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ARTICLE ID 32661

$________ - NEGLIGENT SECURITY - FAILURE OF TAVERN/RESTAURANT TO MAKE TIMELY CALL FOR POLICE WHEN PLAINTIFF PATRON WAS MENACED BY UNIDENTIFIED ASSAILANTS - PLAINTIFF STRUCK IN FACE WITH MUG - RUPTURE OF ORBITAL GLOBE - SURGICAL ENUCLEATION OF ONE EYE.

Union County

This was a negligent security case in which the plaintiff contended that the defendant restaurant negligently failed to timely call ________ when a group of boisterous individuals began menacing patrons at the defendant’s establishment. The plaintiff, who was picking up a take-out order, contended that as a result, he suffered a rupture of the orbital globe in one eye when one of the unidentified individuals struck him in the face with a beer mug, shattering the mug. The plaintiff contended that a surgical attempt to save the vision in the eye was unsuccessful and that he ultimately required the surgical enucleation of the eye approximately three weeks after the incident occurred.

The plaintiff contended that shortly before he arrived, a group of three to four individuals entered the defendant’s restaurant behaving very boisterous. The plaintiff maintained that based upon the defendant owner’s deposition, a prior patron entered before the plaintiff, that the boisterous individuals verbally harassed this patron and that one of the group struck him with his elbow. The plaintiff maintained that when he entered a short time thereafter, the group began verbally abusing him and that such abuse continued for 2 to 2 1/2 minutes. The plaintiff maintained that several members of this group then began walking towards him in a menacing manner and that over the course of the next 1 to 1 1/2 minutes, threatened him with physical violence.

The plaintiff contended that as he moved back towards the door, an additional member of this group, who had been waiting outside on crutches, entered the restaurant and struck him on the head with the crutch from behind. The plaintiff contended that he fell to the floor and that four to five people jumped on him and began beating and kicking him. The plaintiff, who was a very strong man, contended that he was initially able to prevent the attackers from inflicting significant injuries and that when he heard one of the group say "Let’s book," reflecting they were going to flee, he rose up and was suddenly struck in the face with the mug as the group ran from the premises.

The plaintiff contended that the defendant should have immediately telephoned the police when the group harassed the other patron before the plaintiff’s arrival. The plaintiff’s security expert related that the defendant has a liquor license and is subject to ABC regulations requiring that an owner cannot permit loud and disorderly conduct. The expert maintained that the defendant should have given the assailants a verbal warning when they first entered and acted in an unruly manner. The expert contended that since the prior unidentified patron was struck with an elbow, the defendant should have called the police, preventing the incident with the plaintiff from occurring. The plaintiff further maintained that an opportunity to prevent the incident was also lost when the defendant failed to call the police after the plaintiff was verbally and physically threatened. The plaintiff testified that he arrived at 10:45- 10:50 P.M. and that the ________ records reflected that the call was received at 11:06. The plaintiff contended that the police would have responded rapidly and argued that the failure to timely call the police culminated in the plaintiff’s injuries.

The defendant denied that the plaintiff’s version of the incident was accurate. The defendant contended that the prior incident in which the patron was struck with an elbow did not appear to be serious, that this patron had no further trouble and that it did not reasonably appear necessary to call the police at this time.

The defendant also contended that the attack on the plaintiff occurred very quickly and that three minutes or less elapsed from the time the plaintiff entered until the fight was over, denying that it could have obtained police assistance before the plaintiff was struck with the mug. The defendant presented a witness who indicated he was present and who supported the defendant’s contentions as to the time frame. The plaintiff countered that there was no mention of the witness’s presence in the police report and that witness was not identified as being present until 13 months after the incident. The plaintiff maintained that the purported witness had known the defendant for some time and argued that his testimony should be rejected.

The defendant also contended that the call to the police was made during the course of the fight and not after, as claimed by the plaintiff. The plaintiff countered that the ________ tape reflected that the defendant’s son-in-law was informing the police that a customer had been assaulted and that the assailants were driving down Elizabeth Ave. towards Rts. 1 & 9. The plaintiff argued that it was evident that the owner’s claims that he called during the fight should be rejected.

The incident occurred during the winter. The plaintiff presented the sergeant in charge of the ________ calls who discussed their procedures. The sergeant indicated that the ________ district in which this business is situated is very small geographically and because of this factor and relatively few calls that night, officers would have been able to respond very quickly. The plaintiff also presented an officer who was in her patrol car at the time, whose log book reflected that she was very close to the establishment and who indicated that she could have responded within "30 seconds." The plaintiff contended that it was clear, therefore, that appropriate action by the defendant would have undoubtedly prevented the eye injury from occurring.

The plaintiff maintained that he suffered a ruptured globe in the eye. The plaintiff maintained that initial attempts to save the vision were unsuccessful and that he required the surgical enucleation approximately three weeks later. The plaintiff related that the injury was extremely painful and testified that caring for the prosthetic eye is difficult. The plaintiff, who indicated that he must use a suction device to remove the prosthetic on a daily basis and must cleanse his eye before replacing the prosthesis, contended that the process is very cumbersome and painful and presented a videotaped depiction of this daily routine. The plaintiff also contended that he has lost depth perception.

The plaintiff maintained that the prosthetic eye will require replacement every 3-5 years and the plaintiff made a claim for $________ in past and future costs. The plaintiff had obtained summary judgment on the necessary and reasonable nature of such costs.

The plaintiff, who had been employed as an automobile mechanic, maintained that although he returned after his recuperation, he was terminated because he could not keep up with the work. The plaintiff contended that he attempted to work in the construction field, but was unsuccessful. The plaintiff maintained that he is again attempting to work as a mechanic. The plaintiff, who did not present expert economic testimony, contended that he will clearly face great challenges in performing such work.

The plaintiff, who is married and has two small children, contended that he has difficulties playing with and caring for his children. The jury found for the plaintiff and awarded $________ for pain and suffering. $________ in medical bills were subsequently added.

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