              IN THE SUPREME COURT OF IOWA
                                No. 11–0085

                             Filed April 5, 2013


CURTIS GENE HOYT,

      Appellant,

vs.

GUTTERZ BOWL & LOUNGE L.L.C.,

      Appellee.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Guthrie County, Bradley

McCall, Judge.



      The plaintiff brought a negligence action alleging he was assaulted

and injured on the defendant’s premises. The district court granted the

defendant’s motion for summary judgment and the court of appeals

reversed. Defendant sought, and this court granted, further review of the

decision of the court of appeals. DECISION OF COURT OF APPEALS

AFFIRMED; DISTRICT COURT JUDGMENT REVERSED AND CASE

REMANDED.



      Gary D. Dickey Jr. of Dickey & Campbell Law Firm, PLC,

Des Moines, for appellant.


      Mark J. Wiedenfeld and James W. Russell of Wiedenfeld &

McLaughlin, L.L.P., Des Moines, for appellee.
                                      2

HECHT, Justice.

      The plaintiff sued a bar for injuries sustained when he was

assaulted in the bar’s parking lot. The district court granted summary

judgment in favor of the bar. The court of appeals reversed the district

court’s   ruling,   concluding   questions      of    fact    precluded    summary

judgment. On further review, we affirm the court of appeals decision and

reverse the district court’s grant of summary judgment.

      I. Factual and Procedural Background.

      The summary judgment record taken in the light most favorable to
plaintiff–appellant   Hoyt   supports     the        following   factual   findings.

Defendant–appellee Gutterz Bowl & Lounge (Gutterz) is a bowling alley

and tavern located in Guthrie Center, Iowa. On March 20, 2009, Curtis

Hoyt and several members of his construction crew finished work and

went to Gutterz for refreshments. Curtis Knapp was also a customer at

Gutterz that afternoon.      Hoyt soon came to believe that Knapp was

scowling at him.      Hoyt and Knapp had formerly been friendly, but

tension had arisen between them as a result of Hoyt’s alleged

mistreatment of the sister of Knapp’s friend.                The record reveals no

evidence tending to prove the staff of Gutterz had any knowledge of this

history between Hoyt and Knapp.

      After consuming a few beers, Hoyt and coworker Chris Brittain

approached and verbally confronted Knapp. Knapp did not respond and

continued to scowl at Hoyt.       The waitress serving Hoyt and Brittain

observed their behavior with concern and threatened to discontinue

serving them unless they calmed down. Hoyt and Brittain ignored the

waitress’s warning and thus she requested and secured permission from
Gutterz’s owner, Rodney Atkinson, to discontinue serving them.

Atkinson, who had been preparing food in the kitchen, went to the bar
                                          3

area to assess the situation. Hoyt and Brittain complained to Atkinson

that they were no longer being served and continued to taunt Knapp.

       Shortly thereafter, Atkinson grew concerned that an altercation

might occur. He requested that Hoyt and Brittain leave.1 Hoyt finished

his beer and exited the tavern. As Hoyt walked through the parking lot

toward his vehicle, somebody approached him from behind and struck

him in the back of the head, knocking him unconscious. Hoyt suffered

several injuries including a compound fracture of his ankle.                   Knapp

admitted to police who later arrived on the scene that he had struck
Hoyt, but claimed he had done so in self-defense.2

       On September 25, 2009, Hoyt filed this action alleging that Knapp

and Gutterz were liable for the injuries he sustained when Knapp

assaulted him. Gutterz moved for summary judgment, alleging Gutterz

owed Hoyt no duty of reasonable care, there was no evidence of a breach

of any duty, and the assault by Knapp and Hoyt’s injury were not

foreseeable.    The district court granted Gutterz’s motion for summary

judgment and dismissed Gutterz from the lawsuit.                 The district court

found as a matter of law that the assault in the parking lot and Hoyt’s

resulting injury were not foreseeable to Gutterz.             Having found Hoyt’s

injury was not foreseeable to Gutterz, the district court further found

       insufficient evidence to generate a genuine issue of material
       fact on the question of whether Gutterz employees failed to
       exercise reasonable care to discover the likelihood of harm or




       1Atkinson’s account suggests he escorted the men to their trucks in the parking
lot and returned to the kitchen. Hoyt and Brittain instead recalled that after Atkinson
ordered them to leave, they exited the tavern and walked themselves to their vehicles.
        2The police ultimately charged both Hoyt and Knapp with disorderly conduct as

a result of the incident.
                                          4
       failed to provide an adequate warning after discovering a
       potential danger to Hoyt.3

       We granted Hoyt’s application for interlocutory appeal, and we

transferred the case to the court of appeals.               The court of appeals

reversed the district court’s summary judgment ruling. In reversing, the

court of appeals cited our opinion in Thompson v. Kaczinski, 774 N.W.2d

829 (Iowa 2009). In Thompson, we adopted the general duty formulation

set forth in section 7 the Restatement (Third) of Torts: Liability for

Physical and Emotional Harm and explained that “the assessment of the

foreseeability of a risk” is no longer part of the duty analysis in

evaluating a tort claim, and instead is to be considered when the fact

finder decides whether a defendant has failed to exercise reasonable

care. Id. at 835. Consistent with its understanding that foreseeability is

no longer part of the duty determination, the court of appeals applied

section 40 of the Restatement (Third), entitled “Duty Based on Special

Relationship With Another,” in analyzing Hoyt’s claim.                   Concluding

Gutterz owed Hoyt a duty under section 40 and finding Hoyt had raised

fact questions as to foreseeability related to the issues of breach of duty

and scope of liability, the court of appeals reversed the summary

judgment ruling. We granted Gutterz’s application for further review.

