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The Rogak Report: 02 April 2007 ** Premises Liability - Assaults **

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  • Lawrence Rogak
    Message 1 of 1 , Apr 2, 2007

      Sorscher v. M&S Deli Grocery, NYLJ 4/02/07 (Index no. 48431/03)
      (Supreme Court, Kings Co.) (Rivera, j)

      Plaintiff alleged that on October 7, 2002, at around 1:45 pm, while
      inside the premises of M & S Deli Grocery, located at 2013 Avenue U,
      Brooklyn, New York, defendants negligently initiated a violent
      confrontation using physical force against several persons which
      caused plaintiff to be pushed up against a freezer and sustain
      injuries. "There is no dispute," wrote the Court, "that Mun T. Oh is
      the sole owner of M &S Deli Grocery and that he, his wife and the
      plaintiff were present during a violent incident at the store in the
      early afternoon of October 7, 2002."

      Mr. Oh testified at his deposition that about five youths between the
      ages of 13 and 15 years old came into his store together. He
      recognized the youngsters as individuals who had been to his store on
      at least two prior occasions attempting to shoplift. He did not
      physically confront or orally argue with the youths in those prior
      incidents. On the date in question, Mr. Oh observed one of the youths
      near the cash register counter attempting to steal a carton of
      cigarettes. Mr. Oh grabbed and restrained the youth. The youth
      resisted and struck Mr. Oh causing his face to bleed. Mr. Oh got his
      temporary worker to restrain the youth while he chased the other
      youths out of the store. Mr. Oh, with the plaintiff's help, locked
      the other youths out of the store. Some of the youths tried to
      reenter. The youth involved in the altercation had never acted in a
      physically violent manner before the incident in question.

      Plaintiff testified that she frequently shopped at defendants'
      grocery store and arrived there at around 1:30 on October 7, 2002.
      She observed Mr. Oh and his wife behind the counter and four or five
      teenagers and a five year old boy walking around inside. She saw the
      five year old boy walk out with a bag of potato chips without paying
      for it. She heard Mr and Mrs. Oh tell one of the teenagers to give
      back what he was trying to steal. She then saw Mr. Oh orally argue
      with one of the youths and then come around from behind the counter
      to confront the youth. Mr. Oh started to shove the youths out the
      door. Some of the youths resisted Mr. Oh's attempt to force them out
      of the store. One of them shoved the plaintiff and returned to fight
      Mr. Oh. At the time the plaintiff was shoved, Mr. Oh was being
      pummeled by the youths. Plaintiff dialed 911 and locked the door of
      the store leaving some of the youths outside. Some of those youths
      tried to reenter and one of them threw a glass bottle at the store
      breaking the glass on the entrance door. The youths were yelling that
      they were going to come in and cut people. The police arrived
      promptly and led two of the youths away in handcuffs.

      After the melee, plaintiff noticed that the store displays and
      products were knocked over leaving a mess. She also saw that Mr. Oh
      was bleeding over his eye and his temporary worker was also bleeding.
      The entire incident from the time plaintiff entered the store until
      the time she was pushed into the freezer took between three and four

      Concerned about the extent of Mr. Oh's injuries, the plaintiff
      returned to the deli to see how Mr. Oh and Mrs. Oh were doing. She
      spoke with them, asked them how they were doing, hugged them both and

      On defendants' motion for summary judgment, the Court held, "While
      the owner of a public establishment has the duty to control the
      conduct of persons on its premises when it has the opportunity to do
      so and is reasonably aware of the need for such control (Scalise v.
      Kullen, 274 AD2d 426 [2nd Dept 2000] citing D'Amico v. Christie, 71
      NY2d 76 [1987], it has no duty to protect customers against an
      unforeseen and unexpected assault."

      "For purposes of deciding defendants' motion the court fully credits
      plaintiff's description of the events leading up to her injury.
      Plaintiff described a sudden and unexpected attack by the youths
      participating in an attempted petty theft. There is no dispute that
      the youths involved had never behaved in a physically violent manner
      in defendants' establishment before the date in question. There is
      also no dispute that the entire incident from the time plaintiff
      entered defendants' store to the time that she was injured took no
      more than five minutes."

      "Although defendants had a duty to exercise reasonable care to
      protect its customers, the sudden and unexpected physical attack upon
      plaintiff is not a situation that the defendants could reasonably
      have been expected to have anticipated or prevented (Davis v. City of
      New York, 183 AD2d 683 [1st Dept. 1992]). The court finds that Mr.
      Oh's conduct in attempting to restrain a youth who was attempting to
      steal from him was lawful and reasonable as a matter of law."

      "Plaintiff's opposition papers failed to establish the occurrence of
      a prior similar incident at that store or to raise an issue of fact
      regarding the forseeability of the incident in question. Thus,
      viewing the proof in the light most favorable to plaintiff, the
      court, nevertheless, concludes that defendants made a prima facie
      showing that they breached no duty to the plaintiff. Viewing the same
      proof in the light most favorable to the defendant, the court finds
      that the plaintiff failed to establish a prima facie case for the
      imposition of liability upon the defendants ( Jones v. Great American
      Grocery Store, 234 AD2d 940 [4th Dept. 1996] citing Lacy v. Guthrie
      Clinic, 184 AD2d 1057-1058 [4th Dept 1992])."

      "Defendants motion for summary judgment dismissing the complaint is
      granted. Plaintiff's motion for summary judgment imposing liability
      on the defendants based on their negligence is denied."

      Larry Rogak
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