WOOLARD v. NEW MOHEGAN DINER (1999)

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Westchester County (Silverman, J.), entered January 13, 1998, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The plaintiff was allegedly injured in an altercation with three men outside of the defendant restaurant.   The record, including the plaintiff's deposition testimony, establishes that the three men, who had allegedly behaved in an inappropriate manner at the restaurant on prior occasions, were misbehaving in the restaurant at approximately 1:00 A.M. on July 9, 1992.   At some point, one of the men allegedly spat on the plaintiff's sister, a waitress at the restaurant.   After the men left the restaurant, the plaintiff's sister reported the incident to the plaintiff, who was eating with a friend at the restaurant.   The plaintiff pursued the men into the parking lot and confronted them.   The men then punched and kicked the plaintiff.

 Although as a general rule a landowner must exercise reasonable care to protect patrons on its property (see, Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 429 N.Y.S.2d 606, 407 N.E.2d 451), the owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults (Rivera v. 21st Century Rest., 199 A.D.2d 14, 604 N.Y.S.2d 106;  Lindskog v. Southland Rest., 160 A.D.2d 842, 843, 554 N.Y.S.2d 276).   Here, where the plaintiff followed the three men into the parking lot and challenged them about the affront to his sister, the defendants could not be said to be on notice of an escalating altercation between the plaintiff and his assailants, nor to be in a position to anticipate or prevent the harm to the plaintiff (see, e.g., Languilli v. Argonaut Rest. & Diner, 232 A.D.2d 375, 648 N.Y.S.2d 139;  Davis v. City of New York, 183 A.D.2d 683, 584 N.Y.S.2d 64;  Garofalo v. Henrietta Italia, Inc., 175 A.D.2d 580, 572 N.Y.S.2d 246;  Silver v. Sheraton-Smithtown Inn, 121 A.D.2d 711, 504 N.Y.S.2d 56).

Accordingly, as the defendants breached no duty to the plaintiff, the complaint is dismissed.

MEMORANDUM BY THE COURT