       II. Scope of Review.

       The district court’s ruling on a motion for summary judgment is

reviewed for correction of errors of law. Id. at 832. A party is entitled to

summary judgment when the record shows no genuine issue of material

fact and that the moving party is entitled to a judgment as a matter of

       3In reaching its conclusion, the court applied section 344 of the Restatement
(Second) of Torts, entitled “Business Premises Open to Public: Acts of Third Persons or
Animals.”
                                     5

law. Iowa R. Civ. P. 1.981(3). On a motion for summary judgment, the

court must: “(1) view the facts in the light most favorable to the

nonmoving party, and (2) consider on behalf of the nonmoving party

every legitimate inference reasonably deduced from the record.”        Van

Fossen v. MidAmerican Energy Co., 777 N.W.2d 689, 692 (Iowa 2009).

      III. Discussion.

      Hoyt contends the district court erred in concluding as a matter of

law that Gutterz did not breach a duty of reasonable care under these

circumstances.     Further, Hoyt contends, the district court erred in its
consideration of foreseeability of injury to Hoyt in making its summary

judgment ruling.     Gutterz urges that the summary judgment ruling

should be affirmed because: (1) the district court correctly analyzed the

question of duty, (2) even if a duty existed, Gutterz acted reasonably as a

matter of law, and (3) Hoyt’s injuries here were, as a matter of law,

outside the scope of harms typically resulting from the risks associated

with Gutterz’s conduct.

      A.   Duty.    Before examining the record for a factual question

regarding whether Gutterz breached a duty to Hoyt, we must consider

whether Gutterz owed Hoyt a duty of care, and if so, the nature of that

duty under these circumstances. While summary adjudication is rarely

appropriate in negligence cases, the determination of whether a duty is

owed under particular circumstances is a matter of law for the court’s

determination. Thompson, 774 N.W.2d at 834; Sankey v. Richenberger,

456 N.W.2d 206, 207 (Iowa 1990). Traditionally, Iowa courts examining

whether a landowner has a duty to protect visitors from the conduct of

third parties relied upon section 344, comment f, of the Restatement
(Second) of Torts to conclude that a property owner “is ordinarily under

no duty to exercise any care until he knows or has reason to know that
                                        6

the acts of the third person are occurring, or are about to occur.”

Galloway v. Bankers Trust Co., 420 N.W.2d 437, 438 (Iowa 1988);

Martinko v. H-N-W Assocs., 393 N.W.2d 320, 322–23 (1986); Restatement

(Second) of Torts § 344 cmt. f, at 225 (1965) [hereinafter Restatement

(Second)]. That general proposition was subject to the caveat that a duty

would be imposed in scenarios where the property owner knew or had

reason to know of a likelihood of third party conduct that could endanger

visitors or where the place or character of the business was such that the

property owner should reasonably anticipate careless or criminal
conduct by third parties.     Galloway, 420 N.W.2d at 439–40; Martinko,

393 N.W.2d at 322–23; Restatement (Second) § 344 cmt. f, at 225–26.

      Recently, in Thompson, we examined not a landowner–visitor

scenario, but a scenario in which the trampoline of a landowner had

been blown by high winds into a nearby roadway, obstructing the travel

of and causing injury to a driver. 774 N.W.2d at 831–32. We questioned

and then rejected an assessment of foreseeability of risk in determining

whether the landowner owed the driver a duty. We adopted the general

duty formulation of section 7 of the Restatement (Third) and explained:

      An actor ordinarily has a duty to exercise reasonable care
      when the actor’s conduct creates a risk of physical harm.
      Thus, in most cases involving physical harm, courts need
      not concern themselves with the existence or content of this
      ordinary duty, but instead may proceed directly to the
      elements of liability set forth in section 6 [of the Restatement
      (Third)]. The general duty of reasonable care will apply in
      most cases, and thus courts can rely directly on section 6
      and need not refer to duty on a case-by-case basis.

Id. at 834–35 (citations and internal quotation marks omitted).             We

joined the drafters of the Restatement (Third) in explicitly disapproving of

the   use   of   foreseeability,   or   lack   thereof,   in   making   no-duty
determinations.     Id. at 835.     Instead, we explained, no-duty rulings
                                       7

should be limited to exceptional cases in which “ ‘an articulated

countervailing principle or policy warrants denying or limiting liability in

a particular class of cases.’ ” Id. (quoting Restatement (Third) of Torts:

Liability for Physical & Emotional Harm § 7(b), at 77 (2010) [hereinafter

Restatement (Third)]).       Such reasons of principle or policy justifying

departure from a general duty to exercise reasonable care would not

depend on the foreseeability of harm in any given case.         Id.   Instead,

assessment of foreseeability should be allocated to the fact finder, as part

of its determination of whether appropriate care has been exercised in
any given scenario. Id.

      Section 40 of the Restatement (Third) describes duty principles,

some of which overlap with section 7’s general duty, more specifically for

special relationships such as landowner–visitor or business–patron

relationships, as follows:

            (a) An actor in a special relationship with another owes
      the other a duty of reasonable care with regard to risks that
      arise within the scope of the relationship.

