Bar Patron Was Beaten to Death by Other Patrons—Defendants (Bar and Premises Owners) Were Unable to Demonstrate the Attack Was Not Foreseeable and their Negligence Was Not the Proximate Cause of the Attack—Defendants’ Summary Judgment Motion Properly Denied

The Second Department determined there were questions of fact whether a bar patron could have been protected from harm.  “The plaintiff’s decedent was assaulted by other patrons of a lounge on premises leased by the defendant Bartini’s Pierre, Inc., also known as Station Bar Corp., doing business as Bartini’s Lounge, and owned by the defendant Reiner & Keiser Associates (hereinafter together the appellants).” The appellants were not able to demonstrate prima facie that the attack was not foreseeable, that the attack could not have been prevented, that the appellants’ negligence was not the proximate cause of the attack, or that reasonable security measures to guard against criminal acts by third persons were taken:

  “Although a property owner must act in a reasonable manner to prevent harm to those on its premises, 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. Thus, the owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults” … .

Here, the appellants failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the complaint and all cross claims insofar as asserted against them. In support of their motion, the appellants submitted the deposition testimony of a witness to the incident, who testified that, shortly before the incident, he noticed the decedent being restrained by a security guard, but was not aware of the events which led the security guard to restrain the decedent. The witness testified that the security guard then proceeded to escort the decedent out of the premises, during the course of which the decedent was severely beaten by other patrons, resulting in his death. This evidence failed to demonstrate, prima facie, that the attack upon the decedent was not foreseeable, that the appellants lacked the opportunity to prevent the attack, or that any negligence on the appellants’ part was not a proximate cause of the incident … . The appellants also failed to demonstrate, prima facie, that they took reasonable security measures against foreseeable criminal acts of third parties … . Walfall v Bartini’s Pierre, Inc., 2015 NY Slip Op 03830, 2nd Dept 5-6-15