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ARTICLE ID 49749

$________ - DRAM SHOP - NEGLIGENT SECURITY AT TAVERN - NEGLIGENT SERVICE OF ALCOHOL TO VISIBLY IMPAIRED PATRONS - FIGHT RESULTS IN PARTIAL AMPUTATION OF RIGHT EAR AND COMMINUTED DISPLACED FRACTURE OF LEFT DOMINANT DISTAL RADIUS REQUIRING SEVERAL SURGERIES.

Kings County

In this dram shop/negligent security action, the 29-year-old plaintiff tavern patron contended that the defendant bar negligently failed to provide adequate security and violated dram shop laws by serving visibly intoxicated patrons. The plaintiff maintained that as a result, he was assaulted by several patrons inside the bar. The plaintiff claimed that as a result of the assault, he suffered the partial amputation of his right ear as well as a severe fracture of his left arm requiring several surgeries.

The evidence revealed that on Sept. 11, ________, the plaintiff James Barnes, age 29, a self-employed producer, went with a female date to McFadden’s Bar, located at ________ 2nd Avenue in Manhattan, where his date had worked as a waitress. They entered the bar, passed one of the bouncers working the door, and ordered their drinks. Barnes alleged that he noticed a large group of off-duty New York City firefighters at the bar near them. The plaintiff claimed that at some point during the night, his date went into the bathroom, leaving him alone at the bar, when he and a firefighter bumped into each other. Barnes claimed that immediately thereafter, he was struck over the head with a beer bottle, causing a piece of shattered glass to slice off a large section of his right ear. The plaintiff alleged that two or three people from the group then jumped him, dragged him to the ground, and beat him, crushing his left, dominant arm. The responding bouncers pushed the group outside and, the following day, McFadden’s manager filled out an incident report in which he wrote that Barnes was in a "fight" with an "unknown assailant" who fled the scene. Barnes claimed that following the incident, McFadden’s failed to call either the police or an ambulance. However, there was testimony that an ambulance did arrive.

Several days after the incident, one of the firefighters present that night, who was also the bar manager’s brother, was detained by the New York City Police Department. Barnes identified him from a photo array line-up as the firefighter who hit him with the bottle. Criminal charges were brought against him, but the charges were dismissed due to insufficient evidence. Barnes sued the owners of the bar, Dixie N.Y.C., Inc. d/b/a McFadden’s Saloon Bar & Restaurant, 2nd Operating, Inc. d/b/a McFadden’s Saloon Bar & Restaurant, and McFadden’s Saloon Bar & Restaurant.

The plaintiff alleged that the defendant violated the state’s Dram Shop law. Barnes claimed that prior to the incident, he saw the group of firefighters do at least three rounds of shots/beers and that they appeared rowdy and drunk. He claimed that after being struck over the head with the bottle, he turned around and saw the firefighter right behind him. Plaintiff’s counsel stated that one of the firefighters was a former McFadden’s employee and the brother of the bar’s manager. During the defendant’s security expert’s preserved trial testimony, plaintiff’s counsel obtained the summary of an interview by the defendant’s private investigator of the McFadden’s bouncer who was working the door that night. In the bouncer’s signed statement, he revealed that even before Barnes and his date had arrived at McFadden’s, the manager’s brother and his fellow firefighters were acting drunk, rowdy, and out of control. The bouncer claimed that he, as well as the other bouncers, had told the brother to keep his group under control, but that it soon became apparent that the brother was the most out of control person in the group. The bouncer alleged that he and the other bouncers told the on-duty McFadden’s manager about the problem, but was told not to eject the group.

The plaintiff alleged that McFadden’s manager, who knew about these rowdy patrons, covered it up by authoring the incident report that left out all the details of what really transpired. The defendants claimed that the manager’s brother had nothing to do with the assault and that the plaintiff was injured in a fight with a person he could not identify. They contended that the plaintiff could not show that McFadden’s served any individual that night who was visibly intoxicated and was later involved in the fight. The also claimed that the bar’s security personnel acted appropriately under their legal duty to provide the proper minimal security measures. The defendants alleged that the fight was unforeseeable and that their response to it was appropriate. As stated above, since the defendant’s premises security expert could not appear at trial, the defense counsel opted to preserve the witness’ testimony on videodisc, but in so doing the defendant was required to present it’s expert on liability before the plaintiff was required to present any evidence on its case in chief. The expert testified that everything McFadden’s did on the night of the incident was consistent with accepted standards in the premises security industry. He also stated that he had arrived at his opinion after reviewing, among other things, investigative reports and handwritten statements from the defendant’s employees which were secured by the defendant’s investigator and sent to the defense expert. Defense counsel claimed that these documents were protected by attorney/client and work product privileges and that they were inadvertently disclosed to plaintiff’s counsel. Defense counsel, therefore, objected to plaintiff’s counsel’s use of these alleged privileged documents in any form at trial.

This case was initially tried in June ________ before Justice Larry Martin and who ruled that all of the damaging evidence obtained by plaintiff’s counsel during the premises security expert’s testimony was inadmissible because it was protected by the attorney/client privilege. That case, however, resulted in a mistrial. Martin then recused himself and the case was thereafter assigned to Justice Lawrence Knipel, who ruled that the defendants had waived the privilege regarding the documents and allowed them into evidence.

Barnes related that he was taken to the hospital by taxicab. He sustained a partial amputation of his right ear lobe. The severed piece of the ear was never recovered, leaving Barnes with a deformed ear. He also sustained a comminuted displaced fracture of the left dominant distal radius as a result of the assault. Barnes’ claimed that the wrist fracture was treated with two unsuccessful closed reductions and then treated with open reduction surgery and the application of an external fixator. He also alleged that his plastic surgeon proposed a three-stage, six-month procedure by which the ear could be reconstructed. However, Barnes maintained that he could not afford the $________ procedure to fix his mutilated ear at this time. Barnes sought recovery for his past and future pain and suffering. He also claimed that he had $________ in past medical costs and will have $________ in future medical costs. He asked the jury to award him to award him a total of $1.9 million. Defense counsel did not call their medical experts and had the judge instruct the jury that their experts would have in no way rebutted any of the medical findings or opinions of the plaintiff’s doctors.

The jury found that the defendants violated the dram shop law and were negligent in their provision of security. The jury also found that the defendants were liable for Barnes’ injuries and awarded Barnes $________ that included: $________ for past medicals; $________ for future medicals; $________ for punitive exemplary damages; $________ for past pain and suffering and $________ for future pain and suffering.

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