Opinion
No. CV 07-5012215 S
October 7, 2010
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Before the court is a motion for summary judgment directed at a claim of negligence. The plaintiff alleges to have suffered injuries when he was assaulted at the Ultra 88 nightclub during the early morning hours of August 27, 2006. As the plaintiff states in his opposition to the motion the count alleging negligence alleges "that the defendants and/or that their agents, servants or employees were negligent in that they failed to provide sufficient security personnel, failed to take reasonable measures to intervene (in) an altercation between the plaintiff, his assailant and the assailant's party in a timely fashion, failed to adequately train and supervise employees so that they could properly monitor the behavior of patrons and failed to take reasonable measures to ensure that large numbers of patrons would not be standing in close proximity to each other so physical contact could occur that might lead to an altercation." The nightclub was "operated and controlled" by the defendant Plan B, LLC (Plan B).
The standards for granting a motion for summary judgment are well-known. Such a motion should not be granted if there is a material issue of fact since a party has a constitutional right to a jury trial. But if no such issue is presented the court should grant the motion, to avoid imposing on the parties the burden and expense of litigation.
It has been said that courts should be cautious in granting motions for summary judgment in negligence cases. The court in Amendola v. Geremia, 21 Conn.App 35, 37 (1990), said: "it must be quite clear what the truth is and "any real doubt must be excluded; "a conclusion of negligence: . . . is ordinarily one of fact"; see Fogarty v. Rashaw, 193 Conn. 442, 445 (1984), Maffucci v. Royal Park Ltd., 42 Conn.App. 563 (1996). "Ordinarily," however, does not cover the entire universe and even in a negligence case such a motion should be granted where it is appropriate to do so.
CT Page 18913
(1)
There are not many Connecticut appellate cases directly on point which involve a tavern's liability in negligence for injuries to a patron, because of assaultive behavior by another patron. Davenport v. Quinn, 53 Conn.App. 282 (1992), involved a situation where a plaintiff who had been a patron of a bar, stepped outside onto a sidewalk and was attacked by a group of people leaving the bar. The court at page 288 said that: "The general rule in Connecticut is that a party is not under a duty to aid unless a special relationship exists between it and the victim . . . A store owner owes a duty to an invitee to keep the premises in a reasonably safe condition . . . Furthermore, a possessor of property must act as a reasonable (person) to avoid harm . . . even from intentional attacks on the part of such third persons." The court cited Mehri v. Becker, 164 Conn. 516 (1973), which involved a negligence claim by a plaintiff injured by another guest at a union picnic. The court will discuss this case more fully later in the opinion. This individual steered his car towards another person and hit the plaintiff, alcoholic beverages were served and the gathering was unruly. The negligence verdict against the jury was upheld and the Mehri court cited language in Prosser to the effect that as possessor of the premises on which the incident occurred it must exercise the power of expulsion to prevent injury to another visitor to the premises; "he must act as a reasonable man to avoid harm . . . even from intentional attacks on the part of . . . third persons," id. page 520.The case of Stewart v. Federated Department Stores, Inc., 234 Conn. 597 (1995), expanded on these comments in a non-tavern situation by stating our state has adopted the standard set forth in Section 442 B of the Restatement (2d) Torts that:
[W]here the negligent conduct of the actor creates or increases the risk of a particular harm and is a substantial factor in causing that harm, the fact that the harm is brought about through the intervention of another force does not relieve the actor of liability, except where the harm is intentionally caused by a third person and is not within the scope of the risk created by the actor's conduct.
Also see Sections 344 and 448 of the Restatement.
The court then said in summary: "Consequently, the plaintiff must show, by a fair preponderance of the evidence, that harm intentionally caused by a third person is within the scope of the risk created by the defendant's negligent conduct." Id. page 608.
Or to sum up the foregoing the court in Frankovitch v. Barton, 185 Conn. 14, 20-21 (1981), said that "The ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised."
What are the specific situations in which a tavern owner can be found negligent due to the negligent acts of a third party? Many of the cases are collected in two very extensive articles, 43 ALR 4th 281, and 26 C.O.A. 2d 1. The ALR article cites as a leading case Nevin v. Carlasco, 365 P.2d 637 (Mont. 1961). In Nevin the court reviewed cases from other jurisdictions and said "we find the general rule to be that the duty of a tavern keeper to protect a patron from injury by another arises only when one or more of the following circumstances exist:
(1) A tavern keeper allowed a person on the premises who has a known propensity for fighting.