            (b) Special relationships giving rise to the duty
      provided in Subsection (a) include:

                    (1) a common carrier with its passengers,

                    (2) an innkeeper with its guests,

                     (3) a business or other possessor of land that
               holds its premises open to the public with those who
               are lawfully on the premises,

                    ....

Restatement (Third) § 40, at 39 (2012). Comment g explains that section

40’s contemplated duties apply even in cases involving harm caused by a

third party:

      The duty described in this Section applies regardless of the
      source of the risk. Thus, it applies to risks created by the
                                           8
       individual at risk as well as those created by a third party’s
       conduct, whether innocent, negligent, or intentional.

Id. § 40 cmt. g, at 42. Therefore, comment j explains, “[b]usinesses . . .

who hold their land open to the public owe a duty of reasonable care to

persons lawfully on their land who become ill or endangered by risks

created by third parties.”       Id. § 40 cmt. j, at 43–44.         Section 40 thus

modifies the general proposition of section 37 that actors typically owe no

duty to protect victims from the conduct of third parties,4 and clarifies

that a duty of reasonable care applies as a result of these special

relationships.

       For the same reasons we found the Restatement (Third) compelling

in Thompson, we find it compelling in the tavern owner–patron context.

Recognizing that a duty exists whenever an actor has created a risk of

harm and that risks arise out of the special relationships contemplated

by section 40 encourages simplicity and predictability. Limiting no-duty

rulings to exceptional problems of policy or principle promotes judicial

transparency, encouraging judges to justify in explicit terms any reasons

for declining to impose a duty in a given scenario.                  Thompson, 774

N.W.2d at 835 (citing Restatement (Third) § 7 cmt. j, at 82).                 Further,

foreseeability is central to the fact finder’s inquiries regarding breach and
the range of harms for which an actor may be liable. Any overlap in the

duty inquiry is likely to be redundant and confusing, and may well

frustrate longstanding rationales for specific allocations of decision-

making power between the judge and jury.                    Id. at 835 (removing

        4Section 37 states a principle complementary to the general duty principle of

section 7: there is no duty of care when another is at risk for reasons other than those
created by an actor’s conduct. As contemplated by sections 7 and 19, an actor’s
conduct may create risk by exposing another to the improper conduct of third parties.
All risks created by an actor’s conduct or course of conduct must be evaluated in
determining whether the section 37 principle applies.
                                            9

foreseeability from the duty analysis “ ‘protect[s] the traditional function

of the jury as fact finder’ ” (quoting Restatement (Third) § 7(b) cmt. j, at

98–99)); 1 Dan B. Dobbs, The Law of Torts § 159, at 503–04 (2d ed. 2011)

(“Foreseeability [of harm] is seldom if ever a pure fact . . . [and] is

normally a jury question.”).           The redundancy also gives rise to the

possibility that judge and jury may reach inconsistent results regarding

foreseeability, at odds with goals of procedural fairness, predictability,

and treating like cases alike. For these reasons, we emphasize again our

adoption of the duty analysis of the Restatement (Third).
       The district court clearly considered the foreseeability of the

assault and Hoyt’s resulting injury in granting summary judgment for

Gutterz,    but    whether      the   judgment       was    based     on    a   no-duty

determination or a reasonable care determination is less clear.5

Removing foreseeability from the duty analysis, we must consider

whether some principle or strong policy consideration justifies exempting

Gutterz, or the class of tavern owners in general, from the duty to

exercise reasonable care. The parties have not advanced, and we cannot

discern, any such considerations compelling exemption of tavern owners

from the duty. Tavern owners fit squarely within the class of business

owners contemplated by section 40(b)(3). Section 40 enumerates several

justifications for requiring business owners to exercise due care:

        5As noted above, the district court specifically found there was insufficient

evidence to raise a fact question regarding whether Gutterz employees had exercised
reasonable care. In describing the applicable law, however, the court explained that “in
construing the duty of the possessor of land the Iowa Supreme Court, in Martinko v. H-
N-W Assocs., 393 N.W.2d 320 (Iowa 1986), observed that the ultimate issue for
determining liability is one of foreseeability.” The parties appear to disagree on appeal
as to the meaning of the district court’s findings. Gutterz argues that the district court
correctly found no duty based on lack of foreseeability, while Hoyt takes issue with the
court’s foreseeability determination without specifying whether the court made the
finding in the duty inquiry or the reasonable care inquiry.
                                    10
      [T]he relationship identifies a specific person to be protected
      and thus provides a more limited and justified incursion on
      autonomy, especially when the relationship is entered into
      voluntarily.    In addition, some relationships necessarily
      compromise a person’s ability to self-protect, while leaving
      the actor in a superior position to protect that person. Many
      of the relationships also benefit the actor.

Restatement (Third) § 40 cmt. h, at 43.         We are convinced these

justifications are applicable to tavern owners and decline to exempt them

from the duty to exercise reasonable care.      Accordingly, we conclude

Gutterz owed Hoyt a duty of reasonable care under the circumstances

presented here. We now turn to the question of whether Hoyt raised a

genuine issue of material fact regarding the alleged breach of this duty.

      B.   Reasonable Care.    Hoyt contends the district court erred in

concluding Gutterz had not, as a matter of law, failed to exercise

reasonable care. Gutterz counters that it acted reasonably.

