This was originally published on the SGR Blog.
Were Owner/Operators Liable for Injury?
Marcos Illescas alleged in his complaint that he suffered personal injuries after he was allegedly assaulted both inside and in front of a restaurant located at 95-35 40th Road in Queens, City and State of New York. Illescas asserted causes of action for negligent hiring, retention, and supervision against Sabor Latino I, Corp., Sabor Latino Corp., Sabor Latino Events Corp., Sabor Latino Lounge, Inc. and “ABC Security Company” (a fictitious name, real name unknown).
The Sabor’s moved for an order granting summary judgment and dismissing the causes of action against them for negligent hiring, retention, and supervision. The Sabor’s contended that they did not owe Illescas a duty of care with respect to the incidents that allegedly occurred. Specifically, they argued that they were not responsible for the alleged assault because they contracted with an individual who was responsible for hiring and managing the security staff for the premises and the person that Illescas claimed assaulted him was not their employee.
The Sabor’s also contended that they could not be held vicariously liable for the personal injuries to Illescas given that the actions purportedly taken by the security guard were not within the scope of that security guard’s employment and that the security guard had no history of, or a propensity for, the violent acts as alleged.
Illescas opposed the motion and contended that the motion should be denied because the Sabor’s failed to provide sufficient evidence to meet their prima facie burden. Specifically, he argued that while the Sabor’s contended that the security guards were hired by an independent contractor, they did not provide a contract detailing the agreement between the Sabor’s and the independent contractor or any other proof supporting their contentions. There were issues of material fact as to whether the security worker, who purportedly forcibly removed Illescas from the restaurant, was acting within the scope of his employment with the Sabor’s.
Illescas contended that he was injured at the restaurant owned and managed by the Sabor’s as a result of the actions of security guards who were working there. When asked who he was with at the restaurant, he responded “[m]y high school friends.” When asked how the situation occurred, Illescas initially stated that he had returned from the bathroom and “I approached to see what was happening, and they were putting force on Hector because he requested drinks that he did not pay.”
When asked what happened next, he stated “[a]nd then suddenly one of them grabbed me from behind on the neck with a left hand and forced me out of the restaurant.” When asked who took part in this purported altercation on behalf of the restaurant, he stated “[t]here were two bouncers and a gentleman that was with a suit on that he’s always there.” He further stated that “I had a bouncer behind me who grabbed me by the back through the neck and forced me out, without me doing anything.” When asked to more specifically describe the security guards’ actions, Illescas stated that “[h]e was suffocating me, taking me out towards the exit, urn, by the street and hitting me at the same time.” He also stated that the security guard “threw me on the floor, and that’s how I fractured part of my face.”
The Court found that the Sabor’s failed to establish that they could not be held liable for the alleged actions of the parties who allegedly assaulted Illescas. They claimed that the security guards were in the employ of an independent contractor. However, the Sabor’s failed to 1) identify the independent contractor with any specificity; 2) indicate whether there was a contract between that independent contractor and the Sabor’s; and 3) what the terms of the agreement were.
To support their position, the Sabor’s relied exclusively on the deposition testimony of Juan Salvador Inga, the purported president of Sabor Latino Corp. When asked whether he was working at the restaurant the night in question, he stated”[y]es.” When asked if he was familiar with a man named David that managed security for the restaurant, Inga stated “[y]es.” When asked if he knew what David’s last name was, he answered “[n]o.” When asked what David’s responsibility was, Inga stated “[h]e was in charge of security.” When asked to explain David’s role, Inga stated “[w]e would pay David and David would pay his employees, and then he would also be the one in charge to assign the positions, the jobs to the other people.”
When asked if there was a contract or other written agreement between himself and/or the Sabor’s and David, Inga stated “I don’t remember.” When asked if he knew whether David had a company that provided security that David formed himself or that David worked for such a company, Inga stated “I don’t know.” That testimony, taken together was insufficient to show that as a matter of law the Sabor’s could not be held liable for Illescas’ claims because the incident alleged was the result of conduct by employees of an independent contractor.
The Court also found that the Sabor’s failed to establish that the unnamed security guard was not acting within the scope of his employment with them. When a business employs security guards or bouncers to maintain order, the use of physical force may be within the scope of their employment. Inga provided no testimony regarding conversations he had, or anyone else representing the Sabor’s had, with David regarding the conduct or training of the security guards. Instead, when asked about the behavior of the security guards on the night in question, Ingas stated that he told David after the conflict occurred “[t]hat wasn’t the way to remove a person. That wasn’t part of the job.” Although Ingas stated that the unnamed security guard may have been overly aggressive, he did not say whether the security guard was acting within the scope of his employment generally. An employee’s action may be considered to be within the scope of employment when it is performed while the employee is engaged generally in the business of the employer, or if the act may be reasonably said to be necessary or incidental to such employment.
The Court found that the Sabor’s failed to adequately address whether David or the unnamed guard had a prior violent history at the restaurant. When Ingas was asked whether he knew whether David was ever convicted of a crime he stated “[n]o.” When Ingas was asked whether he had ever asked David that question he stated “no.” When asked if he had ever asked David if he had a license to perform security work, Ingas stated “[n]o.”
The Sabor’s motion for summary judgment dismissing Illescas’ complaint was denied.