Villani v. Thirsty Turtle, Tri-Kelly’s, Inc., 199-201 East Post Road, Inc., and Roger Jones Supreme Court, Westchester County Index No. 03125/08 – August 8, 2013

Gerardo Villani alleged that while he was a patron at Thirsty Turtle, a White Plains  bar owned by Tri-Kelly’s, he was assaulted and battered by a Thirsty Turtle  security guard, defendant Roger Jones, without cause or provocation. Specifi- cally, Villani alleged that Jones, whom he claimed had a propensity toward violence  known to Tri-Kelly’s, violently struck him in the face, causing various head and neck  injuries, as well as traumatic brain injuries.
The plaintiff alleged, among other things, that Tri-Kelly’s was negligent by failing  to provide a safe environment for the plaintiff, allowing the plaintiff to be assaulted  and battered and providing inadequate security. The plaintiff claimed that Tri-Kelly’s  had both actual and constructive notice — actual notice in that the condition  and/or dangerous propensities of Tri-Kelly’s security personnel was/were allowed  to remain; constructive notice in that Tri-Kelly’s knew or should have known of the  propensities of its security personnel and allowed and permitted said dangerous  condition to be and remain for a long and unreasonable length of time without cor- rection or warning.
In sum and substance, Tri-Kelly’s contended that Jones’s conduct was outside the  scope of his employment. Specifically, that at the time the assault and battery took  place, the plaintiff was across the street from the club; and Jones, acting for pur- poses of his own, departed from the line of his duty, so that for the time being his  acts constituted an abandonment of his service to Tri-Kelly’s. Jones did not appear  at trial, but submitted an answer and testified at a deposition — essentially that he  was acting in self-defense against the plaintiff.
After hearing testimony from the plaintiff, two eyewitnesses to the altercation, the  manager of Thirsty Turtle and having been read portions of Jones’s deposition tes- timony, the jury found for the defendants — specifically that (1) there had not been  a battery (the jury was not charged on assault) committed by Jones (rendering the  question of whether he was acting within the scope of his employment academic);  and (2) Tri-Kelly’s had not been negligent in the manner in which it supervised its  employees on the night in question.
Of note is that the court issued PJI 2:55 — implied assumption of risk — based on  testimony that the plaintiff was a willing participant in a number of altercations on  the night in question. This conclusion was reached by the court based on the appli- cability of the recent Appellate Division, First Department case of Carreras v. Mor- rissania Towers, 2013 N.Y. App. Div. LEXIS 4808; 2013 N.Y. Slip Op 4893 (June 27,  2013) ([B]ecause [plaintiff] willingly entered and continued to participate in the fra- cas, [he] severed the causal link between his injury and any negligence defendants  may have committed . . . .”).
Contact:
Steven h. Rosenfeld was trial counsel for Tri-Kelly’s, Inc.
Steven h. Rosenfeld: 646-747-5105 or steven.rosenfeld@hrrvlaw.com
HRRV, Counselors At Law (NY)