What Legal Theories Do Lawyers Use to Prove Night Club Bouncer Assault and Unsafe Building Hazards Cases?
Gatherings at night clubs or bars are thought of as a way to have fun with a friend or group of friends. People do not expect to be hurt when visiting these types of establishments. In fact, they expect the bouncers to keep order and the building to be safe.
There are many legal theories lawyers use to prove a case like this. But first you need to understand some basics, so here we go.
Constructive knowledge is the term that indicates such knowledge. It is to become assessed in these cases what had been happening around the business in the past.
Failing to provide adequate security doesn’t just mean hiring a guard. It also means guarding against dangerous conditions on your property.
- Consuming alcohol diminishes your inhibitions, and this can lead to problems like tripping at a bar.
- Slipping and falling on liquid, a chair or table in a high traffic area of an eatery is a typical scenario we also see.
- But crimes and bouncer assaults are also a risk of harm to customers.
Type of harm suffered in negligence security cases includes:
- Head trauma
- Broken bones or sprains.
These types of incidents happen due to a defect or failure by the property owner or management. So they fail to maintain the building securely and properly.
The other types of harm that can occur may include criminal conduct in the form of:
- Rape, and in rare cases, death.
What is The Main Function of Security Guards?
Most bouncer attack lawyers will tell you that patrons of a nightclub or bar are normally not concerned with criminal dangers. After all, these establishments usually have security guards right? Yes, they are referred to as bouncers.
And their job is to protect you and the club, or bar, etc. If there is a scuffle, they must peacefully try to diffuse the situation.
- Bouncers are usually large men with presence enough to keep patrons from misbehaving. (Read more here.)
So the bouncer is usually the employee who will have contact and cooperate with the police. These are situations where the police are involved in subduing crime or responding to a potential crime. But the bouncer is not usually a sworn peace officer.
He is expected to observe, report and refrain from using emotions. And this is no easy task when dealing with patrons who may behave badly.
Sometimes customers are out of line and want to test their mixed martial arts skills on the bouncer or another visitor. In other cases the security guard can step over the line of their intended functions.
So now, rather than controlling dangerous situations, the bouncer makes it worse. If so, liability attaches.
What Are Some Examples of Bouncer Assaults?
There have been reported incidences and arrests of violent bouncers. Most happened in situations where bouncers assaulted patrons of nightclubs or bars.
- One occurred in Worcester Massachusetts where a security guard was arrested for armed robbery, kidnapping, along with assault and battery.
In that case, a video went viral on the internet. Sadly, the security guard/ bouncer was seen punching the patron and then robbing him in the bathroom of a strip club. The bouncer later said he believed the man was dealing drugs in the club.
- An incident occurred in Muhlenberg Township, Pennsylvania in a night club saw a bouncer kick a person out of the club. This resulted in the patron hitting his head on the sidewalk.
The man required emergency surgery. The bouncer was arrested and charged with assault and endangerment.
- In Lawton Kansas, a veteran was attacked by a bouncer in a night club, with the soldier being beaten to the point that his face was fractured.
He required facial reconstructive surgery after being injured by an improvised explosive device prior to that beating. Police suspected this bouncer of two similar assaults that occurred at the same club!
- In Henderson Kentucky, a patron ended up dead after complaining about his drink.
- Police observed a photo that was taken the same night as the altercation, where one of the security team can be seen holding a baton. (Read More Here.)
Police believed it was the same baton witnesses claim saw striking the man who had complained about his drink. The bouncer was arrested, charged with murder and released on $50,000 bail.
- Bouncers harming a patron can be criminally charged. And the patron who was hurt may be able to bring a lawsuit against the bouncer and the night club or bar.
- The bar or night club owner can be held liable for negligent infliction of emotional distress, negligent entrustment (examples include a road rage employee given a company vehicle), negligent hiring, negligent retention, and even dram shop. (depending on your jurisdiction.)
- In the event of death, all defendants can face a wrongful death lawsuit.
What is Security Negligence?
When businesses fail to provide the needed security to their customers its said that they showed negligence towards security measures. A business that has the public coming within its premises has to provide security to its customers.
In other words, if it is within the knowledge of the business that crimes, or even a trip and fall can occur it becomes a responsibility for business to protect its patrons.
If a crime causes harm the patron or his personal property, the business will become held liable. What about when a gang banger shoots up a club or a disco? Well, if the owner knows it’s a possibility, it is a foreseeable crime.
In other words, was there a history, or knowledge that gang-bangers have caused trouble in the area? If so, liability attaches.
