Second Department Finds Wantagh Bar Is Not Liable For Death from a Fight Outside of Premises

On December 26, 2018, the Appellate Division Second Department upheld the dismissal of a wrongful death suit against a Wantagh bar.  The case involved a 2012 fight in a public roadway outside of Shoooters Tiki Bar & Sports Grill between a Levittown volunteer firefighter and another man.  The firefighter suffered brain injuries in the fight and was in a coma for 17 days before passing. The criminal trial against the other man resulted in an acquittal due to a self-defense claim.  However, the executor of the firefighter’s estate brought a civil claim against Shooters, claiming that they owed a duty to prevent harm to the firefighter.

Shortly after the case was brought in Nassau County Supreme Court, Shooters moved for summary judgment arguing that they did not owe any duty to persons outside their premises, and, in any event, they could not be held liable for an unforeseeable and unexpected assault. On April 6, 2016, the Nassau County Supreme Court granted the bar’s motion for summary judgment dismissing the claim as against them. The estate then appealed.

In deciding the case, the Second Department recognized that landowners generally have a duty to act in a reasonable manner to prevent harm to those on their property.  This duty includes controlling the conduct of third parties on their property when they have the opportunity to control such persons and are aware of the need for control. The duty has also been found to extend to the actions of an intoxicated guest.  With that being said, the Court also recognized that the duty only extends to injuries occurring on the defendant’s property, or in an area under the defendant’s control.  Moreover, the Court acknowledged that regardless of the place of occurrence, “a landowner is not an insurer of a visitor’s safety, and has no duty to protect visitors against unforeseeable and unexpected assaults.”

In the case at issue, the bar submitted evidence that the altercation occurred on the public roadway, outside of the bar’s premises and control. Additionally, they provided evidence that the argument was sudden and unforeseeable. In opposition to the motion, the plaintiff failed to raise any triable issue of fact.  Thus, the Second Department upheld the Nassau County Supreme Court’s determination, which granted summary judgment in favor of the defendants.

To read a full copy of the Second Department’s Decision, click here.

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