      While taverns are not insurers of patrons’ safety against third-

person criminal attacks, various jurisdictions have explained taverns

must make reasonable efforts to maintain order and supervise and

control patrons.   See, e.g., Gunter v. Vill. Pub, 606 N.E.2d 1310, 1312

(Ind. Ct. App. 1993); Sweenor v. 162 State St., Inc., 281 N.E.2d 280, 281–

82 (Mass. 1972); Mettling v. Mulligan, 225 N.W.2d 825, 827–28 (Minn.
1975); Flynn v. Audra’s Corp., 796 N.W.2d 230, 232–33 (Wis. Ct. App.

2011); see also Restatement (Second) § 344 cmt. f, at 225–26.           The

Restatement (Third) adds that in situations involving section 40

affirmative duties, section 3’s reasonable care analysis may be applied in

determining whether a particular failure to act is unreasonable.

Restatement (Third) § 3 cmt. c, at 30. Section 3 explains that a person

      acts negligently if the person does not exercise reasonable
      care under all the circumstances. Primary factors to consider
      in ascertaining whether the person’s conduct lacks
      reasonable care are the foreseeable likelihood that the
                                          11
       person’s conduct will result in harm, the foreseeable severity
       of any harm that may ensue, and the burden of precautions
       to eliminate or reduce the risk of harm.

Id. § 3, at 29.

       In addition, section 19’s specific application of the section 3

principles explains that “[t]he conduct of a defendant can lack reasonable

care insofar as it foreseeably combines with or permits the improper

conduct of the plaintiff or a third party.” Id. § 19, at 215. Section 19

sets forth the following examples of situations where the defendant may

create or increase the likelihood of injury by a third person:

       For example, the defendant’s conduct may make available to
       the third party the instrument eventually used by the third
       party in inflicting harm; or that conduct may bring the
       plaintiff to a location where the plaintiff is exposed to third-
       party misconduct; or that conduct may bring the third party
       to a location that enables the third party to inflict harm on
       the plaintiff; or the defendant’s business operations may
       create a physical environment where instances of
       misconduct are likely to take place; or the defendant’s
       conduct may inadvertently give the third party a motive to
       act improperly.

Restatement (Third) § 19 cmt. e, at 218.6

       That a tavern may create a physical environment where instances

of misconduct are likely to take place raises converging questions of

reasonable care and the appropriate scope of liability for the defendant.
Restatement (Third) § 19 cmt. c, at 216–17. In a tavern, for example, the

environment may foreseeably bring about the misconduct of a third


       6We   note that in some bar owner–patron cases, the bar’s duty may be purely
affirmative because the bar has had no role in creating the risk of harm that arises. In
other cases, the bar may play a role in creating the risk, whether as illustrated in
section 19, or in some other manner. In those cases, the source of the duty may be the
general duty described in Thompson and section 7 of the Restatement (Third).
Thompson, 774 N.W.2d at 834–36. Regardless the source of the duty, the duty is one of
reasonable care. Restatement (Third) § 40 cmt. d, at 40. We emphasize, however, that
what constitutes reasonable care may depend on the circumstances, and whether the
duty is purely affirmative or more general may be a circumstance relevant in the fact
finder’s consideration of reasonable care. Id. at 41.
                                     12

party, resulting in injury to a plaintiff.      While the foreseeability of

misconduct raises an issue of the appropriate level of care, it also raises

the issue of whether the harm suffered by the plaintiff is within the range

of risks that may make the defendant’s conduct negligent in failing to

exercise that care. Id. In considering this overlap, we have previously

observed that where liability is based on the intentional acts of a third

party, we must take care to avoid requiring excessive precaution relating

to these acts, even when the improper conduct may be regarded as

foreseeable in the abstract.    Brokaw v. Winfield-Mt. Union Cmty. Sch.
Dist., 788 N.W.2d 386, 392 (Iowa 2010).

      In Brokaw, for example, we adjudicated a claim that a school

district had failed to control the conduct of one of its students. Id. at

388. The plaintiff, a high-school basketball player who alleged he was

injured by an opposing player during a game, appealed a decision in

favor of the defendant school district after a bench trial. Id. The plaintiff

argued the alleged assault by the defendant district’s student athlete was

foreseeable because the student athlete had taken a swing during the

game at another player within view of his coaches and had committed an

egregious foul.   Id. at 394.   We observed, however, that there was no

evidence in the record that the opposing player had a history of

physically dangerous conduct.     Id.     We therefore concluded there was

substantial evidence supporting the trial court’s view that the assault

was unforeseeable and affirmed its ruling that the school district had not

failed to exercise reasonable care. Id.

      By contrast, section 19 of the Restatement (Third) illustrates

scenarios where an actor’s knowledge of the risk of negligent or
intentional third-party conduct may provide a basis for liability as

follows:
                                      13
      [A]n actor engaging in certain conduct can foresee a
      considerable risk, either on account of the general prospect
      of other persons’ negligence during the relevant frame of time
      and place, or because the actor has knowledge of the
      propensities of the particular person or persons who are in a
      position to act negligently.

Restatement (Third) § 19 cmt. f, at 219.

      Here, the district court found that Gutterz exercised reasonable

care as a matter of law, based largely on the notion that the information

available to Gutterz at the time failed to suggest any possibility of harm

to Hoyt.   Hoyt and Brittain initiated the verbal conflict with Knapp,

reasoned the court, and thus, Gutterz could expect harm to Knapp but

had no reason to expect harm to Hoyt.            Mindful of section 19’s

instructions that foreseeability should be evaluated in the relevant frame

of time and place, and that foreseeability may arise in environments

where instances of physical misconduct are likely to take place, we

disagree that the record established as a matter of law that an injury to

Hoyt was unforeseeable.      Gutterz’s duty of reasonable care applied

“regardless of the source of risk.”    Id. § 40 cmt. g, at 42.    The duty

applied to risks arising from Hoyt’s conduct, as well as those created by a

third party’s conduct, whether innocent, negligent, or intentional.      Id.