From foreseeability we mean that it was in the knowledge of the business (the runners of the business) that a crime can take place.
Negligent security can occur when bouncers or owners and employees do not perform the functions they were hired for properly. So the result is a patron being harmed.
Below are some of the most common claims against establishments.
- The security guard or bouncer failed to take action.
- The patron was not protected from being harmed.
- Knowledge of violence by the owner of crimes, or violent behavior of the bouncer can also be used when a bouncer attacks a patron.
What is Owner Premises Liability?
When a guest of a nightclub or bar is hurt, under the legal theory of premises liability. Premises liability in the state of California outlines that the owner of a property has a duty to provide reasonable safe conditions. And this duty includes preventing any foreseeable harm to any visitor to the business.
Negligent actions by the employees of a bar or nightclub owner in the performance of their duties can make them liable to you. But you must suffer harm. That is what gives rise to your money damages award.
- For example, liability could exist because security had been alerted to a slippery spill, but it was not cleaned up quickly.
- So now another patron has a slip and fall incident with serious injuries.
- In that case, the owner could be held liable for negligent premises liability.
What is the Stance of Defense Counsel?
Attorneys for the defense will almost always argue they had no knowledge of any potential problem. They will come up with a litany of excuses to avoid paying for the injuries.
So victims at the bar, nightclub, or regular old corporate offices have to prove the case. We just discussed that courts will look for whether or not a duty is owed. The defense will argue that even if the duty was breached, it was not foreseeable.
So no liability lies even if someone was hurt from a crime. Plus, the mere fact a crime took place while you were hanging out matters not since it was not a PSI.
If those basic things are not present, the jury instructions will provide the framework to the trier of fact to find zero or partial liability.
“Series 1000 – Premises Liability
- 1000. Premises Liability—Essential Factual Elements
- 1001. Basic Duty of Care
- 1002. Extent of Control Over Premises Area
- 1003. Unsafe Conditions
- 1004. Obviously Unsafe Conditions
- 1005. Business Proprietor’s Liability for the Negligent/Intentional/Criminal Conduct of Others
- 1006. Landlord’s Duty
- 1007. Sidewalk Abutting Property
- 1008. Liability for Adjacent Altered Sidewalk—Essential Factual Elements
- 1009A. Liability to Employees of Independent Contractors for Unsafe Concealed Conditions
- 1009B. Liability to Employees of Independent Contractors for Unsafe Conditions—Retained Control
- 1009C. Reserved for Future Use
- 1009D. Liability to Employees of Independent Contractors for Unsafe Conditions—Defective Equipment
- 1010. Affirmative Defense—Recreation Immunity (Civ. Code, § 846)
- 1011. Constructive Notice Regarding Dangerous Conditions on Property
- 1012. Knowledge of Employee Imputed to Owner
- 1013–1099. Reserved for Future Use
- VF-1000. Premises Liability—Comparative Negligence of Others Not at Issue
- VF-1001. Premises Liability—Affirmative Defense—Recreation Immunity
- VF-1002. Premises Liability—Comparative Fault of Plaintiff at Issue
- VF-1003–VF-1099. Reserved for Future Use”
What’s The Foreseeability Of Crime Test?
Whether the victim will win in a case where a third party committed a crime against you majorly depends on proving foreseeability of the crime. Most of this test comes from case law. And as will be discussed, some courts have different thresholds and variations of this test in California.
But non the less, this is the threshold you must meet. If not, the court could dismiss your case with, or without prejudice to you re-filing the case.
So naturally, a true personal injury warrior will note that this is a very important element. This must become nailed down before you consider moving forward with your lawsuit. From foreseeability we mean that it was in the knowledge of the business (the runners of the business) that a crime can take place at or near the place.
What About the Businesses’ Knowledge of Prior Crimes or Accidents to Show Foreseeability?
In some cases, it’s implied that the business should have been aware of the fact that a crime or other dangers could happen on the premises.
Examples of non criminal events giving rise to landlord liability could be where could be:
- Falling objects. For example, a ceiling fixture breaking loose from its anchors and falling on your head.
- Trash in a parking area. This type of rubbish can hide or block liquid and grease, causing a slip, trip and fall case.
But how do you show the owner knew or should have known about the criminal or civil dangers to guests. Well, one way is to show they knew the ceiling was collapsing, or the trash in the garage was a fall hazard. However, most of the time it is not that easy. Most of the time we lawyers use the concept of constructive or implied knowledge.
- Constructive knowledge is the term that indicates such knowledge. It is to become assessed in these cases what had been happening around the business in the past.
