Campolongo v DR & RD, Inc. d/b/a Brazen Fox
Attorneys and Parties
Brief Summary
Premises liability and negligent security at a bar/restaurant; negligent hiring, retention, supervision, and training of security personnel.
The Supreme Court, Westchester County, denied defendants’ motion for summary judgment on the first, second, and fourth negligence-based causes of action.
The Appellate Division reversed and granted summary judgment dismissing the first, second, and fourth causes of action.
Defendants established adequate on-premises security and that the assault was not reasonably foreseeable; plaintiffs failed to raise triable issues. Additionally, the guards acted within the scope of employment, barring negligent hiring/retention/supervision/training claims under respondeat superior.
Background
In September 2019, plaintiff Marc Campolongo was assaulted outside the Brazen Fox by two unknown individuals who had exited the establishment. Plaintiffs sued the bar owner (DR & RD, Inc. d/b/a Brazen Fox) and its security guards (William P. Harding and Ruddy Delacruz) for negligence, alleging inadequate security and negligent hiring/retention/supervision/training. After discovery, defendants moved for summary judgment dismissing the first (claims against Brazen Fox), second (against Harding), and fourth (against Delacruz) causes of action.
Lower Court Decision
The Supreme Court, Westchester County (Murphy, J.), denied those branches of defendants’ motion seeking summary judgment on the negligence-based claims.
Appellate Division Reversal
Reversing, the court held defendants made a prima facie showing that security was adequate and the off-premises assault by unknown assailants was not reasonably foreseeable based on prior similar incidents in proximity. Plaintiffs offered no evidence creating a triable issue. The court also held the security guards acted within the scope of their employment, which precludes separate claims for negligent hiring, retention, supervision, and training; plaintiffs failed to show the employer knew or should have known of a propensity for the conduct at issue.
Legal Significance
Reaffirms that premises owners owe a duty to protect lawful visitors only from reasonably foreseeable criminal acts of third parties, assessed by prior similar incidents and circumstances, and that unforeseeable, unexpected assaults do not create liability. Clarifies that when security personnel act within the scope of employment, negligent hiring/retention/supervision/training claims generally cannot proceed alongside respondeat superior liability absent proof of the employer’s knowledge of a dangerous propensity.
Absent evidence of foreseeability or inadequate security, bars/restaurants are not liable for sudden third-party assaults; and where security guards act within the scope of employment, negligent hiring/retention/supervision/training claims fail without proof of prior known propensities.