rule, or the alternative?
3. You Be the Judge: WRITING PROBLEM Should trials be televised? Here are a
few arguments to add to those in the chapter. You be the judge.
Arguments against Live Television Coverage: We have tried this experiment and it has failed.
Trials fall into two categories: Those that create great public interest and those that do not. No one
watches dull trials, so we do not need to broadcast them. The few that are interesting have all
become circuses. Judges and lawyers have shown that they cannot resist the temptation to play to
the camera. Trials are supposed to be about justice, not entertainment. If a citizen seriously wants
to follow a case, she can do it by reading the daily newspaper.
Arguments for Live Television Coverage: It is true that some televised trials have been unseemly
affairs, but that is the fault of the presiding judges, not the media. Indeed, one of the virtues of
television coverage is that millions of people now understand that we have a lot of incompetent
people running our courtrooms. The proper response is to train judges to run a tight trial by
prohibiting grandstanding by lawyers. Access to accurate information is the foundation on which a
democracy is built, and we must not eliminate a source of valuable data just because some judges
are ill-trained.
4. Leslie Bergh and his two brothers, Milton and Raymond, formed a partnership to help build a fancy
saloon and dance hall in Evanston, Wyoming. Later, Leslie met with his friend and drinking buddy,
John Mills, and tricked Mills into investing in the saloon. Leslie did not tell Mills that no one else
was investing cash or that the entire enterprise was already bankrupt. Mills mortgaged his home,
invested $150,000 in the saloon—and lost every penny of it. Mills sued all three partners for fraud.
Milton and Raymond defended on the ground that they did not commit the fraud, only Leslie did.
The defendants lost. Was that fair? By holding them liable, what general idea did the court rely on?
What Anglo-Saxon legal custom did the ruling resemble?
Answer: The partners are indeed liable. Bergh v. Mills, 763 P.2d 214 (Wyo. 1988). That is the
5. Kuene v. Pub Zone and Soldano v. O’Daniels both involve attacks in a bar. Should they end in the
same way? If so, which way—in favor of the injured plaintiffs or owner-defendants? Or, should
they have different outcomes? What are the key facts that lead you to believe as you do?
Discussion Questions
1. In the 1980s, the Supreme Court ruled that it is legal for protesters to burn the American flag. This
activity counts as free speech under the Constitution. If the Court hears a new flag burning case in
this decade, should it consider changing its ruling, or should it follow precedent? Is following past
precedent something that seems sensible to you: always, usually, sometimes, rarely, or never?
2. When should a business be held legally responsible for customer safety? Consider the following
statements, and consider the degree to which you agree or disagree:
a. A business should keep customers safe from its own employees.
b. A business should keep customers safe from other customers.
c. A business should keep customers safe from themselves. (Example: an intoxicated
customer who can no longer walk straight.)
d. A business should keep people outside its own establishment safe if it is reasonable to do so.
3. In his most famous novel, The Red and the Black, the French author Stendhal (1783–1842) wrote:
“There is no such thing as ‘natural law’: this expression is nothing but old nonsense. Prior to laws,
what is natural is only the strength of the lion, or the need of the creature suffering from hunger or
cold, in short, need.” What do you think? Does legal positivism or legal realism seem more
sensible to you?
Answer: Natural law should be a question in the back of our minds throughout the course, because
4. Before becoming a Supreme Court justice, Sonia Sotomayor stated in a speech to students: “I
would hope that a wise Latina woman with the richness of her experiences would more often than
not reach a better conclusion than a white male who hasn't lived that life.” During her Senate
confirmation proceedings, this statement was heavily probed and criticized. One senator said that
the focus of the hearings was to determine whether Judge Sotomayor would “decide cases based
only on the law as made by the people and their elected representatives, not on personal feelings or
politics.” (Sotomayor convinced many of her critics, because the Senate confirmed her by a vote of
68–31.) Should judges ignore their life experiences and feelings when making judicial decisions?
5. Consider the following statements, and consider the degree to which you agree or disagree:
a. I believe that members of Congress usually try to do the right thing for America.
b. I believe that Presidents usually try to do the right thing for America.
c. I believe that Supreme Court Justices usually try to do the right thing for America.
