Opinion
No. 114612/09.
2010-06-17
Zoran MILOSEVIC, Plaintiff, v. OWEN O'DONNELL, Joost U.S. Inc, Joost UK Limited and Obivia, LLC, Defendants.
MEMORANDUM DECISION
CAROL R. EDMEAD, J.
Defendant, Joost U.S. Inc. (“Joost US”),
moves pursuant to CPLR § 3211(a)(7) to dismiss the fourth and fifth causes of action asserted by Zoran Milosevic (“plaintiff”), which are the sole causes of action asserted against Joost US, for failure to state a cause of action.
In 2009, Joost U.S. changed its name to Baaima U.S. Inc., however, for ease of reference, the Court will refer to the entity as Joost US.
Factual Background
This case involves an incident that allegedly occurred during a “Thirsty Thursday” company holiday gathering at the “Obivia” lounge, during which defendant, Owen O'Donnell (“O'Donnell”), while allegedly intoxicated, spontaneously struck plaintiff, causing him permanent physical and emotional injuries. The lounge was operated by defendant, Obivia, LLC (“Obivia”).
Plaintiff commenced this action against Joost U.S. for negligence (fourth cause of action) and intentional and/or wanton conduct (fifth cause of action). In his Complaint, plaintiff alleges that O'Donnell was employed by either Joost U.S. or Joost UK Limited
at the time of the incident, and that O'Donnell, acting on behalf of defendants organized and/or authorized “Thirsty Thursday” gatherings at different bars and lounges.
Joost U.S. asserts that Joost UK Limited has not appeared in the action and, upon information and belief, has not been served with process. Furthermore, Joost UK Limited is in liquidation in the United Kingdom.
In support of its motion to dismiss,
Joost U.S. argues that plaintiff's fourth cause of action fails to state a cause of action based upon negligence. Even assuming that Joost U.S. owed a duty to plaintiff, there can be no liability because Joost U.S. did not breach any such duty. Although not specifically pled, there are several theories upon which plaintiff's negligence claim against Joost U.S. might arise: (1) vicarious liability, or respondeat superior; (2) negligent supervision; (3) failure to exercise reasonable care to protect plaintiff as an invitee of Obivia; and (4) Dram Shop liability.
JOOST U.S. previously filed and then withdrew a similar motion following an amendment of plaintiffs complaint.
Joost U.S. argues that Joost UK, not Joost US, employed O'Donnell, so none of these theories of vicarious liability or respondeat superior apply to Joost US. Even if “the incident occurred at the job site,” it “the assault was not within the scope” of employment. O'Donnell's alleged assault on plaintiff was a sudden, inexplicable and unforeseeable act during an off-site social gathering. As plaintiff himself alleges, he “was struck suddenly and without warning” by O'Donnell. This act fell completely outside the duties and scope of O'Donnell's employment and could not have been reasonably anticipated by Joost US, and the Amended Complaint does not allege otherwise. Thus, liability cannot be imputed to Joost U.S. for O'Donnell's unforeseeable, allegedly willful act. Additionally, plaintiff's allegation that Joost U.S. “knew or should have known of” O'Donnell's intoxicated condition and/or propensity for excessive alcohol use ....“ cannot impute liability in negligence on Joost US. There is no allegation that Joost U.S. had known (or had reason to know) of O'Donnell's “violent propensities” to assault coworkers when intoxicated. Therefore, there is no basis to hold Joost U.S. liable for negligence under a vicarious liability, or respondeat superior, theory.
Likewise, the failure to establish the element of a negligent supervision claim that an employer knew or should have known of the employee's propensity to commit the alleged tortious act negates the employer's liability as a matter of law. As a matter of law, neither control nor supervision could have prevented such an off-site, sudden attack, which, even plaintiff admits, occurred “without warning.” Further, there is no allegation that Joost U.S. knew or should have known of O'Donnell's propensity to commit this alleged tortious act—assault of a coworker while intoxicated.
Furthermore, argues Joost US, plaintiff cannot claim that Joost U.S. failed to exercise reasonable care to protect plaintiff. Liability may only be imposed for injuries that occurred on defendant's property or an area under defendant's control, where defendant had the opportunity to supervise the intoxicated guest. Joost U.S. neither owned nor operated the premises in which plaintiff allegedly was injured. Further, Obivia was not under the control of Joost US. These allegations are absent from the Amended Complaint. Separately, as O'Donnell was “struck suddenly and without warning,” even assuming that Joost U.S. owed plaintiff a duty because he was injured in an area under the control of Joost US, there was no opportunity for Joost U.S. to control O' Donnell's alleged “sudden” attack-and the Amended Complaint does not allege otherwise.
