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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

TANYA OSHATZ, a single person,              ) 
                                            )       No. 66101-9-I
                      Appellant,            )
              v.                            )       DIVISION ONE
                                            ) 
GINSING, LLC, dba WILD GINGER               )
and THE TRIPLE DOOR;                        )
                                            )
                      Respondents,          )
                                            )       UNPUBLISHED OPINION 
              and                           )
                                            )       FILED: May 14, 2012
BRADLEY AARON CROSSEN and                   )
JANE DOE CROSSEN, and the marital  )
community composed thereof,                 )
                                            )
                      Defendants.           )
________________________________) 

       Becker, J.  --  Appellant Tanya Oshatz appeals a grant of summary 

judgment in favor of GinSing LLC, parent company to Wild Ginger restaurant 

and The Triple Door bar in downtown Seattle.  Soon after she had dinner at Wild 

Ginger, Oshatz was assaulted on the sidewalk outside of The Triple Door by 

Bradley Crossen, a man who had just been ejected from the bar because of his 

aggressive and assaultive behavior inside the bar.  Oshatz does not establish 

the existence of a legal duty owed to her by GinSing in these circumstances.   

No. 66101-9-I/2

We affirm the order of dismissal.

       On appeal, the appellate court reviews a summary judgment order de 

novo and therefore engages in the same inquiry as the trial court.  Christiano v. 

Spokane County Health Dist., 93 Wn. App. 90, 93, 969 P.2d 1078 (1998), review

denied, 163 Wn.2d 1032 (1999).  Summary judgment is appropriate if, after 

viewing the pleadings and record and drawing all reasonable inferences in favor 

of the nonmoving party, the court finds there is no genuine issue of material fact 

and the moving party is entitled to judgment as a matter of law.  Higgins v. 

Stafford, 123 Wn.2d 160, 168-69, 866 P.2d 31 (1994). 

       Viewed in the light most favorable to Oshatz, the record shows that 

Bradley Crossen drank great quantities of alcohol of various kinds after work on 

Sunday, June 21, 2009.  Later, Crossen and a companion ended up at The 

Triple Door bar in downtown Seattle.  Crossen recalls that he was drunk when 

he arrived and that he had some more to drink at The Triple Door, but he does 

not remember how he got the drinks.  The record contains no evidence that any 

drinks were supplied to Crossen by employees of The Triple Door.  A bartender 

recalls that she nearly served him when he attempted to buy his own drink at the 

bar, but she says she poured the drink out when she realized that he was 

becoming rude and aggressive. 

       Crossen became angry after the bartender denied him a drink.  Bar 

employees observed Crossen physically push a patron and make physically 

assaultive threats to another bar patron.  Bar employees quickly intervened.

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No. 66101-9-I/3

Two or three of them "isolated Crossen so he could not go after anyone." They

led him to the exit and escorted him outside. According to the bar employees, 

Crossen became calm and nonaggressive after being taken outside.

       This was about 11:15 p.m.  Around this same time, Tanya Oshatz and her 

mother were leaving the Wild Ginger restaurant after having eaten dinner there.  

Wild Ginger and The Triple Door are contiguous, co-owned businesses located 

at the intersection of Third Avenue and Union Street in downtown Seattle.  The 

two businesses share employees, supplies, materials, and equipment.  Wild 

Ginger prepares food and beverages which are served at The Triple Door. 

       As Oshatz and her mother walked down the sidewalk on Third Avenue in 

front of The Triple Door, they paused to read the inscription on the side of 

Benaroya Hall across the street.  They had not yet decided whether to go into

The Triple Door or return to their car parked on First Avenue.  Suddenly, 

Crossen stepped in front of Oshatz, approximately six inches from her face, and 

said loudly, "Whoa . . . where did YOU come from?" Crossen bent down,

grabbed Oshatz around the knees, lifted her up, and threw her over his 

shoulder.  Oshatz fell to the pavement on her right shoulder and was injured.  

