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Whittingham v McDonald’s Corporation (2d Dep’t)

July 22, 2019 • Posted By Grant D. Zacharias • Insurance Coverage, News

           In Whittingham v. McDonald’s Corporation (2d Dep’t 2019), the plaintiff in the underlying action was waiting in line inside a McDonald’s restaurant located on Flatbush Avenue in Brooklyn, when two girls in line behind him began to fight.  Plaintiff attempted to intervene to stop the fight, but he was in turn assaulted by people who were watching the fight, allegedly causing personal injuries.  Plaintiff then filed suit against McDonald’s as well as 395 Flatbush, Inc. (“395”), the owner of the premises, alleging negligence in failing to provide adequate security at the premises.

            In the underlying action, 395 moved for summary judgment, arguing that the assault of the plaintiff could not have been reasonably anticipated and prevented.   The motion for summary judgment was denied, and 395 appealed to the Second Department.

            On appeal, the appellate court noted that the “owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults.”  Giambruno v. Crazy Donkey Bar & Grill, 65 A.D.3d 1190, 1192 (2d Dep’t 2009).  However, in the case at bar, the Second Department affirmed the trial court’s ruling, finding that 395 did not establish that the assault of the plaintiff was, in fact, unforeseeable and unexpected.  The appellate court specifically stated:

           In light of the multiple incidents, including 15 prior violent incidents, that had occurred at the subject restaurant, it cannot be said as a matter of law that the security measures taken by the defendant were sufficient to ensure the safety of the patrons on the date of the accident.

         By virtue of this decision, the Second Department provided additional clarity as to a property owner’s obligation to maintain a secure environment for its invitees and other individuals who traverse onto its premises.  Essentially, in situations in which multiple prior violent incidents have occurred at a property, counsel for the owners would be best suited to demonstrate the precise additional security measures taken to ensure the safety of the patrons.