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NY Court Reaffirms Principle that Owner of Public Establishment Has No Duty to Protect Patrons

New York’s Appellate Division, Second Department recently reaffirmed the principle that an owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults.

In Hegarty v. Tracy, 125 A.D.3d 804 (2d Dept. 2015), the plaintiff was injured when he was struck on the head with a broomstick by an assailant while in the parking lot outside a bar and restaurant owned by the defendant. Plaintiff alleged, among other things, that the defendant was negligent in failing to protect the injured plaintiff from the assault.

Defendant moved for summary judgment and submitted evidence demonstrating that two groups of patrons, one of which included the injured plaintiff, were engaged in a verbal dispute before they left the bar and went outside to the parking lot. Once outside, the argument turned into a physical altercation between two women, and the injured plaintiff attempted to intervene. Within seconds of the injured plaintiff's intervention, he was struck from behind by the assailant.

In New York, “[l]andowners, as a general rule, have a duty to exercise reasonable care to prevent harm to patrons on their property.” Kranenberg v. TKRS Pub, Inc., 99 A.D.3d 767, 768 (2d Dept. 2012). “However, an owner's duty to control the conduct of persons on its premises arises only when it has the opportunity to control such conduct, and is reasonably aware of the need for such control.” Kranenberg v. TKRS Pub, Inc., 99 A.D.3d at 768; see Afanador v. Coney Bath, LLC, 91 A.D.3d 683, 683-684 (2d Dept. 2012); Giambruno v. Crazy Donkey Bar & Grill, 65 A.D.3d 1190, 1192 (2d Dept. 2009). An “owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults.” Giambruno v. Crazy Donkey Bar & Grill, 65 A.D.3d at 1192; see Kranenberg v. TKRS Pub, Inc., 99 A.D.3d at 768; Afanador v. Coney Bath, LLC, 91 A.D.3d at 683-684.

The Court held that the defendant established his prima facie entitlement to judgment as a matter of law dismissing the negligence cause of action with evidence demonstrating that they could not have reasonably prevented the unforeseeable and unexpected assault upon the injured plaintiff .

In future cases, this decision can be used to assist in defending negligence claims based on assaults even with evidence of a prior verbal dispute. Plaintiffs often argue that the situation escalated from a verbal dispute to a physical confrontation making the assault foreseeable and defendants aware of the need to control the conduct of persons on their premise; this decision undercuts that frequent tactic. Although there was some evidence of a verbal dispute prior to leaving the bar, it did not alter the Court’s determination that the assault upon the plaintiff was unforeseeable and unexpected. Additionally, evidence of the verbal dispute while inside the premises also did not rise to the level of making defendant reasonably aware of the need to control the conduct of persons on its premises.

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