       The bar's doorman and another bar employee witnessed the incident and 

ran over to help Oshatz.  The doorman states that Crossen began pushing him 

and shouting at him.  Bar employees kept Crossen on the scene after the police 

were called.  The police arrived and arrested Crossen.  Oshatz was taken away 

by ambulance for medical treatment.  Crossen was later prosecuted and 

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No. 66101-9-I/4

convicted of third degree assault. 

       On October 16, 2009, Oshatz filed a complaint against GinSing and 

Crossen. On May 12, 2010, Oshatz transmitted discovery requests to GinSing.  

She sought information concerning the identity of all employees on duty on the 

night in question; any written policies, procedures or guidelines relating to 

controlling and/or ejecting intoxicated or unruly customers and calling police to 

the premises; any information concerning previous complaints or lawsuits

concerning similar incidents, inside or within 50 feet outside the entrance to the 

premises; and any receipts for food or beverages purchased by Crossen or his 

companion on the night in question.  

       On June 4, 2010, GinSing moved for summary judgment on several 

theories, including absence of duty.  Oshatz, responding, argued that GinSing 

owed her a duty as a business invitee.  She also asked for extra time under CR 

56(f) on the basis that GinSing had failed to respond to her discovery requests.  

The court entered an order requiring GinSing to provide complete discovery 

answers within 7 days and allowing Oshatz 21 days thereafter to provide 

additional briefing on "material issues raised thereby."  GinSing answered the 

discovery requests.  Oshatz submitted additional evidentiary materials and a 

supplemental brief, none of which related to the newly supplied discovery 

answers.

        The court granted summary judgment in favor of GinSing on September 

7, 2010.  Oshatz filed this appeal.

                                              4 

No. 66101-9-I/5

       Negligence has four elements:  duty, breach, causation, and damages.  

Harbeson v. Parke-Davis, Inc., 98 Wn.2d 460, 468, 656 P.2d 483 (1983). At 

issue in this case is the element of duty.

       In her complaint, Oshatz alleged various theories of negligence against 

GinSing, including negligent overservice of alcohol; negligent failure to enact or 

follow policies or procedures designed to control intoxicated customers; and 

negligent failure to cure or warn business invitees of dangerous conditions "on 

or near business property."  Oshatz alleged GinSing acted negligently when its 

employees failed to escort Crossen "out of and away from the premises" before 

he became assaultive and when they failed to respond to Crossen's increasingly 

belligerent behavior by contacting the police "or otherwise detaining him in a 

way that he no longer posed a threat to others." 

       We first address the allegation of negligent overservice of alcohol.

Oshatz contends that GinSing served liquor to Crossen when he was 

"apparently under the influence," thereby incurring liability under Faust v. 

Albertson, 167 Wn.2d 531, 539, 222 P.3d 1208 (2009).  We reject this theory for 

two reasons.  First, it was not presented to the trial court. RAP 2.5(a). "On 

review of an order granting or denying a motion for summary judgment the 

appellate court will consider only evidence and issues called to the attention of 

the trial court." RAP 9.12.  Second, while it is undisputed that Crossen was very 

drunk when he arrived at The Triple Door, there is no evidence that Crossen 

was actually served alcohol by any employee of GinSing.  His own testimony 

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No. 66101-9-I/6

does not support an inference that he was served; he testified only that he 

consumed drinks at The Triple Door and that he did not recall how he got them.  

       We next address the theory that GinSing, by failing to protect Oshatz from 

Crossen, breached a duty owed to Oshatz as a business invitee or as a member 

of the public.  Oshatz contends GinSing's employees breached a duty owed to 

her when they ejected Crossen from The Triple Door onto the sidewalk, knowing 

that he had been pugnacious and assaultive inside the bar, yet failing to ensure 

that he did not continue that behavior to the detriment of customers or others 

who were lingering just outside the door.

       As a preliminary step in our analysis of this issue, we disagree with 

GinSing's contention that because Crossen was an intentional tortfeasor, 

GinSing has an absolute defense under Tegman v. Accident & Medical 

Investigations, Inc., 150 Wn.2d 102, 75 P.3d 497 (2003).  Tegman prevents a 

negligent defendant from being held jointly and severally liable with a co-

defendant whose intentional actions were a proximate cause of the same injury.  