Any crime that took place in the past that gave an indication that a crime might take place is enough reason for a business to take security measures.
How recently a crime had taken place in the vicinity of the business where the victim has suffered harm. This is also of importance in deciding the foreseeability of the crime.
The same test is used to prove prior knowledge a litany of other accidents like:
- Falling objects
- Drowning in a public or private pool
- Slipping, tripping and falling on public or private sidewalks
- Various burn injuries in your workplace
- Negligent Maintenance of roadway crashes, etc.
Yes this is key in most cases. So liability could lie if the incident that harmed you was similar to ones that had taken place in the past. But they must be in the proximity of the business or premises. It could be said the owner should have foreseen similar scenarios in future.
Discussed below is another important factor when proving the foreseeability of a crime or even a slippery floor case. It’s called Prior Similar Incidents.
- What are Prior Similar Incidents or PSI?
The similarity between the incidents that took place in the past and the one that injured the plaintiff is important. PSI or prior similar incidents can show that this would have been avoided if not but for owner negligence.
Similarity Of Cases And Foreseeability
There is quite a debate and controversy in many court cases over PSI. Different state judges are of different opinions.
- Some judges believe that only natural and similar crimes could allow a business to foresee an upcoming danger. Under this jurisdictional split, business are liable if there was a very similar type of crime, for example. Even if it’s a high crime area, a rape of a female patron next door would not give rise to knowledge criminals would assault a male customer at your business, for example.
So if for example, a past a robbery had taken place in the nearby store, that would not instantly prove security negligence unless there was a similar robbery at your location.
But if it’s not similar enough, you can lose. So in order to prove the foreseeability of the crime it had to be similar in nature. Get it so far?
But this PSI theory is not accepted by all courts.
- Some courts in California contradict this theory of PSI. These judges say even if the crime is dissimilar, the fact there was high crime at all was enough notice to necessitate security. So some courts have given decisions in the favor victims even when the incidents were not similar.
What is The Stance Of The Plaintiff In Security Negligence Case?
From above information we can easily conclude that any victim who wants to prove that business’ security negligent must come up with ample evidence to show past crime, or PSI. You must show the business knew or should have known about the possibility of the crime at the minimum.
The plaintiff will have to collect information about past cases. It is always best that the plaintiff collect information about similar cases. But bear in mind some courts think any crimes in the vicinity of the business should have encouraged security measures.
Security Negligence Cases In Los Angeles.
Los Angeles is one of the most populous regions in the U.S. Crimes are taking place in this area every minute. So if you have been part of an incident and suffered harm or your property got damaged in a business’ premises, you should contact an experienced law firm as soon as possible.
http://legal-dictionary.thefreedictionary.com/Foreseeability The Free Dictionary Foreseeability legal definition of Foreseeability
http://www.nolo.com/dictionary/foreseeability-term.html Foreseeability | Nolo’s Free Dictionary of Law Terms and Legal Definitions
How Do Dram Shop Laws Apply?
Dram shop laws are on the books in 42 states and the District of Columbia. These laws hold the owner of the establishment and servers responsible in some cases. Examples include a drunken patron injuring another person inside or even outside of their establishment.
So in the case of a bar or nightclub, the owners and servers may be held liable. This remains true if they permit a patron to become visibly intoxicated at the establishment. But California uses the foreseeability test, not Dramshop laws.
What are the Wrongful Death Dangers?
When there is an incident at a nightclub or bar that kills a patron, it could be from negligence. If it was, wrongful death claims in California are brought by the spouse, children, grandchildren, domestic partner, other dependents. They can also be claims brought by personal representatives of the decedent.
So now the heirs can be awarded damages in a wrongful death lawsuit based on two things.
- The pecuniary loss involves financial support for the victim. This is what the dead person would have provided had they lived. And this will include funeral and burial expenses.
- Non-pecuniary damages are the loss of moral support, comfort, companionship, assistance in maintenance. And it can include other damages caused by the death.
What About Punitive Damages?
- The one damage that heirs will not recover in a wrongful death lawsuit is punitive damages.
What About a Survivor’s Action?
- If the person who died was hospitalized and had medical expenses, the decedent’s estate may bring a survivor’s lawsuit. This is done on behalf of the deceased victim’s estate.
How Do You Protect the Rights of Patrons?
Above we discussed the various types of cases, statistics and legal theories lawyers use to prove a negligent security case. Now that you understand more about your rights you need to make a decision.
- Should you consult with a lawyer?
- We think so.
- An incident resulting in harm can have life changing consequences.
Call ELFPI now to learn more at (213) 596-9642.