Indeed, section 19 confirms that the risk rendering a defendant’s

conduct negligent may be the “risk that potential victims will act in ways

that unreasonably imperil their own safety.” Id. § 19 cmt. b, at 216.

      Gutterz personnel had observed the conflict developing between

Hoyt, Brittain, and Knapp, and had observed all three consuming alcohol

in the bar that afternoon. Hostilities escalated such that the waitress felt

compelled to seek and obtain Atkinson’s permission to discontinue

alcohol service to Hoyt and Brittain. Atkinson ordered Hoyt out of the
bar as a result of his concern that a physical altercation between Hoyt
                                   14

and Knapp might occur. Moreover, bars are business venues in which

alcohol-fueled disturbances causing injury and even death are known to

occur. See Delgado v. Trax Bar & Grill, 113 P.3d 1159, 1169 (Cal. 2005)

(proprietor who serves intoxicating drinks must exercise reasonable care

to protect patrons from injury at hands of fellow guests); Carey v. New

Yorker of Worcester, Inc., 245 N.E.2d 420, 422 (Mass. 1969) (“commotion

and boisterous behavior and continued drinking” may be “warnings of

trouble”); Priewe v. Bartz, 83 N.W.2d 116, 120 (Minn. 1957) (presence of

an intoxicated person upon the premises “immediately exposes the
proprietor to the hazards of liability resulting from the unpredictable

conduct of such person”); Peck v. Gerber, 59 P.2d 675, 678 (Or. 1936)

(“any place selling intoxicants for immediate consumption is potentially a

disorderly place unless properly policed and patrolled”).    Under these

facts, and given the relevant context of a bar and the conduct known to

occur there, we cannot conclude that the risk of harm to Hoyt was

unforeseeable as a matter of law as contemplated by sections 3, 19, and

40.   Small changes in the facts may make dramatic changes in how

much risk is foreseeable, and thus we leave the breach question’s

foreseeability determination to juries unless no reasonable person could

differ on the matter. Thompson, 774 N.W.2d at 836. Given the ruling of

our court of appeals, the general tenor of bar behavior, and Atkinson’s

own testimony regarding concern about a physical altercation, we

conclude that a reasonable person might find the risk of harm to Hoyt

foreseeable.   Accordingly, that Hoyt may have initiated the conflict

cannot serve as the basis for summary judgment that Gutterz acted

reasonably under the circumstances.
      Although the district court did not clearly address whether the
record established reasonable care by Gutterz, Hoyt contends that
                                     15

Gutterz could have exercised reasonable care by any of the following:
(1) calling the police when the conflict developed, (2) escorting Hoyt to his
vehicle in the parking lot, or (3) verifying that Knapp was not lying in
wait in the parking lot. Gutterz contends that it did escort Hoyt to his
vehicle, and that its precautions here were reasonable as a matter of law.
While resolution of the factual dispute is best left to the fact finder, we
observe that the resolution may have significant bearing on the
reasonable care determination. We emphasize that our recognition of a
duty in this case does not give rise to strict or absolute liability on the
part of Gutterz. Instead, to fulfill its duty in this context, Gutterz was
merely required to employ reasonable safety precautions. It may be that
quick intervention was all that was necessary under the circumstances.
See, e.g., Collins v. Shepherd, 441 S.E.2d 458, 459 (Ga. Ct. App. 1994).
Alternatively, a call to the police may have been warranted.       See, e.g.,
Getson v. Edifice Lounge, Inc., 453 N.E.2d 131, 135 (Ill. App. Ct. 1983);
Regan v. Denbar, Inc., 514 N.W.2d 751, 753 (Iowa Ct. App. 1994).
Regardless, the question of what reasonable care required under these
circumstances is for the jury; it is only in exceptional cases that such
questions may be decided as matters of law. Iowa R. App. P. 6.904(3)(j).
Given the factual dispute here, and our preference for the jury’s
assessment of reasonable care, we cannot conclude that the record
established Gutterz’s conduct constituted reasonable care as a matter of
law.
       C. Scope of Liability. Although the district court’s ruling did not
address the issue of Gutterz’s scope of liability, Gutterz relies on it on
appeal as an alternative ground for affirming the ruling.       See Pitts v.
Farm Bureau Life Ins. Co., 818 N.W.2d 91, 97 (Iowa 2012) (noting we may
affirm on an alternative ground raised in the district court even if it was
not one on which the court based its ruling).        Gutterz contends that
                                      16

