Hendrix v Jinx-Proof LLC

[*1] Hendrix v Jinx-Proof LLC 2010 NY Slip Op 50853(U) [27 Misc 3d 1223(A)] Decided on April 30, 2010 Supreme Court, New York County Scarpulla, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 30, 2010
Supreme Court, New York County

Vera Hendrix, Plaintiff,

against

Jinx-Proof LLC, PAUL DEVITT, DEBORAH PARKER, each Individually and doing business as BEAUTY BAR and GARRETT ALARCON, Defendants.



117015/07



For Plaintiffs:

Zalman & Schnurman

61 Broadway, Suite 1105

New York, NY 10006

For Defendants:

Abrams, Gorelick, Friedman & Jacobson, P.C.

One Battery Park Plaza

New York, NY 10004

Saliann Scarpulla, J.

In this action to recover damages for injuries sustained by plaintiff Vera Hendrix ("Hendrix), defendants Jinx-Proof, LLC d/b/a Beauty Bar ("Beauty Bar"), Paul Devitt ("Devitt"), Deborah Parker ("Parker") and Garrett Alarcon ("Alarcon") move for partial summary judgment pursuant to CPLR 3212 dismissing Hendrix's negligent hiring and Dram Shop Act claims against them, and dismissing the complaint in its entirety against Devitt and Parker. At oral argument on this motion, the court granted summary judgment dismissing Hendrix's complaint against Devitt and Parker individually, on the ground that they are shareholders of the corporate owner of Beauty Bar, Jinx-Proof, LLC, and there is no basis to impute the potential liability of Beauty Bar for Hendrix's injuries on them individually. The Court also dismissed the Dram Shop Act claim against defendant Garrett Alarcon ("Alarcon"), as Hendrix failed to show that Alarcon served alcohol to anyone on the night of the incident which forms the basis of this action.

This action arises out of an altercation between Hendrix and Alarcon at Beauty Bar on the night of August 25, 2007. Hendrix alleges that at approximately 4:00 a.m. that night, Alarcon, a door security guard at Beauty Bar, threw a glass at her face.

On the night of the incident, Hendrix was at Beauty Bar with her friends, Patrick [*2]Donahue ("Donahue"), Travis Lamprecht ("Lamprecht) and Dmitry Gialopsos ("Gialopsos"). Hendrix had met her friends earlier that evening at another Manhattan bar. Hendrix testified at her deposition that when she met them, Donahue and Lamprecht were both slurring their speech. Hendrix also testified that she saw Donahue walking crookedly.

The four arrived at Beauty Bar at approximately 3:00 a.m. In the hour before Beauty Bar's closing, Hendrix saw Donahue and Lamprecht each drink at least two beers. She also testified that Donahue was slurring his words and "babbling" throughout the time they were at Beauty Bar.

At approximately 3:50 a.m., Alarcon announced that Beauty Bar was closing. Though Alarcon twice asked them to leave, Hendrix and her friends refused to do so and instead continued drinking. After Alarcon insisted, Donahue and Alarcon got into a physical altercation, which ended when another security guard physically removed Donahue from the bar. Hendrix testified that as she was exiting the bar after the altercation, she initiated a confrontation with Alarcon and then threw the contents of her drink on Alarcon. This resulted in an altercation between Lamprecht and Alarcon. After a second security guard physically intervened in that altercation, Hendrix claims that Alarcon threw a glass at her face, lacerating her cheek.

In her complaint, Hendrix pleads claims against all defendants for negligence, gross negligence, violation of the Dram Shop Act, and Beauty Bar's negligent hiring and supervision of Alarcon. In their answer defendants denied all of the material allegations of the complaint.

Garrett Alarcon's Employment at Beauty Bar

At his deposition, Alarcon testified that he was arrested at the age of 15 for shoplifting. Since then he has been charged several times for possession of marijuana, and was on probation for eights years after pleading guilty to distribution of cocaine. Alarcon also testified that he was arrested for fighting with his girlfriend in 2007, though he stated that he was not prosecuted or convicted in connection with that incident. Alarcon testified that while he does smoke marijuana, he does not drink alcohol regularly and only had one drink the night of the incident.