Tegman, 150 Wn.2d at 115-19.  Because the Tegman rule comes into play only 

after a defendant's liability for negligence has been established, it is irrelevant to 

the issue in this appeal.  

       Reading somewhat between the lines, we discern that what GinSing 

actually means to argue is that Crossen's criminal act was a superseding cause 

breaking the chain of causation as a matter of law.  The criminal or intentional 

misconduct of a third party does not act as a superseding cause when the 

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No. 66101-9-I/7

plaintiff is proceeding under a theory of duty that permits a defendant to be held 

liable for damage caused by the intentional misconduct of third parties.  For 

example, it is well established that a bar can be liable to a customer who is 

assaulted by another patron, if the assault was reasonably foreseeable in light of 

what the bar knew or should have known about the assailant's violent 

tendencies.  Christen v. Lee, 113 Wn.2d 479, 504-05, 780 P.2d 1307 (1989). In 

such a case, the intentional criminal act of assault is not a superseding cause 

precluding liability on the part of the bar.  And in any event, such an argument 

does not implicate Tegman.  

       Because we regard the Tegman argument as irrelevant, we do not 

address the parties' debate about whether Crossen's mental state should be 

described as intentional or as negligent.  Instead, our focus is to determine 

whether GinSing owed Oshatz a duty, either as an invitee or as a member of the 

public.

       One way in which Oshatz attempted to establish such a duty was by 

submitting a declaration by an expert witness, restaurateur Gordon Naccarato.  

Naccarato declared that the duty of a restaurant and bar to exercise reasonable 

care for the safety of its customers extends to the area immediately outside the 

establishment, "at least where the restaurant owner or operator has specific 

knowledge of an actual danger which the customers lack."

       One problem with using Naccarato's declaration is that it was not 

submitted to the trial court along with Oshatz's initial response to GinSing's 

                                              7 

No. 66101-9-I/8

motion for summary judgment.  It was submitted after the court gave Oshatz 

extra time to brief matters related to GinSing's belated answers to discovery.  

The declaration of Naccarato did not relate to the discovery answers. Oshatz 

has not explained why the declaration could not have been submitted at the time 

of her initial response.  A second problem is that while the standard of care can 

be established by expert testimony such as Naccarato's, the existence of a duty 

cannot.  The existence of a duty is a question of law which must be determined 

by the court.  See Keates v. City of Vancouver, 73 Wn. App. 257, 265, 869 P.2d 

88, review denied, 124 Wn.2d 1026 (1994).

       A serious difficulty with Oshatz's briefing is that her theories of duty vary 

and multiply with each iteration. Her theories before the trial court can generally 

be separated into three categories:  the bar owed a duty to (1) protect Oshatz in 

her capacity as an invitee -- both from "dangerous conditions" and from criminal 

actions of third parties "on or near business property"; (2) control Crossen as 

someone with whom the bar had a special relationship; and (3) protect the public 

from criminal actions by third parties where the business's own actions 

affirmatively bring about an especial temptation and opportunity for criminal 

misconduct.  

       Oshatz's briefs on appeal do not mention the third theory.  Accordingly, 

we regard it as abandoned.  In any event, the theory is a weak one.  We observe 

no facts in the record suggesting that the bar did anything to create a special 

opportunity for criminal misconduct by simply removing Crossen from the bar 

                                              8 

No. 66101-9-I/9

and placing him back on the street where he originally came from.  

       In her reply brief on appeal, Oshatz does mention the second theory, that 

the bar was subject to a "take charge" duty to control Crossen and prevent him 

from injuring others.  We find this argument unpersuasive in addition to being 

late.  For a "take charge" duty to exist, there must be a "'definite, established and 

continuing relationship between the defendant and the third party.'"  Taggart v. 

State, 118 Wn.2d 195, 219, 822 P.2d 243 (1992), quoting Honcoop v. State, 111 

Wn.2d 182, 193, 759 P.2d 1188 (1988).  No such established and continuing

relationship exists between a bar and the patrons who choose to enter it on any 

given night.  

