Judge refuses to dismiss negligence case against Phila. bar initiated by assaulted patron

By Jon Campisi | May 31, 2013

A federal judge in Philadelphia has refused to dismiss a negligence case against a city

A federal judge in Philadelphia has refused to dismiss a negligence case against a city

drinking establishment being sued by a patron who claims she was injured after being assaulted outside of the business.

U.S. District Judge Norma L. Shapiro, sitting in the Eastern District of Pennsylvania, wrote in a May 29 memorandum and order that litigation against Cavanaugh’s River Deck could proceed because there exists genuine issues of material fact best left to a jury to resolve.

Kayla D’Alessandro, a Massachusetts resident, originally filed suit against Cavanaugh’s and co-defendant Steve J. Wilson back in January 2012, but the case was subsequently removed by the defense to the federal courthouse.

The plaintiff claims she sustained injuries on June 18, 2011, after being assaulted by an allegedly intoxicated Wilson, a fellow bar patron, after he and the group he was with were escorted out of the bar by security personnel.

D’Alessandro accuses Wilson of assault and battery for his alleged actions, but the plaintiff, who had been attending a bachelorette party with her cousin on that night, also claims that Cavanaugh’s was negligent for hiring unqualified bartenders to recognize over-intoxication, and unqualified bouncers who should have realized they were placing the woman in harms way when they ejected Wilson and the other allegedly drunk patrons from the establishment, and right into the path of D’Alessandro.

The Pennsylvania Record previously reported on D’Alessandro’s case.

The plaintiff is being represented by Philadelphia attorney Louis Silverman, of the firm Silverman, Trotman & Schneider.

D’Alessandro alleges in her lawsuit that she was punched by Wilson while she and the party she was with were waiting outside of the bar for a bus to take them home.

After Wilson allegedly struck D’Alessandro, the woman claims to have fallen to the ground, where she sustained multiple bruises and lacerations to her face and body.

The plaintiff also claims she needed extensive dental work to correct her injuries, and that she has experienced permanent facial scarring and “life-changing post-traumatic stress.”

Attorneys for Cavanaugh’s subsequently filed for summary judgment, the record shows, arguing that it cannot be held liable because the alleged assault took place on the sidewalk outside of the business rather than on bar premises.

The defense cited a section of the Restatement (Second) of Torts, which says a business may not be held liable for injuries to a person on a sidewalk adjacent to a business.

The judge, however, ruled that this case is governed by the Third Restatement of Torts, which the U.S. Third Circuit Court of Appeals has predicted would be adopted by the Pennsylvania Supreme Court.

Under those rules, a possessor of land has a duty of reasonable care for “artificial conditions or conduct on the land that poses a risk of physical harm to persons or property not on the land,” Shapiro notes in her memorandum.

Under the Third Restatement, the judge wrote, a property owner has a duty of care if the land is commercial, or if the possessor knows of the risk or if the risk is obvious.

The judge said while it is too early in the litigation to tell, it’s possible that the plaintiff’s argument that the business is liable because it created a risk on the adjacent public walkway when its employees ejected the drunken patrons has merit.

“Cavanaugh’s liability is not confined to liability that might arise from its status as a landowner,” Shapiro wrote. “Cavanaugh’s might be liable if its security personnel were acting in the course of their employment or if the security personnel acted with apparent authority.”

Shapiro also wrote that the bar might also be liable for failing to prevent negligent or other tortious conduct by its agents.

“A jury might reasonably conclude that Cavanaugh’s had a duty to exercise reasonable care because its conduct created a risk of physical harm, whether the conduct or the harm occurred on or off the business’s premises,” the judge wrote. “Cavanaugh’s might be liable, directly or vicariously, even though the alleged assault took place on the sidewalk outside Cavanaugh’s bar.”

While she denied the defendant’s motion for summary judgment, the judge also stayed the civil action pending the conclusion of any pending criminal proceedings relating to the assault.

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