(2) The tavern keeper allowed a person to remain on the premises whose conduct had become obstreperous and aggressive to such a degree the tavern keeper knew or ought to have known he endangered others.
(3) The tavern keeper had been warned of danger from an obstreperous patron and failed to take suitable measures for the protection of others.
(4) The tavern keeper failed to stop a fight as soon as possible after it started.
(5) The tavern keeper failed to provide a staff adequate to police the premises.
(6) The tavern keeper tolerated disorderly conditions.
Several of the foregoing activities are self-explanatory but two require further comment. In an earlier opinion of this court, Winston v. Pool Hand Lukes, Inc., No. 555438 (2003), it said; quoting Welch v. Railroad Crossing, Inc., 488 NE.2d 383 (Ind.App. 1986).
"We have found no case in which a court imposed a common-law duty to protect against an attack on the theory that intentional criminal acts are foreseeable merely from the fact that alcohol is sold on the premises or that such acts are foreseeable solely from the fact that the assailant was served beyond the point of intoxication. There must be more because the foreseeability of a criminal act is determined by reference to the proprietor's knowledge of the actor's behavior. For the proprietor of a tavern to be held liable for a criminal assault under a common-law theory of negligence, the proprietor must have been alerted to the likelihood of harm by the prior actions of the assailant, either on the occasion of the injury or on previous occasions.
Furthermore, as regards to consideration (5) of the Nevin decision — the tavern keeper failed to provide a staff adequate to police the premises — this factor is discussed in § 8 of the 43 ALR 4th article at pp 328 et seq. This claim can be said to basically involve a claim of a failure to provide adequate security. Several cases discuss such a claim as being "present as a factor supporting liability." All of them involve situations where the tavern keeper ran a bar which had a history of rowdy or violent behavior or knew from past contact that the assailant was a violent person who frequented the tavern. A Connecticut case is cited in the ALR article, Mehri v. Becker, supra. In that case, a union sponsored an outdoor picnic. Several police were to be hired for the happy event but only one was on duty. The assailant attempted to run down one person with his car but struck the plaintiff instead. One of the grounds of negligence was failure to provide adequate police protection. The court upheld the verdict for the plaintiff against the union. The court found that on the basis of the evidence, it was within the jury's province to find the union negligent. Some of the relevant facts mentioned by the court were that the tenor of the picnic became "noisy and inharmonious," people were swimming in the pool with their clothes on, the assailant drank many beers and became involved in fights during the affair. However, he was not "arrested, evicted or escorted from the grounds." Id. p. 519.
Another Indiana case is interesting on the issue of security obligations of a tavern owner.
In Bearman v. Univ. of Notre Dame, 453 N.E.2d 1196 (Ind.App. 1983), a lady was injured while returning to her car after a football game by a drunk who knocked her down. The court said the university was aware that alcohol was consumed during and after games and tailgate parties were held in parking lots around the stadium. The court conceded that there was no showing the university had reason to know of the particular danger posed by the drunk who caused injury to Mrs. Bearman. But the court went on to say that the university "had reason to know that some people will become intoxicated and pose a general threat to the safety of other patrons. Therefore, Notre Dame is under a duty to take reasonable precautions to protect those who attend its football games from injury caused by the acts of third persons," id. page 1198. The court held the trial court erred in granting a "motion for judgment on the evidence" and remanded the case for a new trial holding the case should have gone to a jury.
Finally, on the issue of security a Georgia case in a tavern situation is interesting. In Knudsen v. Lenny's, 413 S.E.2d 258, 202 Ga.App. 85, 87 (1991) the summary judgment ruling in favor of the defendant was upheld. One of the observations made by the court was that "Appellant (plaintiff) testified that only five seconds elapsed from the time Scroggins (assailant) shouted to them (plaintiff and wife) to the time he was assaulted. Appellant presents no evidence to show that appellee (defendant bar) could have prevented the incident from occurring with a different security system in place." Also see Warner v. Florida Jai Alai, 221 SO.2d 777, 779 (Fla.App. 1969) cf Whitfield v. Cox, 52 S.E.2d 72, 75 (Va. 1949).
