Cortney Dolan v. Robert Nolan et al. (2011)

MEMORANDUM OF DECISION

This case arises out of the plaintiff's visit, on July 21, 2007, to a nightclub known as Club NV, located in Hartford, Connecticut.   The defendants are Robert Nolan, the permittee of Club NV, and BJA Company, Inc., the owner of Club NV. According to the evidence, the plaintiff was on the premises on that date from approximately 11:30 p.m. to approximately 1:45 a.m. on July 22, 2007.   She was in the company of three friends.   When “last call” was announced at approximately 1:30 a.m., the plaintiff went to the ladies room, which was located downstairs.   While she was waiting at the head of the line to use the stalls in the ladies room, she was assaulted, without provocation, by two women who entered the ladies room.   During the assault, the plaintiff was beaten about the head and kicked in the head with the stiletto shoes worn by the assailants.   The plaintiff suffered injuries to her throat, face, eyes and mouth.   The identities of the assailants were never determined, and they were never apprehended.

After the assault, the plaintiff was assisted by two employees of the defendant, colloquially known as bouncers.   One of the bouncers carried her from the ladies room, up the stairs, out of the club and then put her on a ledge adjoining the sidewalk in front of the club.   The bouncers notified nearby police officers of the plaintiff's location and then left.   The police officers were aware of the plaintiff and also knew that an ambulance had been summoned to take her to the hospital.   The police officers did not enter the club and made no effort to determine the identities of the assailants.

The plaintiff alleges that the defendants were negligent in that they failed to protect her from the assault, failed to supervise the conduct of their patrons, failed to give reasonable warnings to the plaintiff, failed to respond in the appropriate and timely manner once the assault began, and failed to provide adequate security.   The plaintiff also alleges that the defendants failed to render and secure emergency medical attention for her.   The defendants denied the plaintiff's allegations of negligence.

In order to find the defendants liable, this court must determine if the defendants were negligent and if any such negligence proximately caused the plaintiff's injuries.  “The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury ․ Contained within the first element, duty, there are two distinct considerations ․ First, it is necessary to determine the existence of a duty, and [second], if one is found, it is necessary to evaluate the scope of that duty.”  (Internal quotation marks omitted.)  Baptiste v. Better Val–U Supermarket, Inc., 262 Conn. 135, 138, 811 A.2d 687 (2002).   Regarding the first consideration, it is clear that where “the plaintiff is a business invitee of the defendant ․ the defendant [owes] the plaintiff a duty to keep its premises in a reasonably safe condition.”  Id., 140.   Regarding the scope of that duty, “[t]ypically, [for the plaintiff to recover for the breach of a duty owed to [him] as [a business] invitee, it [is] incumbent on [him] to allege and prove that the defendant had actual notice of the presence of the specific unsafe condition which caused [his injury] or constructive notice ․ [T]he notice, whether actual or constructive, must be notice of the very [condition] which caused the injury and not merely of conditions naturally productive of that defect even though subsequently in fact producing it ․ In the absence of allegations and proof of any facts that would give rise to an enhanced duty ․ the defendant is held to the duty of protecting its business invitees from known, foreseeable dangers.”  (Citations omitted;  internal quotation marks omitted.)  Id.

Regarding the element of proximate cause, the case of Monk v. Temple Garage Associates, LLC, 273 Conn. 108, 869 A.2d 179 (2005), is informative.   In that case, the plaintiff business invitee alleged that the owner of a parking lot was negligent in failing to provide adequate security on the premises.   The plaintiff was intentionally attacked on the defendant's premises by an assailant.   The trial court had granted summary judgment in favor of the defendant.   In its decision reversing the summary judgment, the court stated:  “ ‘[P]roximate cause [is] defined as an actual cause that is a substantial factor in the resulting harm ․ [T]he inquiry fundamental to all proximate cause questions ․ [is] whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's negligence.   Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 321, 852 A.2d 703 (2004).   Additionally, we note that ‘a negligent defendant, whose conduct creates or increases the risk of a particular harm and is a substantial factor in causing that harm, is not relieved from liability by the intervention of another person, except where the harm is intentionally caused by the third person and is not within the scope of the risk created by the defendant's conduct.’  ․ Craig v. Driscoll, 262 Conn. 312, 332, 813 A.2d 1003 (2003), citing 2 Restatement (Second), Torts § 442B (1965).   Therefore, the liability of the defendants depends on the foreseeability of the plaintiff's attack as well as the extent to which the defendants' alleged negligence was a substantial factor in causing the plaintiff's injuries.”  Monk v. Temple Garage Associates, LLC, supra, 273 Conn. 124–25.

