                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-2167
                            Filed November 9, 2016


LORA KNIGHT,
     Plaintiff-Appellant,


vs.

ELM KING ENTERPRISES, L.L.C., an Iowa
Limited Liability Company, MICHAEL J. KING,
DONNA J. KING, and COSTA DINO KING,
      Defendants-Appellees.
________________________________________________________________


      Appeal from the Iowa District Court for Union County, Dustria A. Relph,

Judge.



      Lora Knight appeals the district court’s order granting summary judgment.

AFFIRMED.




      Douglas D. Daggett of Douglas D. Daggett, P.C., Creston, for appellant.

      Jason W. Miller of Patterson Law Firm, L.L.P., Des Moines, for appellee.



      Considered by Danilson, C.J., and Vaitheswaran and Tabor, JJ.
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VAITHESWARAN, Judge.

       Lora Knight filed a personal injury action against Creston tavern Elm King

Enterprises, L.L.C. as well at its owners. She was assaulted by a bar patron and

alleged the tavern failed to exercise reasonable care in several respects. The

tavern moved for summary judgment. Knight did not resist the motion. Shortly

before the summary judgment hearing, Knight moved for an extension of time to

file a resistance and for a continuance. The district court denied her motion.

Following the hearing, the court granted the defendants’ summary judgment

motion, finding no duty and, alternatively, no breach of duty.

       On appeal Knight contends the district court (1) abused its discretion in

denying her motion for an extension and continuance and (2) erred in granting

the defendants’ motion for summary judgment.

I.     Motion for Extension and Continuance

       “Any party resisting [a motion for summary judgment] shall file a

resistance within 15 days . . . from the time when a copy of the motion has been

served.” Iowa R. Civ. P. 1.981(3). Knight did not file a resistance within that time

frame or in the following month. She filed her motion for extension of time and

continuance two hours and four minutes before the hearing and failed to identify

any reasons in support of her request for additional time. We conclude the

district court did not abuse its discretion in denying the motion as untimely. See

Kulish v. Ellsworth, 566 N.W.2d 885, 889-90 (Iowa 1997).
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II.    Summary Judgment

       Summary judgment is appropriate where “there is no genuine issue as to

any material fact and . . . the moving party is entitled to a judgment as a matter of

law.” Iowa R. Civ. P. 1.981(3).

       The district court found no “tavern-patron relationship” and, therefore, no

duty of care.     The court alternatively stated that, even if “a tavern-patron

relationship did exist that imposed a duty on Defendants,” the assault was not

foreseeable—either to Knight or the tavern.

       Knight argues the district court “narrowly construed” her relationship with

the tavern in finding it owed her no duty and the question of whether the tavern

breached a duty was “best suited for a trier of fact.” We need not address

whether a duty was owed to Knight because we are convinced that, even if the

tavern had a duty, Knight could not establish a breach as a matter of law.1

        The question of breach turns on whether the tavern exercised reasonable

care. Hoyt, 829 N.W.2d at 777-78. “[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. at 778 (quoting Restatement (Third) of

Torts § 19 (2010)). “In a tavern, for example, the environment may foreseeably

bring about the misconduct of a third party, resulting in injury to a plaintiff.” Id.




1
  In the context of her discussion of a breach, Knight refers to “scope-of-liability.” The
tavern asserts Knight failed to preserve error on a scope-of-liability argument. We are
persuaded the reference appears in the context of her breach-of-duty argument. See
Hoyt v. Gutterz Bowl & Lounge L.L.C., 829 N.W.2d 772, 778 (Iowa 2013) (noting
foreseeability of misconduct “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”).
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“[W]e leave the breach question’s foreseeability determination to juries unless no

reasonable person could differ on the matter.” Id. at 780.

      No reasonable person could find it foreseeable that the tavern

environment brought about the assault.       Knight went to the establishment to

order food. When she found out “they were not cooking food anymore,” she

“went straight to the bathroom.” As she left the bathroom, an unknown woman

“stopped [her] and asked to ‘talk to [her].’” According to Knight, the woman had

“no bad body language,” “smil[ed] at [her],” and was “very soft spoken.” Knight

“had no reason to feel threatened or anything.” The woman asked Knight to step

outside and proceeded to assault her “as soon as [they] got out the back door,”

believing Knight had “snitch[ed]” on someone else. Knight stated she “couldn’t

believe it happened” because she “didn’t even know” the woman. In a statement

to police, she stated, “I didn’t expect what was coming.”

       The bartender working on the night of the incident attested she “saw no

altercation” between the two women, was “aware of no event that occurred within

Elm’s Club that demonstrated or foreshadowed that . . . Knight and [the other

woman] would be involved in a physical altercation,” and “had no reason to

believe such an event would take place.”

      We conclude the risk of harm was unforeseeable as a matter of law and

the district court did not err in granting summary judgment in favor of the

defendants.

      AFFIRMED.
