William Caporossi v. Pete's Bar & Lounge et al. (2011)

MEMORANDUM OF DECISION

FACTS

On August 10, 2007, at approximately 11:30 p.m. the Plaintiff, William Caporossi, was a patron at Pete's Bar & Lounge, an establishment located at 250 Captain Thomas Boulevard, in the City of West Haven.   The Defendant, Peter P. Merola, is the Permittee for the night club.

The Plaintiff contends that he was engaged in a game of pool, when suddenly, and without warning, he was struck across the forehead with a pool cue, causing him to suffer personal injuries and damages.   The Plaintiff does not know the identity of the individual who wielded the pool cue.

This action was instituted against Pete's Bar & Lounge, and the Permittee.   A Revised Complaint, dated December 2, 2008, contained six counts, including two loss of consortium counts filed on behalf of Danielle Caporossi, the wife of Peter Caporossi.

Counts one and two alleged negligence against Pete's Bar & Lounge and Peter Merola respectively, while counts three and four pled the loss of consortium claims.

Count five alleges a claim of inadequate security against Pete's Bar & Lounge, and count six claims that Peter Merola, in his individual capacity, provided inadequate security to the Plaintiff.

On January 26, 2009, the Court, Tyma, J., granted a motion to strike counts one through four, inclusive.

Both of the named defendants now move for summary judgment on the remaining counts, counts five and six.   They maintain that no genuine issue of material fact exists, because there was no warning of the impending assault, and neither the night club or the Permittee had an opportunity to thwart the attack, prior to the unknown assailant striking William Caporossi.

Both defendants claim that the attack was not reasonably foreseeable, and that the foreseeability that harm may result if action is not taken, is a prerequisite to a claim that harm was caused, due to a failure to act.

In his opposition to the motion for summary judgment, the Plaintiff has submitted an affidavit, dated February 23, 2011.   The Plaintiff's affidavit states that Peter Merola refused to divulge the Identity of the assailant, when the Plaintiff inquired of him, following the incident.

William Caporossi alleges that the Permittee described the perpetrator, and those who accompanied him, as “crazy,” and said that they would “kill him,” if he disclosed their names to the Plaintiff.

These claims are at variance with statements allegedly made by Peter Merola to the West Haven police, and repeated during his deposition.   Peter Merola informed the police that he had no idea who struck William Caporossi, and stated in his deposition that he never saw them in his establishment prior to the evening of the assault.   The Plaintiff insists that his affidavit has raised a genuine issue of material fact, sufficient to deny the defendants motion for summary judgment.

STANDARD OF REVIEW

A trial court may appropriately render summary judgment when documentary and other evidence demonstrate that no genuine issue of material fact remains between the parties, and the moving party is entitled to judgment as a matter of law.  Daily v. New Britain Machine Co., 200 Conn. 562, 568 (1986);  Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11 (1983).   A material fact has been defined as one which will make a difference in the result.   United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379 (1969).

The party moving for summary judgment has the burden of showing the absence as to any genuine issue of all material facts.  Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105 (1994).   The burden is on the moving party to show quite clearly what the law is, and that any real doubt as to the existence of a material fact has been excluded.  Fogarty v. Rashaw, 193 Conn. 442, 445 (1984);  Yarow v. Teal Industries, Inc., 178 Conn. 262, 268 (1979).

In determining a motion for summary judgment, a trial court must view all facts and all of the evidence in the light most favorable to the nonmoving party.  Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202 (1995).   The test to be applied is whether the party seeking summary judgment would be entitled to a directed verdict on the same facts.  Neuhaus v. DeCholnoky, 280 Conn. 190, 199 (2006).

PLAINTIFF'S AFFIDAVIT RAISES A GENUINE ISSUE AS TO MATERIAL FACTS

William Caporossi claims that the Permittee of Pete's Bar & Lounge, Peter Merola, admitted that he knew the identity of the individuals who perpetrated the assault, and that they had a reputation for violent behavior.   He further claims that Peter Merola described the portion of the premises where the attack occurred as a “snake pit.”

The trier of fact may consider this testimony, at the time of trial.   Among the recognized exceptions to the hearsay exclusionary rule, is that for the admission of a party.  State v. Stepney, 191 Conn. 233, 250 (1983).   The words and acts of a party opponent are generally admissible against him, under the admission exception.  State v. Weedson, 227 Conn. 1, 15 (1993);  O'Brien v. John Hancock Mutual Life Insurance Co., 143 Conn. 24, 29–30 (1955);  Hubbard v. Schlump, 106 Conn. 216, 219 (1927), Any such statement may be admissible against a party, in either an individual or a representative capacity.  (See Connecticut Code of Evidence, § 8–1(1)(A)).

Such testimony, if believed, might lead the trier of fact to conclude that the Defendants should have foreseen the possibility of violence, and taken action to prevent or deter such conduct.   The test of foreseeability is whether the Defendant, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered by the Plaintiff was likely to result, if reasonable care was not exercised.  Frankovitch v. Burton, 185 Conn. 14, 20–21 (1981);  Orlo v. Connecticut Co., 128 Conn. 231, 237 (1941).

Assuming all facts most favorably to the Plaintiff, William Caporossi, it is found that the test of foreseeability has been met.

The trier of fact may also determine, that any failure to act on the part of Peter Merola as Permittee and as a representative of Pete's Bar & Lounge, was the proximate cause of both the attack, and any injuries which resulted.

Proximate cause has been defined as an actual cause that is a substantial factor in causing the resulting harm to the Plaintiff.  Barry v. Quality Steel Products, Inc., 263 Conn. 424, 446 (2002);  Boehm v. Kish, 201 Conn. 385, 391 (1986).   The existence of proximate cause is determined by looking from the injury, to the negligent act complained of, for the necessary connection.  Peterson v. Oxford, 198 Conn. 740, 749 (1983).   There can be more than one proximate cause of an injury.  Miranti v. Brookside Shopping Center, 159 Conn. 24, 29 (1969).

The question of proximate cause, should be submitted to the trier of fact, if there is room for reasonable disagreement.  Hughes v. National Car Rental Inc., 22 Conn.App. 586, 590 (1990).

The plaintiff may also prevail, based upon the facts as pled, and the information concerning police responses to the establishment prior to August 10, 2007, based upon a claim of premises liability.  Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 608–10 (1995).

All parties agree that the Plaintiff carried the status of an invitee on August 10, 2007.

In order to prevail on this claim, the Plaintiff must prove that Pete's Bar & Lounge, acting though its agents and employees, and/or Peter Merola, knew or should have known that crimes of the same nature as that which befell the Plaintiff had occurred at 250 Captain Thomas Boulevard prior to the date of this incident.   He must prove that the harm which befell him was of the same general type as that which had occurred on earlier occasions, and that he was placed within the foreseeable scope of the risk, due to the Defendants' failure to act.  Stewart v. Federated Dept. Stores, Inc., supra, 608–10.

This claim cannot be disposed of by way of summary judgment.

CONCLUSION

The motion for summary judgment, as to counts five and six, is therefore DENIED.

RADCLIFFE, J.

Radcliffe, Dale W., J.