Prior to hiring Alarcon, Beauty Bar did not perform a criminal background check on Alarcon or asked him directly about his criminal record. However, he was interviewed for the job, and was told that his job duties consisted of checking identification of patrons before they entered the bar. Michael Stewart ("Stewart"), a principal of Beauty Bar, testified at his deposition that he was unaware that Alarcon had a history of marijuana offenses when he hired him in 2003. Stewart also stated that while he had smelled marijuana on Alarcon while they interacted socially, he had never smelled marijuana on Alarcon when Alarcon was at work.

Devitt and Parker, two other principals of Beauty Bar, submitted affidavits on this summary judgment motion attesting that they had no knowledge of any propensity on Alarcon's part to act violently, and had never seen him do so. It is undisputed that, in the four years that Alarcon had worked at Beauty Bar prior to Hendrix throwing her drink on Alarcon, [*3]he had never had a physical confrontation with any patron at Beauty Bar. It is also undisputed that, prior to the incident with Hendrix, Beauty Bar never received a complaint, by either a patron or another employee, concerning Alarcon's conduct.

On its partial summary judgment motion, Beauty Bar argues that it is not liable for negligently hiring or supervising Alarcon because it had no duty to check Alarcon's criminal record and had no notice that Alarcon had a propensity for violence. Further, Beauty Bar asserts that it is entitled to summary judgment on the Dram Shop Act claim because Hendrix fails to present sufficient evidence that Donahue or Lamprecht were visibly intoxicated when they purchased liquor at Beauty Bar, or that their intoxication caused Hendrix's injuries.

In opposition, Hendrix argues that Beauty Bar is liable for negligent hiring and supervision because it failed to inquire about Alarcon's background or conduct proper training. Hendrix also argues that an issue of fact remains as to whether Donahue and Lamprecht were visibly intoxicated when they purchased liquor at Beauty Bar, and whether the intoxication of her friends resulted in Hendrix's injuries.

Discussion

The Negligent Hiring and Supervision Claim

To prevail on a negligent hiring and supervision claim, a plaintiff must show that an employer knew or should have known of the employee's propensity for the particular behavior that caused the plaintiff's injuries. Taylor v. United Parcel Service, 2010 NY Slip Op. 03371 (1st Dep't April 27, 2010); Coffey v. City of New York, 49 AD3d 449, 450 (1st Dep't 2008). Employers do not have a common law duty "to inquire as to whether an employee has been convicted of crimes in the past." Yeboah v. Snapple, Inc., 286 AD2d 204, 205(1st Dep't 2001); Day v. J. Vlachos Hellenic Service Station, Inc., 2 AD3d 482 (2d Dep't 2003) (same). Also, if an employee acted within the scope of employment when causing plaintiff's injury, plaintiff cannot recover under a negligent hiring claim because the employer would be vicariously liable for the actions of its employee. Karoon v. New York City Transit Auth., 241 AD2d 323 (1st Dep't 1997).

Here, Beauty Bar has presented uncontradicted affidavits and deposition testimony from its principals stating that they had no knowledge of Alarcon's propensity to act violently. Further, as Beauty Bar had no duty to inquire into Alarcon's criminal history, liability cannot attach simply because Beauty Bar did not conduct a background check on Alarcon. Yeboah, 286 AD2d at 205; Day v. J. Vlachos Hellenic Service Station, Inc., 2 AD3d at 483; see also Morgan v. Nassau County, No. 03-CV-5109 2009 U.S. Dist. LEXIS 79180, at *58 (E.D.NY 2009) (holding that under New York law, a movie theater did not have a duty to check the criminal history of its security guard).