because the risk of Knapp assaulting Hoyt was unforeseeable as a matter
of law, the harm here fell outside Gutterz’s scope of liability. A finding to
the contrary, Gutterz argues, would result in an overbroad and unjust
scope of liability for a tavern.    Hoyt does not address this particular
argument directly on appeal, but contends generally that because a
reasonable person could find the harm to Hoyt was foreseeable, the
district court erred in resolving the issue as a matter of law.
      Although we have concluded Gutterz owed Hoyt a duty of
reasonable care here, we have previously noted that tort law will not
always impose liability on an actor for all harm factually caused by an
actor’s conduct.    Thompson, 774 N.W.2d at 837.          Instead, an actor’s
liability is limited to those physical harms that result from the risks that
make an actor’s conduct tortious. Id. at 838; see also Royal Indem. Co.
v. Factory Mut. Ins. Co., 786 N.W.2d 839, 852 (Iowa 2010) (“ ‘[A]n act
which merely places persons in the position where they sustain injury
from an unrelated event is not for that reason a legal cause of the
injury.’ ” (quoting Hansen v. Anderson, Wilmarth & Van Der Maaten, 657
N.W.2d 711, 715 (Iowa 2003))).       This limiting principle aims to avoid
unjustified liability and to confine liability in a way consistent with the
reasons for holding an actor liable in the first place. Application of the
principle is fact-intensive, requiring consideration of the risks that make
an actor’s conduct tortious and a determination of whether the harm at
issue is a result of any of those risks. Thompson, 774 N.W.2d at 838.
Section   29   of   the   Restatement      (Third)   further   explains   these
considerations, noting that tortious conduct may be wrongful because of
various risks to various classes of persons.         Restatement (Third) § 29
cmt. d, at 496. Some risks may be far more prominent than others, but
all are relevant in determining whether harm is within the appropriate
scope of liability for the actor’s conduct. Id.
                                        17

       Further, in special relationship cases, an actor’s scope of liability
may include harms that are different from the harms risked by the
actor’s failure to exercise reasonable care to ameliorate or eliminate risks
that the special relationship requires the actor to attend to. Restatement
(Third) § 29 cmt. r, at 511. In other words, as a result of the bar–patron
relationship, a range of risks may arise for which the bar has a duty of
reasonable care, and in addition, a separate range of risks may arise to
the extent the bar’s conduct foreseeably combines with or permits the
improper conduct of a third party. Id. Thus, as noted in our reasonable
care analysis, foreseeability is relevant in the scope determination, and
we have observed that the fact finder, in determining the appropriate
scope of liability, must determine whether the type of harm that occurs is
among those reasonably foreseeable potential harms that make an
actor’s conduct negligent.           Thompson, 774 N.W.2d at 839 (citing
Restatement (Third) § 29 cmt. j, at 594).         When courts consider the
scope-of-liability question on summary judgment, we have explained that
they

       “must initially consider all of the range of harms risked by
       the defendant’s conduct that the jury could find as the basis
       for determining [the defendant’s] conduct tortious. Then, the
       court can compare the plaintiff’s harm with the range of
       harms risked by the defendant to determine whether a
       reasonable jury might find the former among the latter.”

Id. at 838 (quoting Restatement (Third) § 29 cmt. d, at 496).              No
straightforward rule can be provided to determine the appropriate level of
generality   or   specificity   to   employ in   characterizing   the   harms.
Restatement (Third) § 29 cmt. i, at 504.         Where there are contending
plausible characterizations of the range of reasonably foreseeable harms
arising from the defendant’s conduct leading to different outcomes and
requiring the drawing of an arbitrary line, the case should be left to the
judgment and common sense of the fact finder. Id.
                                      18

         At first blush, the relevant inquiry here given the parties’
contentions might appear to be the appropriate level of generality with
which to characterize the harm that occurred. According to Gutterz, the
relevant range of risks did not include the risk that a verbally aggressive
patron in a bar might suffer retaliatory harm from a patron who showed
no signs of physical aggression inside the bar. Hoyt, on the other hand,
characterizes the relevant range of risks more generally and contends the
risk of a physical altercation between bar patrons who had engaged in
verbal conflict on the premises is well within the range.        Regardless
which of these characterizations of the range of risks is adopted,
however, we cannot conclude Hoyt’s harm fell outside Gutterz’s scope of
liability as a matter of law. For the same reasons discussed above in our
reasonable care analysis, we think it plausible that a reasonable jury
could find either characterization of the risk of harm to Hoyt as falling
within the range of risks arising from Gutterz’s conduct.       Accordingly,
the claim must survive summary judgment on the scope-of-liability
issue.
         Finally, we think it prudent to observe that the scope-of-liability
standard is flexible enough to accommodate fairness concerns raised by
the specific facts of a case. Thompson, 774 N.W.2d at 838. Whether an
individual instigating a bar fight should have a viable negligence claim
when the fight materializes clearly implicates questions of fairness.
Those questions, however, are better left to fact finders applying (1) the
relevant breach and scope-of-liability analyses, and (2) comparative fault
law, than to a court applying summary judgment rules. See Iowa Code
§ 668.3(1)(a) (plaintiff cannot recover damages if he or she is more than
fifty percent at fault); see also Mulhern v. Catholic Health Initiatives, 799
N.W.2d 104, 121 (Iowa 2011); Restatement (Third) § 29 cmt. s, at 511.
                                     19

      IV. Conclusion.

      The district court erred in concluding that Gutterz, as a matter of

law, could not have breached its duty of reasonable care. In addition, a

reasonable fact finder could conclude that Hoyt’s harm was within the

appropriate scope of liability for Gutterz. Genuine issues of material fact

remain regarding each element of Hoyt’s negligence claim and summary

judgment was therefore inappropriate.         Accordingly, we reverse the

district court’s dismissal of this claim and remand this case for trial.

      DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT
COURT JUDGMENT REVERSED AND CASE REMANDED.

      All justices concur except Waterman, J., Cady, C.J., and

Mansfield, J., who dissent.
                                     20
                           #11–0085, Hoyt v. Gutterz Bowl & Lounge L.L.C.

