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Negligent security - ear bitten off by co- defendant patron at defendant nightclub - Unsuccessful reattachment surgery - Pain and suffering.

Suffolk County, MA

In this negligent security case the plaintiff, a construction worker in his early 20s, alleged that he was assaulted and a portion of his ear bitten off in the defendant’s nightclub. The plaintiff brought suit against a patron of the nightclub for assault and against the defendant establishment for negligent security. The defendant patron denied biting the plaintiff’s ear and the defendant nightclub argued that it took appropriate action immediately and did not engage in negligent security. Prior to trial, the plaintiff’s demand was $________. No offer was made and the matter went to trial.

The plaintiff was a patron of the defendant nightclub. The defendant patron contended that the plaintiff approached a female friend of the defendant and asked her to dance. The woman declined, whereupon the plaintiff became angry and, according to witnesses, cursed and spit at the woman. When other friends asked him to stop, the plaintiff threw a drink on them. The defendant then approached the plaintiff and told him to stop being disrespectful of the women. The plaintiff cursed at the defendant, whereupon the defendant admittedly punched the plaintiff once in the nose, turned and walked away.

A brawl ensued and the police were summoned. In the course of the melee, the plaintiff sustained a serious bite to his ear which took a portion of his ear off. Staff of the nightclub located the plaintiff’s ear on the dance floor, put it in a cup of ice and the plaintiff was transported to the hospital where an attempt was made to reattach the portion of his ear that was removed. Three reattachment surgeries were ultimately unsuccessful. The plaintiff contended that he was traumatized by the event and remained unable to leave his house for a period of time.

Three of the plaintiff’s friends who were at the nightclub testified at the trial. All of the witnesses indicated that they saw varying parts of the events of that evening, but no one could say they saw the defendant bite the plaintiff’s ear. One of the plaintiff’s witnesses acknowledged that when he saw the defendant near the plaintiff, he charged across the dance floor knocking people down to get to the plaintiff. The defendant used this testimony to establish that the plaintiff’s friend may have thus, initiated the ensuing brawl.

The defendant patron denied biting the plaintiff’s ear and contended that someone else bit off the ear. The plaintiff’s testimony established that he went down on the floor and felt someone on top of him biting his ear, but could not say absolutely that it was the defendant who bit his ear. Evidence showed that the defendant had no blood on him whatsoever in contrast to the plaintiff who was covered in blood. The defendant patron admitted to sufficient facts to establish assault and battery with regard to punching the plaintiff.

The defendant patron was initially criminally charged with mayhem which was subsequently reduced to assault and battery and he was not convicted criminally for biting the plaintiff’s ear. The defendant nightclub denied any negligence, asserting that as soon as its employees saw trouble, they intervened and separated the parties immediately. The defendant’s security personnel got right in, broke up the fight and got medical assistance for the plaintiff within minutes.

The defendant patron called his friends, present that evening, as witnesses. The defendant’s witnesses’ testimony was consistent with the events as related by the defendant. The woman, who was asked by the plaintiff to dance, testified that she rejected his offer, whereupon he spit at her and threw a drink. The defendant’s witnesses also testified that the defendant punched the plaintiff one time and immediately walked away. The defendant nightclub’s manager testified that there were prominently displayed security personnel throughout the club. He also stated that, within seconds of the commotion, security personnel intervened, broke up the fight, saw that the plaintiff was injured and obtained medical aid.

The jury found that the plaintiff did not make his case for negligent security or for battery with regard to the ear biting and returned a judgment in favor of both defendants.

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