Though Stewart testified that he had smelled marijuana on Alarcon when they met socially, knowledge of marijuana use does not indicate a tendency to act violently. See Taylor v. United Parcel Service, Inc., 2010 Slip Op. 03371 (defendant's awareness of its employee's poor behavior - "rudeness and inappropriate flirtation" - was insufficient to put employer on notice that employee had a propensity to commit sexual assault); Osvaldo D. v. Rector Church Wardens and Vestrymen of the Parish of Trinity Church of New York et al., [*4]38 AD3d 480, 480 (1st Dep't 2007) ("The fact that the employee may have used drugs in the past is irrelevant to any propensity to commit an act of sexual aggression."). Also, the affidavits from Devitt and Parker confirm that Alarcon did not have a history of violent behavior at Beauty Bar. See Morgan, 2009 U.S. Dist. LEXIS at 59.

On this motion Beauty Bar has made a prima facie showing that it did not know and did not have notice of Alarcon's alleged violent tendency. Hendrix has failed to raise an issue of fact on this issue, thus Beauty Bar is entitled to summary judgment dismissing Hendrix's negligent hiring and supervision claim against it.[FN1]

The Dram Shop Act Claim

Under New York General Obligations Law §11-101, the Dram Shop Act [FN2], a bar owner that sells alcohol to visibly intoxicated patrons is liable for injuries caused "by reason of" those patrons' intoxication. Catania v. 124 In-To-Go, Corp., 287 AD2d 476, 478 (2d Dep't 2001). To establish that the patron's intoxication caused the plaintiff's injuries, "there must be some reasonable or practical connection between the sale of alcohol and the resulting injuries." Catania, 287 AD2d at 478 (internal quotation marks omitted).

Beauty Bar has presented uncontroverted evidence that Alarcon was not intoxicated the evening of the incident. Therefore, Beauty Bar and Alarcon are entitled to summary judgment dismissing any Dram Shop Act claim related to Alarcon's alleged intoxication.

Further, Beauty Bar has shown that Hendrix was not injured as a result of her friends' alleged intoxication. At her deposition, Hendrix testified that her altercation with Alarcon began when they exchanged words and Hendrix threw her drink at Alarcon. Hendrix further testified that the altercation between Alarcon and her friends, who had refused to leave Beauty Bar, ended before Alarcon allegedly injured her. Thus, the altercation between Hendrix and Alarcon was not part of an ongoing "chain reaction" that resulted in Hendrix's injuries, cf. Dollar v. O'Hearn, 248 AD2d 886, 886 (3d Dep't 1998) (denying a restaurant owner's summary judgment motion where plaintiff alleged several intoxicated women fell, causing a "chain reaction" which resulted in others patrons falling on plaintiff and causing her injuries), and Hendrix has presented no other evidence to show that Beauty Bar's service [*5]of alcohol to her friends resulted in Hendrix being injured.

The Court does not need to, and does not, address the issue of whether Beauty Bar served Hendrix's friends while they were intoxicated, because Beauty Bar has shown that their alleged intoxication did not result in Hendrix's injuries. Beauty Bar is therefore entitled to summary judgment dismissing the Dram Shop Act claim against it.

In accordance with the foregoing and for the reasons set forth on the record on the oral argument of this motion, it is

ORDERED that defendants' motion for partial summary judgment dismissing the complaint in its entirety against defendants Paul Devitt and Deborah Parker, and dismissing the negligent hiring and supervision and Dram Shop Act claims against the remaining defendants is granted, and the Clerk of the Court is directed to enter judgment accordingly. The remaining claims are severed and shall be tried.

This constitutes the decision and order of the Court.

Dated:New York, New York

April 30, 2010

E N T E R:

_____________________________

Saliann Scarpulla, J.S.C. Footnotes

Footnote 1: Hendrix also argues that Beauty Bar was negligent in failing to train Alarcon, but she fails to show how or why Alarcon's training was inadequate, or even to explain what special training a person who checks identification at the door of a bar needs to perform that job.

Footnote 2: The Dram Shop Act states: "Any person who shall be injured in person, property, means of support, or otherwise by any intoxicated person, or by reason of the intoxication of any person, whether resulting in his death or not, shall have a right of action against any person who shall, by unlawful selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication; and in any such action such person shall have a right to recover actual and exemplary damages." New York General Obligations Law §11-101.