(2)
When argument was held on this matter the motion was directed at the third count which lies in a claim of negligent supervision and the argument focused on that aspect of the Nevins criteria concerning a failure to provide staff adequate to police the premises which is related to the tavern operator's duty to stop a fight as soon as possible after it starts — that is, was there adequate security and would any reasonable security have been able to prevent the assaultive behavior and injury that occurred here.
The court will review the exhibits presented by both sides in light of the foregoing discussion on what it concludes to be the applicable law in this area. The court will first discuss the defendant's factual references. The defendant relies in part on the deposition testimony of the plaintiff. Some basic background facts must be given. As the plaintiff was leaving the bar he bumped into a young woman. He had a brief conversation and was then attacked by the assailant who was in a group of several people which the young lady had been with.
The plaintiff had not spoken with anyone in this group of people during the evening. He could not tell whether the assailant had been drinking, but the group he was with had been. They "were out dancing and drinking on the dance floor." The plaintiff had no memory of seeing the assailant in the bar prior to the incident. The group was just standing around socializing; he saw none of them do anything unusual. They were "just having a good time drinking and dancing." After bumping into a woman from the group the plaintiff said he apologized; that conversation took seconds. He "believed" he was struck right after that but could not "quite recall" due apparently to the severity of the attack. He had no forewarning of it; he did not see the assailant coming at him. He saw two security people that night. One in the bathroom and walking back from it he believes he saw another one.
Attached to the defendant's motion are statements taken by the police. One was from Brian Scott, an employee of the defendant apparently working security. He said he saw a group of patrons running and a group of co-workers running into the VIP Section. He did likewise and observed the assailant punch the plaintiff.
A friend of the victim, Mr. Vastakes was in the group of people the plaintiff went to the bar with and saw this "group of Asian girls" dancing near the Coppola table but they never had a problem with them. He saw the plaintiff accidently bump into one of the woman, he apologized but she seemed upset and the plaintiff asked why she was getting upset — "all of a sudden an Asian guy ran from the bar and hit Frank in the face with a heavy shot glass."
A recorded interview with the bartender was also produced by the defendant. He saw the assailant and his group, he was there two hours and had not been causing any problems — "he seemed like a nice guy." He did not appear intoxicated. There did not appear to be any problems between the plaintiff's group and the group the assailant was with — in fact there was no interaction, there were no problems. He agreed that all of a sudden Coppola was struck by the assailant with a glass. The bartender said "our" security appeared quickly on the scene after the attack. He had been working at the bar since it opened four years previously and he had observed only one random act of violence.
The court will now discuss the evidence submitted by the plaintiff in his opposition to the motion. The plaintiff characterizes the third count alleging negligent supervision as alleging that the defendants and their agents and or employees were negligent "in that they failed to provide sufficient security personnel, failed to take reasonable measures to intervene in an altercation between the plaintiff, the assailant and the assailant's party in a timely fashion, failed to adequately train and supervise employees so that they could properly monitor the behavior of patrons and failed to take reasonable measures to assure that large numbers of patrons would not be standing in close proximity to each other so physical contact could occur that might lead to an altercation."
The court is not persuaded that the issue of adequate training should be determinative of how this case should be decided. All the training in the world would not permit one to conclude that an altercation could have been prevented if it was a situation where the violence occurred unexpectedly or even within seconds of any sign of trouble. On the other hand a security person could have received thorough training but given what was or should have been observable to him or her be negligent in failing to intervene in such a way so as to prevent an attack. This is not some esoteric incident training is necessary to allow a security person to even recognize the possibility of danger.
Also the fact that the incident happened in a small V.I.P. room where people were necessarily in close contact, standing alone, does not permit a conclusion of negligence even security personnel were present. This is especially true in light of the fact that a friend of the victim, a bartender, and the very candid plaintiff all gave statements to the effect that the evening of the assault there had been no hostile interaction between the two groups of which the plaintiff and the assailant had been a part. Everyone appeared to be having a good time, socializing and dancing. There were no problems between the two groups let alone any discernible interaction.
The court agrees with the Bearman case, previously discussed, that in effect held that in locations where people can become intoxicated there is a duty to take reasonable precautions to prevent injury. And this implies at least some measure of security. But as a Florida case said where a youngster pushed another person causing injury at a Jai Alai center.