According to the evidence in the present case, the night of the attack was the first time that the plaintiff visited Club NV. The plaintiff testified that during the time she was at the club, before the assault, she did not observe any combative or dangerous behavior by any of the patrons of club, and she had no concerns about her safety.   One of the people with the plaintiff at the club was her then boyfriend, now husband, Chris Szumilas.   He had visited the club on previous occasions, and he testified that he had never observed any problems, and he was not aware of any unfavorable history connected with the club.   He also testified that on the evening in question, he did not observe any problems, and he had no reason to dissuade the plaintiff from going to the ladies room.

The plaintiff testified that she did not observe a bouncer in the vicinity of the staircase or in the vicinity of the downstairs ladies room.   She also testified that while she was in the ladies room, prior to the assault, she did observe any unusual or threatening conduct by anyone in the vicinity.   Alfeia Degrandi's testimony established the following facts.   He is the lead bouncer at Club NV and was present on the night of the incident.   On a Saturday night, eight to eleven bouncers usually work at the club, and they are positioned in various locations, which they rotate throughout the night.   A bouncer is assigned to the area in the vicinity of the stairs and the downstairs men's and ladies' rooms.   From that location, it would be difficult to hear what was happening in the rest rooms because of the loud music from upstairs.   Degrandi testified that Club NV has a zero tolerance policy for fights or other dangerous behavior.

Applying the law to the facts of this case, the court concludes that the plaintiff has not proven by a preponderance of the evidence that the defendant had actual or constructive notice of a condition on the premises that caused the plaintiff's injuries or that any negligent conduct on behalf of the defendants proximately caused her injuries.   There was not sufficient evidence presented to establish that it was reasonable and foreseeable for the defendants to know that the plaintiff was at risk of being attacked in the ladies room.   The plaintiff failed to establish from the witnesses that there was history of prior problems at the club that would have put the defendants on notice of a potential assault in the ladies room.

The court notes that unlike in the Monk case, there was no expert opinion testimony presented regarding security requirements for an establishment such as Club NV. The court has also considered the suddenness of the attack and the lack of evidence pertaining to the behavior of the assailants prior to their assault on the plaintiff.

The plaintiff alleged that the defendants failed to render, and or secure, medical attention for her injuries.   The evidence shows that the defendants' agents promptly brought her out of the club and notified nearby police officers of her location.   Thereafter, she was taken by ambulance to the hospital.   The plaintiff did not present expert medical testimony that the actions of the defendants resulted in any injury.

The plaintiff also alleged that the defendants negligently inflicted emotional distress upon her.   The thrust of the allegations is that the bouncer(s) who attended the plaintiff in the ladies room, carried her out of the club and placed her on the sidewalk, belittled and demoralized the plaintiff by cursing, yelling at her, and calling her inappropriate names.   To prevail on a claim for negligent infliction of emotional distress, the plaintiff must prove that “(1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress;  (2) the plaintiff's distress was foreseeable;  (3) the emotional distress was severe enough that it might result in illness or bodily harm;  and (4) the defendant's conduct was the cause of the plaintiff's distress.”  Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003).

The bouncer(s) who attended the plaintiff did not testify at the trial.   The only person who testified as to these allegations was the plaintiff.   The plaintiff had consumed alcohol prior to the assault, and she was obviously in a very emotional state immediately after the assault.   The plaintiff did not submit any expert testimony regarding her emotional distress claims as they relate to the defendants.   The plaintiff has not met her burden of proof regarding the allegations of negligent infliction of emotional distress.

Although the court finds the issues for the defendants in this case, the physical and emotional impact this event has had on the plaintiff is appreciated and understood by the court.

Judgment may enter for the defendants on all counts of the complaint.

Domnarski, J.

Domnarski, Edward S., J.