Appeal from Superior Court of King County. Docket No: 92-2-22573-5. Date filed: 02/02/96. Judge signing: Hon. Sally Pasette.
Authored by H. Joseph Coleman. Concurring: Mary K. Becker, Ann L. Ellington.
The opinion of the court was delivered by: Coleman
COLEMAN, J. -- On the street outside Fasano's Restaurant, James Sommerville stabbed Robert Olsowski in the stomach with a knife that he had stolen from Fasano's kitchen. Olsowski appeals the dismissal of his claim against Fasano's for negligent failure to warn him about the foreseeable assault. Olsowski argues that material issues of fact exist as to whether Fasano's janitor had reasonable time to intervene and warn Olsowski that another patron had taken the knife. Fasano's claims that it had no duty to warn because the janitor did not see the knife until Olsowski and Sommerville began fighting outside the restaurant. But because the janitor made prior statements to the police that he saw Sommerville taking the knife from the kitchen, the evidence would support a finding that Fasano's had a duty and reasonable time to warn Olsowski. Therefore, we reverse and remand for trial.
We present the facts in the light most favorable to Olsowski. Wilma Clevett and her husband are the sole shareholders of Clevett Corporation, d/b/a Fasano's Restaurant. Fasano's bar is located behind and separated from the dining area. In the early morning of February 6, 1992, Olsowski and his friend, Tim McCullough, were in the bar. When somebody hit Olsowski on the head from behind, Olsowski turned around and saw Sommerville walking away from him. Because nobody else was around, Olsowski concluded that Sommerville had hit him. Olsowski and Sommerville began to fight. When Clevett was accidentally hit, Olsowski stopped punching and apologized to her. Sommerville angrily left the bar area, and Clevett told Olsowski and McCullough to leave as well. Clevett ushered them out of the bar. When Olsowski and McCullough went outside, Sommerville stabbed Olsowski in the stomach with a knife that he had taken from Fasano's kitchen.
Charles Wallick, Fasano's night janitor, gave inconsistent reports of the events that he witnessed. In a 1995 deposition, Wallick relayed the following story. While he was sitting in the restaurant area, Wallick saw a stranger go into the kitchen. The man came back out five seconds later, hiding something under his jacket, and went out into the street. As Olsowski and McCullough rushed by, Wallick heard one of them ask, "Where did he go?" When the two men got outside, they encountered Sommerville. Through the window Wallick saw for the first time that Sommerville had a knife. Wallick then called 911.
Wallick's above story is contradicted by his 911 call and sworn statement to the police. The 911 transcript reads as follows:
Dispatcher "Emergency what are you reporting?"
Caller "got a fight out here in front of Fasano's"
Dispatcher "what's going on?"
Caller "fight in front of Fasano's"
Caller "went into the kitchen and got a knife"
Dispatcher "there's three? Which one's got a knife?"
Caller "one of them got a, got a dark kinda ...