Philly nightclub claims stabbing victim has not established 'reckless' conduct

By Nicholas Malfitano | Nov 29, 2018

PHILADELPHIA – A nightclub customer has launched legal action against the establishment, its security company and a bouncer who allegedly stabbed him in an altercation outside the nightclub nearly two years ago.

Kevin Perry of Philadelphia filed suit in the Philadelphia County Court of Common Pleas on Nov. 2 versus Mayfield Social Club and Esbert, LLC (both doing business as “Voyeur Nightclub”), Strong Tower Security, LLC and Lavar McCall, also all of Philadelphia.

On Dec. 18, 2016, the amended lawsuit states Perry was a patron of Voyeur Nightclub in Philadelphia at 3:30 a.m. At that time, the nightclub was crowded and plaintiff accidentally brushed against one of the club’s bouncers, defendant McCall. At that time, McCall allegedly turned to Perry and said he was, “Not to touch me, f—got.”

From there, Perry and McCall engaged in a verbal argument and when Perry was exiting the club, McCall allegedly started a fight with him. Perry’s friends attempted to assist him but were restrained by other bouncers when they saw McCall was carrying a knife.

“Suddenly and without warning, the defendant, Lavar McCall, began to intentionally, recklessly and/or negligently stab the plaintiff, cutting Kevin Perry with the knife on his right forearm, head, right side of chest, left hand, knee and right triceps,” the complaint reads.

As a result, Perry suffered occipital scalp laceration and soft tissue swelling, laceration and soft tissue swelling along the fifth metacarpal bone, laceration of left his left hand, laceration of his right thorax front wall without penetration into the thoracic cavity, laceration of his upper-left arm, permanent scars and permanent aesthetic deformity.

Furthermore, Perry incurred thousands of dollars in expenses for medical treatment, including but not limited to, $7,118 for two visits to Thomas Jefferson University Hospital on Dec. 18, 2016 and Jan. 6, 2017.

Through preliminary objections filed Nov. 7, the Voyeur Nightclub defendants argued that all claims stating desire for recklessness and punitive damages, plus the count for assault and battery should be stricken and dismissed with prejudice.

“Plaintiff has alleged no basis for entitlement to such an extreme remedy. There is nothing to even hint at recklessness, wantonness, an evil motive or reckless indifference on the part of moving defendants. In addition, plaintiff cannot sustain a claim of assault and battery against moving defendants as a matter of law, so Count V must be dismissed,” the suit states.

Rather, the nightclub defendants said the allegations only rose to the level of ordinary negligence and not to one needed to support claims of outrageous and reckless conduct.

“Additionally, the conduct of the bouncer as alleged, if true, was disproportionate, excessive and dangerous in response to an accidental contact between plaintiff and the bouncer on a crowded night at the club. While the employer of the bouncer may expect that the bouncer may use reasonable force to deal with an aggressive and unruly bar customer, plaintiff’s allegation that the bouncer used a knife to attack him is so excessive and different in kind than any force reasonably authorized, that moving defendants cannot be vicariously liable as a matter of law,” according to the complaint.

For counts of negligent hiring and retention, negligence, wrongful and/or negligent hiring, retention and/or training, assault and battery, the plaintiff is seeking compensatory and punitive damages in excess of $50,000, plus interest, costs, delay damages and other appropriate relief.

The plaintiff is represented by Alan E. Denenberg of Abramson & Denenberg, in Philadelphia.

The defendants are represented by Arnold E. Capriotti Jr. and Joseph A. Ricchezza of Salmon Ricchezza Singer Turchi, also in Philadelphia.

Philadelphia County Court of Common Pleas case 180801065

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com

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