New York Injury Cases Blog : New York Personal Injury Lawyer & Attorney : John Hochfelder Law Firm : Traumatic Injury, Wrongful Death

Bars and restaurants are frequently sued for injuries to patrons that result from fights. Usually, the fights, or attacks, are between patrons. Sometimes, it’s a bouncer or security person who causes the injuries. In all cases, though, liability upon the bar or restaurant will depend on whether there was an opportunity to control (i.e., prevent) the incident and whether the premises owner was reasonably aware of the need for such control. There is simply no duty to protect patrons against unforeseeable and unexpected assaults. The courts have addressed these concepts in three recent cases in which patrons were beat up in bars and restaurants.

Crazy Donkey Bar & Grill – that’s really the name of a bar in Suffolk County, New York – won one of its appeals of an injury verdict against it arising out of an assault on the dance floor but lost two others.

The facts sound like the beginning of a joke – guy arrives at a bar with his girlfriend, buys a drink and walks across the dance floor to give it to her when another guy comes up behind him, grabs his shoulder and …. Well that’s pretty much it. No punch line except that the boyfriend was, literally, punched (in the face) and suffered a broken nose. The perp (as prosecutors would call him) was never found but the boyfriend sued the bar.  And won a verdict of $115,000 (fractures of both nasal bones, deviated septum, concha bullosa  and lacerations).

On appeal, though, the verdict was reversed and the boyfriend's complaint dismissed in Giambruno v. Crazy Donkey Bar & Grill because of the spontaneous nature of the incident and the finding that the attack could not have been prevented even with a greater presence of security personnel.

Giambruno’s girlfriend, Bobee Delgado and his uncle William Hacker also sued the bar. When Delgado tried to come to Giambruno’s aid, the bar’s bouncers grabbed her and Hacker and hauled them outside where they threw Delgado over a wall and kicked and punched Hacker.

Delgado sustained contusions of her left thumb and right hand as well as bruising under her arms for which the jury awarded her $74,000 in pain and suffering damages. The trial judge reduced her award to $1,000 and the appeals court finally increased it to $15,000.

Hacker sustained contusions to his head and right hand as well as severe bruising on his back, chest, neck and arms. His $88,000 verdict was likewise reduced to $1,000 by the trial judge and increased to $15,000 by the appeals court.

In another recent case, a young man was attacked just outside a well known New York City nightclub, inside a roped off smoking area. Standing near the door (and a doorman and security person), Jack Haber was confronted by two other patrons who had exited the club. They argued for about 60 seconds when Jack was pummeled in the face first by one and then by another attacker. Hacker did not fight back and the nearby security guard did not intervene.

Jack sued the club – the notorious Stereo – and in Haber v. Precision Security Agency, the defendants argued on a motion to dismiss that they had no duty to protect plaintiff under these circumstances. The trial judge denied the motion finding that a jury may fairly determine that the 30-40 second fight was long enough for the staff to intervene, given their proximity to the assault and the fact that they were present for another minute or so during the verbal altercation preceding the attack. So, this case was allowed to proceed to trial and we will follow it for future developments such as an appeal, trial or settlement.

In the third recent case, Boyea v. Aubin, an appeals court affirmed the denial of a restaurant’s pre-trial motion seeking dismissal of its patron’s lawsuit for injuries arising out of a fight at the premises. Jack Boyea was struck in the back of the head during a melee that erupted between the restaurant’s general manager and a disgruntled customer. There had first been a 15 minute dispute between Boyea’s girlfriend and a waiter when the manager intervened and the fight broke out. The issue a jury will determine is whether the defendants could have anticipated or prevented the incident and whether the manager’s conduct was reasonable.

