127 A.D.2d 374 | N.Y. App. Div. | 1987
OPINION OF THE COURT
Plaintiff brought the instant damage action for personal injuries he sustained as a result of allegedly being attacked in a discotheque and cocktail lounge in a downtown hotel in the City of Albany. He sued, among others, the corporate operator of the establishment and the agency which provided security there on two alternative causes of action, negligence and the intentional tort of assault and battery. Plaintiff’s proof at the trial, from his testimony and that of two friends who were eyewitnesses, was that, while sitting at. the bar having a drink, another patron, who was intoxicated, became- aggressive, spilled a drink on him and then struck him. Plaintiff and his assailant grappled until two "bouncers” employed by the establishment seized the man who had attacked plaintiff and ejected him from the premises. Moments later, plaintiff was struck from behind by a bus boy and another bouncer, as a result of which he fell and suffered the injuries complained of. The defense essentially was that plaintiff was never attacked by security personnel of the establishment but, in fact, any injuries he sustained were wholly as a result of his fracas with the other patron. Statements by plaintiff given immediately after the incident, consistent with the defense’s version of what transpired, were introduced into evidence.
At the close of all the proof, the trial court dismissed plaintiff’s negligence cause of action. The jury returned a verdict of no cause of action on the remaining claim for assault and battery. This appeal by plaintiff followed.
Plaintiff’s only assignment of error is the refusal of the trial court to submit his cause of action in negligence to the jury. It is conceded there was no evidence introduced of negligence on
Each of the cases plaintiff cites as precedent for the existence of a cause of action for negligent assault involved injury inflicted by a peace officer in the course of the performance of his duties (see, Flamer v City of Yonkers, 309 NY 114; Toomey v New York City Tr. Auth., 6 AD2d 906; McCarthy v City of New York, 96 NYS2d 910, affd 273 App Div 945). Whether or not these cases would today be decided the same way in light of the analysis found in the more recent case law and the Restatement (Second) of Torts, their application has been expressly limited to conduct in the course of law enforcement activities by the police, despite argument that they extend to assaultive behavior by a civilian (see, Figueroa v Kirmayer, 32 AD2d 923, 924 [Brennan, J., concurring in part and dissenting in part], affd 26 NY2d 923, 924). Accordingly, the trial court properly dismissed plaintiffs negligence cause of action before submitting the case to the jury.
Mahoney, P. J., Weiss, Mikoll and Harvey, JJ., concur.
Judgment affirmed, without costs.
At the conclusion of plaintiff’s proof, plaintiff stipulated to discontinue the action as against defendants Albany Motel Enterprises, Inc. and Servico, Inc. Therefore, the only remaining defendants were Ten Eyck Hotel Associates and Servico Management Corporation, who are collectively referred to as defendants.