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Daley v. Wenzel8/30/2001
truction, detailed their claims against The Lounge Bar and alleged negligence:
(1) for ignoring Beverly Wenzel's intoxicated state;
(2) by allowing her to fall asleep on a bar stool;
(3) by moving her to a chair after she slid off the bar stool;
(4) by moving her to the beer cases;
(5) by failing to convey proper in formation to 911 and to the police officers; and
(6) in caring for Wenzel after she slid off the barstool.
Wenzels' Instruction No. 19 stated that The Lounge Bar, as an owner and occupier of land, had a duty of reasonable care to Beverly while she was on the premises. Wenzels' Instruction No. 21 provided that a business whose employees are reasonably on notice that a customer is in distress and in need of emergency medical attention has a legal duty to come to the assistance of that customer. Additionally, the jury received Instruction Nos. 6, 7, 8, 9, 10, and 12, the Wyoming Pattern Jury Instructions for: the elements of negligence; causation; the plaintiff's burden of proof for negligence; the defendants' burden of proof for comparative fault; and the concept of comparative fault.
[ ] Taken together, these instructions clearly indicated that The Lounge Bar could be liable for breaching a duty of reasonable care to Beverly, as a business invitee, and for failing to summon medical assistance. The instructions also indicated that The Lounge Bar could not be liable for injuries resulting from Beverly's intoxication. These instructions correctly stated the law, and Instruction 24 was the direct result of counsels' persistent attempts to "poison the well" during trial. Under the circumstances of this case, the instruction was properly given. When all instructions are considered together, it is apparent there was no prejudice.
[ ] The situation here is at least somewhat analogous to those in which this Court has considered the invited error doctrine. Here, Wenzels effectively set up the necessity for this instruction by their continued inferences that liability could attach for negligent serving of alcohol. This despite the fact that the trial court had earlier determined and ordered this was not the case. Having created this difficult situation, Wenzel now complains that the trial court took steps to clarify the issue for the jury. Except in a situation where the error was necessarily prejudicial, we will not order a new trial under such circumstances. Vanvorst v. State, 1 P.3d 1223, 1229-30 (Wyo. 2000); Sanville v. State, 593 P.2d 1340, 1344-45 (Wyo. 1979).
[ ] The judgment of the district court is affirmed in all respects.
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