Usually, even where the duty to supervise may be found to exist the supervision need be general only as distinguished from special or immediate, it would not be necessary to furnish every patron with an usher or attendant . . . In the case before us it is not fairly inferable from the complaint that general supervision would have prevented the injury caused by wayward boy who did the pushing, Warner v. Jai Alai, 221 50 2d 777, 779 (Fla.App. 1969).
The defendant's brief lays out quite well the factors supporting this motion. The court can speculate that down the line, the plaintiff may have real trouble proving his case. But that is not a fair consideration when considering a motion for summary judgment. This is not the Winston v. Pool Hand Lukes, Inc. case. The statement of Brian Scott although contradictory and sometimes confusing does raise an issue of material fact that a jury will have to decide and raises enough question for the court to lead it to conclude it would be inappropriate to grant this motion. The statement was taken in January 2007 some four and one-half months after the incident. Mr. Scott, in the statement, said he had been employed by the defendant for about ten months. He described his job as being a "bouncer" and to "make sure . . . patrons are safe." He described that at his "main job." Given the nature of the establishment the Bearman case would indicate and the court agrees having such a person on the premises would be a reasonable requirement. The very fact that Mr. Scott was hired for those responsibilities indicates the management of the defendant had reached the same conclusion. One assumes that despite evidence submitted indicating this bar did not have a history of rowdy behavior, management concluded that due to the nature of its operations some security was necessary and if that was so, the security provided must be as effective as circumstances permitted. In Tait's Handbook of Connecticut Evidence, Tait Prescott 4th Ed. at Section 4.21.6, page 180 the authors cite Mascoela v. Wise, Smith Co., 120 Conn. 699, 701 (1935) and Hurley v. Connecticut Co., 118 Conn. 276, 282 (1934) for the proposition that: "If a defendant has established safety rules or issued orders for the safe conduct of the defendant's business, such rules or orders may be proved by the plaintiff as evidence of the appropriate standard of care as set by one in the business."
Mr. Scott remembered the events surrounding this incident and described what he saw that led up to the incident. He said he observed the group of Asian people. A young woman with that group was wearing a bright red dress — she apparently was the person Coppola bumped into. He then said the following.
A. Was — there was a Caucasian male. He came up to the group. (The court assumes this was Coppola.)
Q. Right.
A. He said hi to `em, the Asian couple you know, the whole group was ganging over there, didn't like what was going on. So they kept, you know, walking by, and I just looked, and I seen something was going on, but you know, I didn't necessarily think something would happen, so I didn't call for a detail, so the next thing you know I just go back to my post.
When asked if it was true that he had "no indication that somethin' was gonna erupt right away or somethin,' huh?" The following then was Scott's response.
A. No. Well it was just, you know, facial expressions, you know, by facial expressions, you could tell.
Q. Somethin' was going on.
A. Somethin' was going on. So I went back to my post and didn't think nothin' of it.
Q. Okay.
A. And, um, you know didn't think nothin' of it, because the group calmed down.
Q. All right.
A. The situation seemed calm at the moment.
He went on to say nobody seemed intoxicated and prior to the assault at issue he did not have to break up any fights. He did not hear harsh words at any time during the night. He never had seen the two groups involved in the incident before the night the assault happened. At one point he agreed with the question to the effect that from his years in the security field he had no reason "that somethin' like that was gonna happen like that then?"
Although there are internal contradictions in the Scott statement and his statement contradicts other people's who were deposed or interviewed in some respects, it does raise an issue of material fact. Given its most favorable reading from the plaintiff's point of view a jury could well conclude that from his observation of "ganging," his statements that he did not like what was going on, something was going on, I didn't necessarily think something would happen — what does "necessarily" mean in this context — reference to facial expressions, a jury could very well conclude he was alerted to a problem of possible violent behavior and should have at least walked over to the scene of activity. As far as whether he had time to respond to any explosion of violence even he had taken the opportunity to approach the groups, he very interestingly said things appeared to have calmed down which was a reason he didn't think "nothin' of it." That excuse for not responding suggests there was a time interval to react to the situation of possible danger. The "calming done" claim appears to be contradicted by Coppola and Mr. Vastakas.
Scott's statement raises questions about the incident and a material issue of fact as to whether the security personnel responded in an adequate common sense manner to a developing situation apart from the dictates of any training regimen that should have been given.
The motion for summary judgment is therefore denied.