NOTE THAT THE ACCREDITATION OF THIS COURSE EXPIRES ON AUGUST 19, 2020
THE COURSE WILL NO LONGER BE AVAILABLE AFTER AUGUST 19, 2020
LIABILITY IN NEGLIGENCE FOR AN ASSAULT BY A THIRD PARTY—PART 1 of 3
Course #TRTo740 (Transitional and Nontransitional) Prerecorded Audio (On Demand/Recorded-Audio)
Hybrid Accreditation for the Period August 20, 2018, through August 19, 2020
This Course Is Appropriate for Newly Admitted and/or Experienced Attorneys
Areas of Professional Practice: 3.5 CLE Credit Hours
Note: Before Relying On Any Decision Summarized on this Site, Including the Summaries in the CLE Written Materials, Make Sure It Remains Good Law Using the Method You Trust for that Purpose. See the Discussion Under “Shepardize” in the “How to Use the New York Appellate Digest” Section on the Home Page.
The course, in three parts, organizes selected decisions released between January 2013 and September 2017 which address liability in negligence for an assault on the plaintiff by a third party. For example, the liability of a landlord for an attack on a tenant in an apartment house or office building, the liability of a bar for an attack by or on a patron, the liability of employers, including municipalities, for an attack on or by an employee, the liability of a county for an inmate on inmate assault, the liability of a residential facility for an assault on or by a resident, the liability of a school district for an attack on or by a student, and the liability of a homeowner for an attack on or by a guest.
The course includes decisions issued through September 2017. (The NYS CLE Board’s approval process takes time, and creating this new website as a platform for the CLE podcast took time, hence the September, 2017 cut-off.) You can easily call up all the decision-summaries on this topic which have been posted on this site since September, 2017, by using the search function (panel on the right). Choose the category “Negligence” from the drop-down menu, choose “October 1, 2017” as the start date for the search (and today as the end date), type “third party assault” (in quotes) in the “Search by Keywords” line, and click on “Search.” That will bring up “post-September-2017” decision-summaries in this area of the law.
How to Get Credit for this Course
As you listen to the course, you will hear four verification codes. After finishing all three parts of the course, print and fill out the attached “Attorney Affirmation,” including the four verification codes, your name, your signature, and the date you completed the course. Please also fill out the attached “Evaluation Survey.” Scan the “Attorney Affirmation” and the “Evaluation Survey” and email them as attachments to me, Bruce Freeman, at NewYorkAppellateDigest@gmail.com. I will then email to you the completed “New York CLE Certificate of Attendance,” as an attachment, awarding you credit for the 3.5-hour course. Or, if you wish to send and receive hard copies by regular mail, send the “Attorney Affirmation” and “Evaluation Survey” to New York Appellate Digest, LLC, 126 Colonial Village Road, Rochester, New York 14625 and make sure to include your return address.
Click on the links below for the written materials (“Liability in Negligence for an Assault on a Third Party”—169 pages), the “Attorney Affirmation” (the “verification code” form) and the “Evaluation Survey.”
Written Materials–Liability in Negligence for an Assault by a Third Party
Topics Covered in Part 1 (page references are to the written materials) 1 Hour 27 minutes
[Links to the Other Two Parts of this Course: Part 2, Part 3]
LIABILITY IN NEGLIGENCE FOR ASSAULT BY A THIRD PARTY.. 5
INTRODUCTION.. 6
OVER-ARCHING ISSUE: HOW THE APPELLATE COURTS ANALYZE SUMMARY JUDGMENT MOTIONS.. 7
I.ASSAULTS ON TENANTS IN APARTMENT HOUSES AND OFFICE BUILDINGS.. 8
ASSAULT IN AN UNSECURED COURTYARD OUTSIDE APARTMENT BUILDING.. 8
BROKEN ENTRY DOOR LOCK—LANDLORD DEMONSTRATED LACK OF NOTICE.. 10
ATTACK MUST BE BY AN INTRUDER, NOT TENANT OR INVITEE.. 12
BROKEN ENTRY LOCK/ATTACK BY AN INTRUDER.. 13
FORESEEABILITY-FORESEEABILITY NOT ADDRESSED IN DEFENDANT’S MOTION PAPERS.. 15
FORESEEABILITY—ATTACK NOT FORESEEABLE.. 17
CHECKLIST OF ISSUES RAISED IN THE “LIABILITY FOR THIRD-PARTY ASSAULTS IN APARTMENT HOUSES AND OFFICE BUILDINGS” CATEGORY.. 19
II. ASSAULTS ON OR BY BAR OR RESTAURANT PATRONS.. 21
ASSAULT OUTSIDE THE BAR, PLAINTIFF APPROACHED THE GROUP OF PEOPLE ARGUING WITH HIS FRIENDS AND WAS ASSAULTED.. 21
LIABILITY FOR ASSAULT UNDER THE DRAM SHOP ACT.. 23
LIABILITY OF AN OUT OF POSSESSION LANDLORD FOR AN ASSAULT ON THE LEASED PROPERTY.. 24
NO LIABILITY FOR AN UNFORESEEABLE, SUDDEN, UNEXPECTED ASSAULT.. 25
QUESTION OF FACT RAISED ABOUT WHETHER THE ATTACK BY PATRONS, WHICH CAUSED THE DEATH OF PLAINTIFF’S DECEDENT, WAS UNFORESEEABLE BECAUSE IT WAS SUDDEN AND UNEXPECTED.. 27
COLLATERAL ESTOPPEL DOCTRINE MANDATED SUMMARY JUDGMENT AGAINST THE ASSAILANT BASED UPON HIS PLEA ALLOCUTION.. 29
CHECKLIST OF ISSUES RAISED IN THE “BAR OR RESTAURANT OWNERS’ LIABILTY FOR ATTACKS ON OR BY BAR OR RESTAURANT PATRONS” CATEGORY.. 31
III. EMPLOYER LIABILITY IN NEGLIGENCE FOR ASSAULTS BY EMPLOYEES.. 34
ASSAULTS BY OFF-DUTY MUNICIPAL EMPLOYEES.. 34
ASSAULT ON CHILD BY CITY EMPLOYEE WHILE CHILD WAS IN EMPLOYEE’S CARE.. 36
ASSAULT BY SECURITY GUARD (CONTRACTOR) 38
ASSAULT BY SECURITY GUARD (INDEPENDENT CONTRACTOR) 39
SEXUAL ASSAULT BY AN EMPLOYEE OF A RESIDENTIAL FACILITY.. 41
ASSAULT BY OFF-DUTY POLICE OFFICERS.. 43
ASSAULT BY ON-DUTY POLICE OFFICERS.. 45
SEXUAL ABUSE BY TEACHER.. 47
ABUSE BY SCHOOL BUS MONITOR.. 49
REMINDER OF THE NOTICE OF CLAIM REQUIREMENT FOR SUITS AGAINST MUNICIPALITIES AND SCHOOL DISTRICTS.. 51
NO NEGLIGENT ASSAULT CAUSE OF ACTION IN NEW YORK.. 53
EFFECT OF AN ASSAULT LIABILITY EXCLUSION FROM A BAR’S INSURANCE POLICY.. 54
CHECKLIST OF THE ISSUES RAISED BY THE CASES IN THE “EMPLOYER LIABILITY IN NEGLIGENCE FOR ASSAULTS BY OR ON EMPLOYEES” CATEGORY 55