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ARTICLE ID 32822

$________ INCLUDING $________ TO FEMALE PLAINTIFF STRUCK IN THE HEAD WITH BASEBALL BAT ATTEMPTING TO HELP MALE PLAINTIFF WHO IS ALSO STRUCK WITH BAT IN HEAD WHILE BEING ASSAULTED OUTSIDE OF CONVENIENCE STORE - NEGLIGENT SECURITY BY STORE OWNER - DEFAULTING ASSAILANTS HARASSING MALE PLAINTIFF FOR SOME 15 MINUTES WHILE IN STORE BEFORE ASSAILANTS EJECTED - FEMALE PLAINTIFF SUFFERS PROBABLE SKULL FRACTURE AND CLOSED HEAD INJURY CAUSING EXACERBATION OF PREEXISTING NEUROLOGICAL AND COGNITIVE DEFICITS - MALE PLAINTIFF SUFFERS TINNITUS AND HEADACHES THAT WILL PERMANENTLY OCCUR SEVERAL TIMES PER WEEK.

Monmouth County

In this action, the plaintiffs, then a 19-year-old convenience store customer and his 17-year-old girlfriend, who was waiting in the coplaintiff’s car, contended that the defendant negligently failed to call the police despite strong indications that a physical assault by three brothers, age 16, 18 and 21, who were threatening the male plaintiff while all were in the store, was imminent. The youths, who were asked to leave the store, were waiting for in the parking lot for the male plaintiff to exit the store. When the male plaintiff left the store and was in the parking lot, the three youths attacked him and struck him in the head with a baseball bat. The female plaintiff attempted to come to the coplaintiff’s rescue and was also struck in the head with a baseball bat. The female plaintiff contended that she sustained a probable skull fracture, a subdural hematoma and a closed head injury that was superimposed on preexisting neurological deficits and developmental delays, heightening her prior difficulties with memory and concentration and causing a slight reduction in her IQ scores. This plaintiff contended that the injuries will permanently contribute significantly to a diminished earning capacity. The coplaintiff contended that he sustained a concussion and will permanently suffer episodes of headaches and tinnitus that occur several times per week. This plaintiff made no income claims.

The defendant store owner named the attackers as third-party defendants, contending that their conduct should be apportioned by the jury.

The evidence disclosed that when the male plaintiff first entered the store, the youths began to verbally harass him, making comments that his appearance was "goth" in nature. The plaintiffs maintained that both the attackers and the male plaintiff were in the store for at least 15 minutes because the defendant store owner was in the course of preparing sandwiches for the attackers when the plaintiff entered.

The plaintiff contended that the verbal harassment continued, and that when the defendant store owner told the others to leave the store, they told the plaintiff that they would be waiting for him in the parking lot. When the male plaintiff left the store, he was assaulted with the bat, and when the female plaintiff attempted to come to his rescue, she was struck in the head with the bat as well.

The plaintiff’s security expert maintained that the threat of violence was imminent and that the defendant should have called the police.

The plaintiff had elicited testimony from the defendant during discovery that the assailants were in the store for a considerable period before the male plaintiff entered and were not asked to leave until approximately 15 minutes had elapsed after the male plaintiff entered and that she "had a feeling" that the plaintiff could be assaulted when he left.

The plaintiff also elicited deposition testimony from the defendant that under her protocol as taught to her employees, she would not become involved in an altercation, but would call the police if violence appeared imminent. The plaintiff argued that based upon this evidence, it was clear that the defendant had acted negligently as a matter of law. The court, during a Rule ________ hearing prior to trial, concurred with respect to the issue of breach of duty and submitted the case to the jury on the issues of proximate cause and damages.

The plaintiff presented an investigating police officer who related that the typical response time is two to three minutes and probably less at the time because the incident occurred shortly after midnight when there was a change of shifts with some overlapping. The plaintiff also established that the first ________ call was placed at 12:44 A.M., and that at 12:50 A.M., the EMTs arrived and began rendering assistance.

The plaintiff argued that if the store owner called the police when she observed the escalating situation and asked the youths to leave after verbally harassing the male plaintiff for 15 minutes, it was very likely that they would have arrived in time to prevent the attacks.

The female plaintiff contended that she sustained a probable linear skull fracture which healed conservatively, as well as a closed head injury and suffered a very significant exacerbation of preexisting neurological deficits and developmental delays which had previously impacted to some degree on this plaintiff’s memory and concentration abilities. The plaintiff, who had difficulties with school work before the subject accident occurred, maintained that the subject injury occasioned a very significant exacerbation, and that her school work deteriorated further after this incident. This plaintiff’s neuropsychologist testified that the plaintiff’s IQ scores had diminished to some extent as a result of the subject attack. The plaintiff, who underwent very little treatment, contended that it was doubtful if additional therapy would help. The plaintiff maintained that because of the exacerbation, this plaintiff’s career options are much more limited, and the plaintiff made a claim for $________ to $________ in future income losses.

The male plaintiff maintained that he sustained a closed head trauma and concussion and that he will permanently suffer episodes of tinnitus and headaches. The plaintiff related that the episodes occur several times per week and last from a short period to most of the day. This plaintiff was working as a dog groomer at the time of the incident and missed one month from work. This plaintiff subsequently entered a course of studies in mortuary sciences and made no future income claims.

The court held that the defendant breached her duty as a matter of law and submitted the case on the issue of proximate cause and damages.

The jury found, 5-1, for the plaintiffs on proximate cause and awarded the female plaintiff $________ and $________ to her mother on the per quod claim. They also awarded the male plaintiff $________.

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