It’s no surprise that people drink alcohol in bars and dance clubs. They get drunk and rowdy. And when they do, fights often erupt and people get hurt. Sometimes pretty seriously.
Bar fights have been happening ever since alcohol has been served:
Winning a lawsuit against the person who started it all is usually pretty easy but often fruitless since the individual is often without liability insurance and can’t pay a judgment. So the injured party looks for a “deep-pocket” defendant – someone who has insurance and the ability to pay – and that’s the bar owner.
As we’ve discussed before, here, bar owners, as with all premises owners, have a general duty to protect customers from unforeseeable and unexpected assaults.
Additionally, as discussed below, when the injuries are caused by an intoxicated person, there are specific statutes that impose liability upon bar owners.
It was “Thursday College Night” on November 11, 2005 and it was rocking at Rockin Robbins Bar and Club in Yonkers, New York. The place was jammed with hundreds of young people attracted by free champagne for female college students and two for one drink specials all night. A fellow out of jail on probation, Michael Penzo, arrived about 10 p.m. and David Morris got there around midnight.
Fifteen minutes later, David stumbled out of the bar and went to the hospital with stab wounds in his stomach – the result of a brief altercation with Penzo, a man he’d never met. David had bumped into him in the restroom (according to David, accidentally; according to Penzo, on purpose) and Penzo took offense, followed David out to the dance floor, stabbed him in the gut and left.
Morris was admitted to the hospital for five days during which time he underwent surgery to repair a perforation of his sigmoid colon and a laceration of his abdominal wall. He was left with some nasty scars in and about his stomach.
Two years later, Morris sued both Penzo and Bianna, Inc., the owner of the bar. Penzo admitted that he had stabbed Morris during a fight on the dance floor in which Penzo was knocked to the ground, found a knife on the floor and came up swinging the knife to get away. He was arrested two weeks later for assault but all charges were dropped. Here is Penzo’s testimony at his examination before trial.
The bar vigorously defended the lawsuit claiming there was no basis for imposing any liability upon it. After depositions were taken, Rockin Robbins made a motion for summary judgment in which it asked the judge to dismiss the lawsuit alleging that there were no substantial facts in dispute and that the applicable legal principles mandated a dismissal.
Under the pertinent statutes – General Obligations Law Section 11-101 (known as the Dram Shop Act) and Alcoholic Beverage Control Law Section 65 – to impose liability upon the bar owner plaintiff had to prove that Penzo was served alcohol at a time when he was visibly intoxicated. Penzo said he hadn’t consumed any alcohol that night as his probation restrictions prohibited him from drinking. And there was no testimony that Penzo had been served alcohol. Nonetheless, the judge’s decision in Morris v. Bianna, Inc. allowed the case to proceed to trial because there was evidence that Penzo displayed some of the classic signs of intoxication – slurred speech and red, watery eyes.
On appeal, the defendant again argued that there was insufficient proof that Penzo was served alcohol while visibly intoxicated. In particular, the bar pointed to the fact that Penzo had been grabbed by bouncers immediately after the violent assault and his slurred speech and blurry eyes could well have been attributable to the headlock he’d been placed in.
The appellate judges in Morris v. Bianna, Inc. (2nd Dept. 2010) rejected that argument and affirmed the denial of the defendant’s summary judgment motion. They stated that it was for the jury to determine whether in fact Penzo was visibly intoxicated and served alcohol before he stabbed Morris; if so, liability would attach to the bar owner under the Dram Shop Act.
The case proceeded to trial and a jury was selected on March 10, 2010. Before the first witness, though, the case settled for $75,000.
- Plaintiff’s settlement demand before trial had been $1,200,000 but after the jury was selected he reduced it to $85,000 before agreeing to settle. The defendant had a $300,000 liability insurance policy.
- While plaintiff prevailed upon two sets of judges to defeat the defendant’s motion, the plaintiff still had a daunting burden of proof – at trial he had to show that, before the attack, Penzo was visibly intoxicated. Apparently, plaintiff concluded he’d be unable to do so in view of the lack of any testimony that Penzo had consumed any alcohol at all that night.
- Plaintiff admitted he’d smoked marijuana before arriving at the bar and to giving a false name at the hospital (because he had no health insurance and wanted to avoid getting billed)