Night Club and Security Company Exonerated in Near-Fatal Stabbing of Patron

By: Michael J. Kozoriz

The Appellate Division for New York's First Judicial Department reversed the decision and order of the trial court denying the motions for summary judgment of a night club and its security team in the near-fatal stabbing of one of its patrons. See Vega v. Ramirez, et al., 2008 N.Y. Slip Op. 09725 (Dec. 11, 2008). The plaintiff was stabbed just outside the night club at approximately 3:00 a.m. in the South Street Seaport section of lower Manhattan. The incident occurred after an altercation between the plaintiff's friend and another patron. The fight spilled outside the club and swelled to include the alleged-stabber's friends, the plaintiff, and indeed other unidentified participants who may or may not have been inside the club that evening. When the fight was dispersed, the plaintiff lay on the ground stabbed numerous times in the chest.

The plaintiff sued the alleged stabber, who was acquitted of the offense at his criminal trial. The plaintiff also sued the night club, its security team, and others, in connection with the incident. The plaintiff's theory against the club and its security was that they did not take reasonable precautions to ensure the plaintiff's safety, especially in light of a "shoving match" at the club between the alleged stabber and the plaintiff's friend one week before the stabbing. On behalf of the night club and its security team, the author moved for summary judgment on the grounds of lack of proximate cause and assumption of the risk. The trial court denied the motion, citing disputed questions of material fact, such as whether the first punch was thrown inside or outside of the club, whether the defendants had prior notice of a dispute between the two groups, whether the club could be responsible for the stabbing outside of the club where it maintained tables and chairs for use by its patrons, and whether the security team acted appropriately to quell the fight and secure the premises after the altercation commenced.

After oral argument and after successfully obtaining an order from the appellate court for a stay of the trial pending disposition of the appeal, the Appellate Division for the First Judicial Department, with jurisdiction over appeals from the courts in New York and Bronx Counties, unanimously reversed the lower court's decision and entered summary judgment in favor of the club and its security company. The Appellate Division adopted the author's argument that the stabbing of the plaintiff was unforeseeable as a matter of law and that the plaintiff's admitted willful participation in the fight severed any causal nexus between any lack of security and his injuries. See Maheshwari v. City of New York, 2 N.Y.3d 288, 810 N.E.2d 894, 778 N.Y.S.2d 442, 445 (2004). In Maheshwari, the plaintiff was in the parking lot of Downing Stadium on Randall's Island where a rock concert (called "Lollapalooza") was taking place when he was attacked and severely beaten by four unidentified intoxicated men. Mr. Maheshwari sued the City of New York and the concert producer, alleging inadequate security. The Court of Appeals, New York's highest court, affirmed the decision of the Appellate Division, First Judicial Department, granting summary judgment to all defendants and dismissing the Complaint, holding:

In cases arising out of injuries sustained on another's property, the scope of the possessor's duty is defined by past experience and the "likelihood of conduct on the part of third persons . . . which is likely to endanger the safety of the visitor."

Here, the brutal attack was not a foreseeable result of any security breach. The types of crimes committed at past Lollapalooza concerts are of a lesser degree than a criminal assault, and would not lead defendants to predict that such an attack would occur or could be prevented. By all accounts, defendants took reasonable measures to deal with issues of crowd control and other forms of disorderliness short of unprovoked criminal acts. A random criminal attack of this nature is not a predictable result of the gathering of a large group of people.

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We also agree with the Appellate Division's conclusions that even assuming a lapse in the security in the parking lot, plaintiff's injuries were not the result of any such lapse, but were caused by an independent, intervening criminal act . . . . An intervening act may break the causal nexus when it is "extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct."

Maheshwari, 2 N.Y.3d 288, 810 N.E.2d 894, 778 N.Y.S.2d at 445-46.

In unanimously reversing the decision of the court below, Appellate Division, in Vega v. Ramirez, et al., 2008 N.Y. Slip Op. 09725 (Dec. 11, 2008), held:

By all accounts, the five or six security guards assigned to the nightclub that night were enough to deal with any form of disorderliness that could be reasonably expected, the magnitude and intensity of the fight quickly erupted beyond what that number could quell, and the guards acted appropriately to secure the premises and the patrons inside against the violence taking place just outside by locking the nightclub's doors and remaining inside. There is no evidence that appellants were under a duty to police the outside of the premises and secure it against non-patron transgressors, and it is speculation for plaintiff to argue that additional security guards would have prevented the escalation of a fight that involved too many people for plaintiff and his companions to number precisely. Even assuming a failure to provide reasonable security, any such failure was not a substantial cause of plaintiff's injuries. Plaintiff's own testimony established that he could have remained within the safety of the nightclub at the time the fight broke out and spilled outside, and that he considered such option because of the apparent intensity of the fighting and the overwhelming number of adversaries outside, yet he elected to go outside and join the fight. In so choosing, plaintiff severed any causal connection between the appellants' alleged negligence in providing reasonable security and his injuries.

Vega, 2008 N.Y. Slip Op. 09725.

Conclusion

Premises liability cases involving criminal acts by third persons are defensible, and importantly, the plaintiff/victim's state of mind, and his or her actions, immediately before an assault will play an important role in the proprietor's liability if the issue is raised by the defense with an appropriately crafted legal argument. Other important factors to be considered are whether the premises has a history of criminal activity or violence, whether security measures are reasonably taken in light of the perceived risks, and the willful participation of a plaintiff/victim in the act or acts that give rise to the injuries claimed.

Michael J. Kozoriz is a senior associate in the litigation department of White and Williams LLP. Admitted to practice in the state and federal courts of New York and New Jersey, he has a broad range of experience defending premises liability cases and cases brought pursuant to the New York Labor Law. Michael can be reached in New York at 212.631.4412, in New Jersey at 201.368.7212, or at kozorizm@whiteandwilliams.com.