Question of Fact Whether Property Owners Owed a Duty to Protect Plaintiff from an Assault During a Fair on the Premises

he Second Department determined there was a question of fact whether the defendants, who held a fair on their premises, were liable to plaintiff who was attacked by two teenage boys during the fair. There was evidence a security guard had been notified that a fight was about to break out and did nothing:

“While landowners in general have a duty to act in a reasonable manner to prevent harm to those on their property, an owner’s duty to control the conduct of persons on its premises arises only when it has the opportunity to control such persons and is reasonably aware of the need for such control” … . Thus, the owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults … .

Here, the church defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence which demonstrated that the infant plaintiff’s injuries resulted from an unexpected and unforeseeable assault … . However, in opposition, the plaintiffs raised a triable issue of fact as to whether the assault of the infant plaintiff was unexpected and unforeseeable. The plaintiffs presented a transcript of the deposition testimony of the infant plaintiff’s girlfriend, who explained that, approximately 30 minutes before the subject incident, she spoke to a security guard at the fair and advised him that there was a “confrontation” and that it was “getting worse.” Bisignano v Raabe, 2015 NY Slip Op 04081, 2nd Dept 5-13-15