WATERMAN, Justice (dissenting).

      I respectfully dissent.   I agree with the dissenting judge on the

court of appeals that summary judgment was correctly granted by the

district court. Negligence cases in general and bar fights in particular

are poor candidates for summary judgment. But, here, it is undisputed

the bar owner kicked out the troublemaker. There was no reason to eject

the well-behaved victim of the troublemaker’s verbal abuse or call the

police before the quiet patron unexpectedly jumped the troublemaker in

the parking lot. The evidence is insufficient to raise a jury question on

negligence or scope of liability.     Uncontroverted facts establish the

defendant acted reasonably as a matter of law.

      There is no evidence or claim that prior fights or third-party

criminal acts showed a need for a bouncer or other security at Gutterz.

Bars are not insurers strictly liable for injuries on their premises inflicted

by others.   So, what happened that allows Hoyt to sue Gutterz for a

beating inflicted on him by Knapp in the parking lot? Although accounts

of the fight outside differ, what happened inside Gutterz is undisputed.

      By all accounts, Hoyt was the aggressor inside Gutterz, while

Knapp remained calm.        The two people working at Gutterz Bowl &
Lounge in Guthrie Center, owner Rod Atkinson and waitress Sarah

Greene, knew nothing about any bad blood between these men. Hoyt

had been fishing with defendant Knapp hundreds of times, but they had

recently had a falling out. Hoyt and other members of his construction

crew stopped by Gutterz after work. After drinking a few beers, Hoyt and

his companion, Chris Brittain, became loud and started taunting Knapp.
Hoyt approached Knapp to confront him and continue his verbal

harassment. It is undisputed that Knapp did not threaten Hoyt verbally
                                     21

or physically. Greene responded to the belligerence of Brittain and Hoyt

by threatening to “cut them off” unless they quieted. When their taunts

and name-calling continued despite her warning, she talked to Atkinson

who agreed they should quit serving them beer. Atkinson, who had been

busy in the kitchen, came out to check on the situation.               Hoyt

complained about the decision to quit serving them alcohol. When Hoyt

and Brittain continued their name-calling, Atkinson told them to leave.

They left.   Throughout this commotion, Knapp stayed quiet.          He did

nothing to raise a concern about his behavior or to justify kicking him
out with Hoyt.

      Having kicked out the troublemakers—Hoyt and his companion—

what else should Gutterz have done? How was the bar negligent? The

majority concludes a jury could find Gutterz negligent for failing to call

the police. But, no crime had (yet) been committed, and Hoyt exited the

bar when told to leave.         Knapp was not threatening anyone or

misbehaving in any way.        At that point, why call the police?    From

Gutterz’s standpoint, the incident had been defused by Hoyt’s departure.

The majority also argues Atkinson should have done more to ensure Hoyt

left the parking lot safely.   This theory assumes Atkinson reasonably

should have foreseen Knapp would attack Hoyt. Knapp had not so much

as even raised his voice. The majority fails to cite a single case from any

jurisdiction supporting a property owner’s liability for a third-party

assault under equivalent facts.

      This case is quite a bit different from the Iowa precedent holding a

jury question existed on a bar’s negligent failure to prevent an assault.

See, e.g., Regan v. Denbar, Inc., 514 N.W.2d 751 (Iowa Ct. App. 1994). In
that case, plaintiff, Daniel Regan, was playing darts with his brothers at

Katie McButts Tavern in Davenport. Id. at 752. Two men confronted the
                                         22

Regans, and one “struck Daniel in the face, knocking him to the ground”

inside the bar. Id. A fight ensued, and the bartender intervened and

asked the Regans to leave.         Id.    The Regans feared they would be

attacked on their way to their vehicle and asked the bartender to call the

police while they waited inside until the police arrived.               Id.   The

bartender refused and sent the Regans out the back door where he saw

one of the attackers waiting. Id. at 753. The next attack on the Regans

outside was reasonably foreseeable.           Accordingly, the court of appeals

reversed a directed verdict for the bar. Id. In sharp contrast here, no
one asked for the police to be called, and Knapp had not assaulted Hoyt

or anyone inside the lounge or given any indication he would do so

outside.

      Our court’s recent adoption of sections of the Restatement (Third)

of Torts is not the death knell for summary judgments in negligence

cases. See, e.g., McCormick v. Nikkel & Assocs., Inc., 819 N.W.2d 368,

371–75 (Iowa 2012).       In that case, we affirmed summary judgment

dismissing   the   plaintiff’s   negligence     claims   against   an   electrical

subcontractor. Id. at 369. McCormick was electrocuted on a jobsite six

days after the defendant completed its work and returned control of the

locked equipment to the owner.           Id. at 370.     We affirmed summary

judgment on two grounds. First, we applied the long-standing rule that

liability follows control, which we recognized as “an articulated

countervailing principle or policy” exception to the general duty of care

under section 7(a) of the Restatement (Third). Id. at 374. Second, we

noted the absence of evidence of any defect in the electrical work and

affirmed summary judgment on the alternative ground that defendant
“did not create a ‘risk of physical harm’ giving rise to a general duty
                                    23

under section 7(a) of the Third Restatement.”      Id. at 375.   Nothing in

today’s majority opinion limits our holdings in McCormick.