Not surprisingly, bars and restaurants are places where, often under the influence of alcohol, fights erupt and people are injured. Then, the instigator is either missing (unidentified because he fled) or judgment proof (an uninsured, financially strapped person). So, the premises owners (usually insured or otherwise financially viable) are named as defendants with allegations that they failed in their obligations to protect their patrons from injurious acts of third persons. These claims can succeed but are quite dependent on the unique facts of each case. In many cases, there is no set of facts that will allow the case to proceed to trial and they are dismissed as a matter of law. The recent cases indicate a trend to more exposure on the part of premises owners.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 After evidence was presented in a trial in 2006, the judge dismissed a personal injury case brought by Delvin Sweeney. He  appealed and won a new trial set to start this week in Bronx County, New York. The case is Sweeney v. Bruckner Plaza Associates.

It all stems from an incident on December 23, 1997 when Sweeney, a quadriplegic, drove his specialized vehicle to a shopping center, parked it and found it missing on his return a half hour later. He wheeled himself a mile or so to the tow yard and claims he thereby suffered substantial injuries - pneumonia from exposure to the cold weather and hand, wrist and forearm injuries from the bumpy ride along New York City sidewalks.

Plaintiff was left without his car, with just his wheelchair like this one:

Sweeney sued the tow company (as well as the parking lot owner) claiming it had no right to tow the car and it had no signs posted showing the phone number and location of the yard and therefore the yard caused his injuries.

A sign like this one may have avoided this whole lawsuit mess:

And there was (and is) the issue of causation. Or, as we lawyers say - proximate cause. The trial judge found there was an insufficient connection between defendant's actions and plaintiff's injuries. Two of the five appeals court judges dissented and agreed with the trial judge.

Here are some more of the facts in this case that have caused such judicial turmoil:

1. plaintiff parked in a handicapped parking spot but did not have handicap plates or a government issued placard allowing him to do so
2. plaintiff saw a tow company employee who told him he could get his car back at the tow yard about two blocks away
3. plaintiff twice called the police on his cell phone from the lot and was told to stay put but instead he decided to wheel himself to the tow yard, but it turns out it was 11 blocks away down a bumpy sidewalk in the cold weather
4. plaintiff, without a coat, wheeled himself but was with his teenage brother
5. defendant should have had signs in the lot with its phone number and address - it did not
6. defendant should not have towed the car because of the absence of the signs

So how would you rule on the issue of proximate cause? Here are some clues. When there is an intervening act (between defendant's negligence and plaintiff's injury), the determination of  whether a defendant's conduct can be said to be a proximate or substantial cause of the plaintiff's injuries turns on whether the intervening act was a foreseeable consequence of the defendant's negligence. Judges will consider the following:

• were there other factors that contributed to the injury?
• was the defendant's negligence continuous up to the time of injury?
• how much time elapsed from the negligent act to the injury?

Now, you have the information needed to decide this case. It's really a policy decision and the courts are in agreement that the policy considerations underpinning the law of proximate cause serve to place manageable limits upon the liability that flows from negligent conduct. If you want to see a compendium of cases and issues dealing with personal responsibility, there's no better place to go than Overlawyered where Walter Olson chronicles it all.

So, not every act of negligence combined with an injury should result in an injured party's courtroom win. Plaintiff wins only when he can show proximate cause and if there are intervening factors - such as his own voluntary decision to wheel himself in the cold without a coat over New York City bumpy sidewalks - then it may be that despite being injured following another party's negligence there should be no recovery.

In Mr. Sweeney's case, we will find out soon enough whether he can convince a jury that his decision to wheel himself to the tow yard was an act that was foreseeable following his being left without a car and with insufficient knowledge of the tow yard's location.

The defense will try to convince the jury that Sweeney's decision was not foreseeable - especially in view of the facts that the police told him twice to stay where he was, he did not have a winter coat on and he did not use his cell phone to try another (safer) way to get home. And, too, the defense will argue that any injuries caused by defects in the city sidewalks cannot be the fault of the tow company under any circumstances.

                    Prediction: Defense verdict.

                    As always, we will continue to follow this case and report on developments.

• Email This
• Print
• Comments
• Trackbacks
• Share Link