       This leaves the theory that Oshatz was a business invitee.  In the trial 

court, she cited Nivens v. 7-11 Hoagy's Corner, 133 Wn.2d 192, 943 P.2d 286

(1997).  Oshatz has not cited Nivens on appeal, but it is fair to recognize that 

Nivens was the beginning point for her argument below about duty.  What can 

be learned from Nivens is that as a general rule, a person has no legal duty to 

prevent a third party from intentionally or criminally harming another.  Nivens, 

133 Wn.2d at 199. The relationship between a business owner and an invitee is 

a special relationship that creates an exception to this general rule.  A business 

owes an invitee a duty to control the business premises, not only with respect to 

keeping them free of physical hazards, but also with respect to preventing the 

invitee from being harmed by third persons:  

              What we have impliedly recognized in earlier cases, we now 
       explicitly hold: a special relationship exists between a business 
       and an invitee because the invitee enters the business premises 

                                              9 

No. 66101-9-I/10

       for the economic benefit of the business.  As with physical hazards 
       on the premises, the invitee entrusts himself or herself to the 
       control of the business owner over the premises and to the conduct 
       of others on the premises. . . . We discern no reason not to extend 
       the duty of business owners to invitees to keep their premises 
       reasonably free of physically dangerous conditions in situations in 
       which business invitees may be harmed by third persons.

Nivens, 133 Wn.2d at 202-03 (footnote omitted). 

       Assuming that a jury could find that Oshatz was an invitee of GinSing at 

the time of the assault, her injury took place off of the owned premises.  

Nowhere in the opening appellate brief submitted by Oshatz in January 2011 is 

there any argument presented for expanding the duty described in Nivens so 

that the owner is responsible for injuries occurring off the owned premises.

       After Oshatz filed this appeal and both parties submitted their initial briefs, 

Oshatz sought and received a default judgment against Crossen.  Oshatz then 

sought leave to file an amended opening brief in this appeal.  A commissioner of 

this court granted her request on June 6, 2011, but limited the amended briefing 

to "no more than an additional 10 pages addressing what impact, if any, the 

entry of the default judgment has upon the assignments of error raised in the 

initial opening brief."  Oshatz then submitted an amended opening brief in which 

she included six new pages under the existing heading of "The Moving Party's 

Burden In A Motion For Summary Judgment." Appellant's Amended Opening 

Brief, June 20, 2011, pp. 29-34.  The content added by these new pages had 

nothing to do with the impact of the default judgment against Crossen.  Instead, 

Oshatz cited cases primarily from other jurisdictions indicating that the duty 

                                              10 

No. 66101-9-I/11

owed to a business invitee may under some circumstances extend to injuries 

that occur on adjacent premises, off of the owned premises.  The inclusion of 

pages 29-34 in Oshatz's amended opening brief was a clear violation of the 

scope of this court's order permitting amended briefing as their content does not 

relate to the issue on which amended briefing was permitted.  Even if we were to 

view these pages as a submission of additional authorities under RAP 10.8, we 

would decline to consider them because Oshatz has not made an argument that 

stakes out a position on the issue of off-premises liability.  Merely supplying a 

collection of cases is too amorphous to define the contours of the duty Oshatz 

would have us recognize.  It would be unfair to expect GinSing to respond to an 

unstated argument, especially when responding to a brief that was supposed to 

be limited to the impact of the default judgment against Crossen. 

       In her reply brief, Oshatz continued to expand her theories by citing 

Groves v. City of Tacoma, 55 Wn. App. 330, 777 P.2d 566 (1989).  In Groves, 

the court held that an abutting landowner who uses a public sidewalk for his or 

her own "special purpose" and creates a dangerous condition by virtue of that 

use, can be held liable to one foreseeably injured by that dangerous condition.  

Groves, 55 Wn. App. at 333.  Oshatz raises this "special purpose" theory for the 

first time in her reply brief on appeal.  This is simply too late to merit 

consideration.

       Affirmed.

                                              11 

No. 66101-9-I/12

WE CONCUR:

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