      The duty of care invoked by the majority today is found in section

40(b)(3) of the Restatement (Third). The majority relies on comment j,

which recognizes that businesses open to the public “owe a duty of

reasonable care to persons lawfully on their land who become ill or

endangered by risks created by third parties.”      Restatement (Third) of

Torts: Liability for Physical and Emotional Harm § 40 cmt. j, at 43–44

(2012) [hereinafter Restatement (Third)].      The duty owed is one of
reasonable care.    To raise a jury question, there must be sufficient

evidence that a jury could find defendant’s conduct breached this duty,

that is, the defendant acted negligently or unreasonably. Such evidence

is lacking here.   The drafters of the Restatement (Third) confirm that,

when “reasonable minds can reach only one conclusion,” the court may

enter a directed verdict or judgment as a matter of law that defendant is

“free of negligence.” Id. § 8 cmt. b, at 103–04 (2010).

      The drafters also admonished that “the prospect of criminal

conduct is significantly lower than the prospect of negligent conduct.”

Id. § 19 cmt. f, at 220.   Our own precedent applying the Restatement

(Third) makes clear the question is whether Gutterz should have foreseen

that Knapp would assault Hoyt.           In Brokaw v. Winfield-Mt. Union

Community School District, a student, McSorley, assaulted Brokaw, an

opposing player during a basketball game. 788 N.W.2d 386, 388 (Iowa

2010). Brokaw and his parents sued McSorley for battery and his school

district for negligent failure to prevent his attack. Brokaw, 788 N.W.2d

at 388. We clarified that liability under the Restatement (Third) turned
on whether the district knew, or “in the exercise of ordinary care should

have known, that McSorley was likely to commit a battery against an
                                   24

opposing player.” Id. at 393–94. We upheld the district court’s bench

trial judgment in favor of the district because substantial evidence

supported the court’s finding the assault was not foreseeable.        Id. at

394–95. In so holding, we concluded the correct legal standard required

a determination of whether it was foreseeable McSorley would assault

Brokaw. Id. at 393–94. Similarly, here, the issue is not whether a fight

between Hoyt and Knapp was foreseeable, but rather whether it was

reasonably foreseeable to Gutterz that Knapp would assault Hoyt.

Gutterz acted reasonably as a matter of law by ejecting Hoyt, the
troublemaker. Gutterz had no reason to foresee that Knapp, the quiet

one, would attack Hoyt outside the lounge.

      I agree with the dissenting judge on the court of appeals, who

concluded the “evidence does not make it foreseeable Knapp, who was

causing no trouble, would harm Hoyt.”        Similarly, the district court

correctly concluded:

      The circumstances may have made it foreseeable that Hoyt
      might harm Knapp. The circumstances known to Atkinson
      did not make it foreseeable that Knapp might harm Hoyt.
            In the case at bar there was no evidence of a potential
      danger to Hoyt from Knapp. Because of that total lack of
      evidence, a fact question of whether Gutterz exercised
      reasonable care to discover the existence of a danger is not
      generated. Just as in Knebel v. Ka-Boos Bar & Grill, 2004
      Iowa App. LEXIS 335, in the instant case “the owners did not
      know and had no reason to know that the assault was about
      to occur.” Accordingly, summary judgment is appropriate.

      Under analogous circumstances, other appellate courts have

affirmed directed verdicts or summary judgments when the assault that

occurred was not reasonably foreseeable. See, e.g., Boone v. Martinez,

567 N.W.2d 508, 511 (Minn. 1997) (affirming directed verdict because
“the evidence established that the assault by Martinez was sudden and

unforeseeable”); Rader v. Sugarland Enters., Inc., 149 P.3d 702, 707
                                      25

(Wyo. 2006) (affirming summary judgment when assailant in parking lot

fight was passive bystander in precipitating incident inside before

troublemakers were told to leave).           See generally Joan Teshima,

Annotation, Tavernkeeper’s Liability to Patron for Third Person’s Assault,

43 A.L.R. 4th 281, 354–63 (1986) (collecting bar fight cases adjudicated

by court as a matter of law).

       Summary judgment is also appropriate in this case on the scope of

liability.   “Under the Restatement (Third) analysis, . . . something

[defendant] did or did not do must have increased the risk” to plaintiff.
Royal Indem. Co. v. Factory Mut. Ins. Co., 786 N.W.2d 839, 851, 851–52

(Iowa 2010) (vacating plaintiff’s jury verdict on grounds the harm was

outside the scope of liability as a matter of law).        Again, there is no

evidence that Gutterz did or failed to do anything that increased the risk

Knapp would harm Hoyt.          To the contrary, Gutterz reduced the risk

those men would come to blows by ejecting Hoyt, who was harassing

Knapp.

       In Brokaw, we admonished that:

              Where liability is premised on the negligent or
       intentional acts of a third party . . . ,“the law itself must take
       care to avoid requiring excessive precautions of actors
       relating to harms that are immediately due to the improper
       conduct of third parties, even when that improper conduct
       can be regarded as somewhat foreseeable.”

788 N.W.2d at 392 (quoting Restatement (Third) § 19 cmts. g, h, at 220–

21).    The majority disregards that admonishment today.              It is an

“excessive precaution” to require Atkinson to call the police after he

ejected Hoyt or to guard Hoyt outside until he left unharmed when there

were only two employees working at Gutterz that afternoon, and Knapp
had given no sign of trouble.
                                    26

      For these reasons, I would affirm the district court’s summary

judgment in favor of Gutterz.

      Cady, C.J., and Mansfield, J., join this dissent.
