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THE SPA PATRON WHO SEXUALLY ASSAULTED PLAINTIFF WAS INVOLVED IN A FIGHT IN THE SPA BUT WAS ALLOWED TO REMAIN; THE FIGHT DID NOT RENDER THE SUBSEQUENT SEXUAL ASSAULT OF THE PLAINTIFF FORESEEABLE BY THE DEFENDANT SPA (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s action against defendant spa based on a sexual assault by a spa patron should have been dismissed. The patron pretended to be an employee of the spa and offered plaintiff a massage. From the standpoint of the defendant spa, the patron’s assault was not foreseeable. The fact that the assailant was involved in a fight before the sexual assault and was allowed to remain in the spa did not render the sexual assault foreseeable:

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 … . To establish foreseeability based upon prior history of third-party criminal behavior, the criminal conduct at issue must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location … .

Contrary to plaintiff’s allegations, it was not reasonably foreseeable that a fight occurring amongst male patrons, who had been drinking there, could lead to the alleged assailant pretending to be an employee of the spa and then sexually assaulting her … . The prior altercation noted by plaintiff was completely unrelated to her situation and thus cannot support a claim that the instant assault was a foreseeable consequence of defendant permitting the men involved in the altercation [to remain at the premises … . Memeh v Spa 88, LLC, 2023 NY Slip Op 06315, First Dept 12-7-23

Practice Point: Here a spa patron pretending to be a masseuse employed by the spa sexually assaulted the plaintiff. The facts that the patron had been drinking and was involved in a fight but was allowed to remain in the spa did not render the subsequent sexual assault foreseeable.

 

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