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Reichert v. Atler12/18/1992
DONNELLY, Judge.
The previous opinion of the Court, filed on November 17, 1992, is withdrawn and the following is substituted.
Defendants, Tony and Josie Atler, doing business as the A-Mi-Gusto Lounge, appeal from a judgment entered by the district court following a bench trial, which awarded Plaintiff damages for the wrongful death of a patron. Defendants raise three issues on appeal: (1) whether the failure to join an indispensable party constitutes a jurisdictional defect requiring reversal; (2) whether there was substantial evidence indicating that Defendants had notice that the decedent was in danger; and (3) whether the amount of the award against Defendants should be reduced under the doctrine of comparative fault. Defendants have abandoned a fourth issue raised in their docketing statement. See ) (issues listed in the docketing statement but not briefed are deemed abandoned). Affirmed in part and reversed in part.
On the evening of December 20, 1985, Alfredo Castillo (Castillo), Plaintiff's decedent, arrived at the A-Mi-Gusto Lounge (Lounge) in Bernalillo County. When Castillo entered the Lounge between 7:00 and 8:00 p.m., it was crowded with approximately 100 customers.
Shortly after arriving at the Lounge, Castillo became embroiled in an argument with another patron, Pablo Ochoa (Ochoa). Ochoa had been on the premises since mid-afternoon, drinking and playing pool. The altercation occurred in front of Deborah Espinosa (Espinosa), a Lounge employee and the daughter of Defendants. The argument was suspended when Castillo asked Espinosa to cash a check; however, it soon resumed. Espinosa made no attempt to intervene or summon the police. As the argument escalated, Ochoa produced a pistol and shot Castillo six times, causing his death. At the time of the shooting, Defendants had only one employee to provide security; however, the security guard was not present and was not scheduled to go on duty until 9:00 p.m. Another employee made a visual inspection of patrons as they entered the Lounge.
Plaintiff, as Personal Representative of the Estate of Alfredo Castillo, brought suit against Defendants for wrongful death. Following a trial on the merits, the district court adopted findings of fact and Conclusions of law determining that Defendants, as owners of the Lounge, owed a duty to Castillo and their patrons to provide adequate security and staff to protect them from unreasonable and foreseeable risks of danger; that Defendants were aware of Ochoa's propensity for
violent behavior; and that Defendants and their employees failed to properly respond to the argument or to take appropriate security measures. Based upon its findings of negligence, the district court entered a judgment awarding damages against Defendants in the amount of $268,300, together with costs. Castillo was not found to have been contributorily negligent.
Subsequent to the entry of judgment, the district court also adopted alternative findings of fact and Conclusions of law finding that Castillo's death was proximately caused by the concurrent fault of Defendants and Ochoa; and that the "Defendants, Tony Atler and Josie Atler [were] thirty-three and one third (33 1/3) per cent at fault and Pablo Ochoa sixty-six and two thirds (66 2/3) per cent at fault in connection with the death of Alfredo Castillo." The alternative findings of fact and Conclusions of law adopted by the district court, however, were not incorporated into its judgment.
I. INDISPENSABLE PARTY
Defendants deny that they were the owners of the Lounge at the time of
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