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D'Alessandro v. Deck

United States District Court, Third Circuit

May 29, 2013

KAYLA D'ALESSANDRO
v.
CAVANAUGH'S RIVER DECK and STEVE J. WILSON.

MEMORANDUM

NORMA L. SHAPIRO, District Judge.

This action arises out of an alleged assault that occurred outside defendant Cavanaugh's River Deck ("Cavanaugh's") in June 2011. In this diversity action, plaintiff brings a claim of negligence against Cavanaugh's and claims of assault, battery, and negligence against Wilson. Cavanaugh's argues that it owed no duty to plaintiff because plaintiff was not on its premises when she was injured. Cavanaugh's also argues that even if it did have a duty to plaintiff, its security guards acted reasonably and could not have prevented plaintiff's injuries because the assault was not foreseeable. The defendant's motion for summary judgment will be denied because there are genuine issues of material fact for a jury to resolve.

I. Background

On the night of June 18, 2011, plaintiff, her cousin, and her cousin's friends went to Cavanaugh's bar for a bachelorette party. The group arrived in a bus around 11:00 p.m. Around 1:30 a.m. on June 19, plaintiff and her group left the bar to wait outside for a bus to come for them. While plaintiff's group was waiting, defendant Wilson and/or his friends were ejected from the bar by Cavanaugh's security. Wilson and his friends were arguing with Cavanaugh's security over the manner in which they were ejected.

At some point, Wilson began shouting insults at plaintiff's group standing nearby. Wilson allegedly struck plaintiff and caused her to fall. Plaintiff suffered from multiple bruises and lacerations to her face and body. Plaintiff alleges that the assault caused the need for extensive dental work, permanent scarring, and life-changing post-traumatic stress.

II. Legal Standard

Summary judgment is appropriate "where the pleadings, depositions, answers to interrogatories, admissions, and affidavits show there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); Meditz v. City of Newark, 658 F.3d 364, 369 (3d Cir. 2011). A defendant moving for summary judgment bears the initial burden of demonstrating that there are no facts supporting the plaintiff's claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-324 (1986). If the moving party meets its burden, the opposing party must introduce specific, affirmative evidence manifesting a genuine issue of material fact requiring a trial. See id. The court must draw all justifiable inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A genuine issue of material fact exists only when "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Id. at 248. The non-movant must present sufficient evidence to establish each element of its case for which it will bear the burden at trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).

III. Discussion

A. Theory of Liability

Cavanaugh's argues that it cannot be liable because the alleged assault took place on the sidewalk outside Cavanaugh's rather than on its premises. Cavanaugh's cites the Restatement (Second) of Torts ยง 344:

A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to
(a) discover that such acts are being done or are likely to be done, or
(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.

Cavanaugh's might not be liable under premises liability articulated in the Second Restatement. Section 344 speaks only of "liability to members of the public while they are upon the land" and may not include a person on the sidewalk adjacent to the business premises. See Morrison v. Molly Maguire's Pub, No. 1398, 2003 WL 25318233 (Pa. Com. Pl. Mar. 17, 2003) (pub not liable where plaintiff was injured in a fight on the sidewalk outside the pub); Ogozalek v. Goodfield, No. 91-CIV-5080, 1993 WL 761647 (Pa. Com. Pl. June 24, 1993) ("[T]here exists no precedent in Pennsylvania ...


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