Joost U.S. also notes that plaintiff's first cause of action seeks to hold Obivia liable under New York's Dram Shop Act (General Obligations Law (“G.O.L.”) § 11–101), and there can be no liability on the part of Joost U.S. for negligently causing, ordering, instructing or allowing Obivia to serve alcohol to O'Donnell; there is no common law cause of action for the “negligent provision of alcohol.” Liability arises only if Joost U.S. violated G.O.L. § 11–101 and plaintiff makes no such assertion. Plaintiff's claims that Joost U.S. was under “a duty to refrain from permitting, fostering, creating and condoning an environment where alcoholic beverages would be promoted, sold, served or otherwise provided to those invited patrons and especially to those patrons who were intoxicated or who were actually or apparently under the influence of liquor” fails, as there is no such duty in New York. Therefore, argues Joost US, it could not be liable for any breach thereof. Thus, plaintiff's fourth cause of action for negligence must be dismissed for failure to state a cause of action. And, even if plaintiff advanced this allegation, it would still fail. Under G.O.L. § 11–101(1), a party must either (a) unlawfully sell or (b) unlawfully assist in procuring alcohol for the intoxicated person. There is no allegation that Joost U.S. sold any alcohol to O'Donnell—or anyone else—during the party at Obivia. Therefore, on its face, the Amended Complaint fails to allege the unlawful sale of alcohol by Joost US. Separately, a defendant can be liable under G.O.L. § 11–101(1) if it unlawfully assists in procuring alcohol for an intoxicated person. “The term ‘procure’ is not defined in either the G.O.L. or the Alcoholic Beverage Control Law and the term is therefore given its ordinary and usual meaning, which includes using one's own money to purchase alcohol for another, contributing money to the purchase of the alcohol, and giving away alcohol to another after purchasing it with one's own money. The Amended Complaint does not allege that Joost U.S. unlawfully assisted in the procurement of alcohol for O'Donnell.
Joost U.S. also argues that plaintiff's fifth cause of action for “intentional and/or wanton conduct” fails as there is no cause of action in New York for “intentional and/or wanton conduct.” Further, there is no prohibition under New York law that prevents an employer from inviting non-minor employees to “engage in drinking.” While not specifically pled, this cause of action sounds in intentional tort or gross negligence, and mere allegations that a defendant acted in a ‘willful,’ ‘deliberate,’ or ‘intentional’ manner in causing harm, will not be enough to uphold an intentional tort claim.” Plaintiff does not allege that Joost U.S. violated the Dram Shop Act. Plaintiff does not allege that Joost U.S. intended to harm plaintiff or intended that O'Donnell harm plaintiff. Accordingly, the portion of plaintiff's fifth cause of action that sounds in intentional tort cannot stand.
Joost U.S. also maintains that there can be no liability under a gross negligence theory either, as the Amended Complaint fails to contain “factual averments alleging conduct of such [an] aggravated character.”
In the alternative, Joost U.S. argues that plaintiff's claims are barred by Workers' Compensation Law (“WCL”) § 11 even if O'Donnell were acting within the scope of his employment—because plaintiff's exclusive remedy would be a claim for workers' compensation. Plaintiff alleges that he was an employee of Joost U.S. but failed plead that Joost U.S. did not have the required workers' compensation insurance. Further, even if Joost US's actions amounted to gross negligence or recklessness, these are not exceptions under the WCL; thus the fifth cause of action for “intentional and/or wanton conduct” also should be dismissed pursuant to WCL § 11. While there is an exception the WCL where the “injury is sustained to an employee due to an intentional tort perpetrated by the employer or at the employer's direction, plaintiff must show that the employer's acts were ‘directed at causing harm to the particular employee” and plaintiff's bare allegations in his Amended Complaint do not support a claim for intentional tort.
In opposition, plaintiff first contends that Joost US's motion is defective in that it fails to include an affidavit or supporting affirmation.
Plaintiff next contends that in considering the application of vicarious liability to the instant case, one must first look to the status of O'Donnell. O'Donnell was the Chief Financial Officer (“CFO”) with direct responsibility for all financial areas of the company and for all intents and purposes, he was merged with the company since the company can only act through its officers and employees. More importantly, he supervised “the administrative areas of Joost U.S. including the legal human resources and general administrative functions.” Essentially, he was acting for and on behalf of the company and, as the CFO, he had authority to bind the company by his actions—whether his actions were good, bad or indifferent. O'Donnell's role in overseeing the “Thirsty Thursday” and holiday parties was clarified further by an e-mail personally sent by him to his staff which reads, as follows:
“We've all worked hard this past year and its time to celebrate the end of the year and the holiday season with celebrations in each of our three offices. The purpose of these events is to celebrate our employees and to give everyone a chance to unwind and enjoy each others' company.
Before we kick off our first party tonight ... I want to remind everyone about our code of conduct—please check the Joost U.S. Intranet for a list of company policies relating to conduct and behavior at work.
While we hope everyone will enjoy themselves, please remember that these are company-sponsored celebrations and normal work rules and standards apply. We expect everyone to act responsibly and will not tolerate behavior at these parties that we wouldn't allow in the office.
Finally these parties are private events, so please refrain posting photos from the events on Flickr or other public sites, without the explicit permission from any coworkers in the photos....
Consequently, there is more than just a colorable claim against both O'Donnell and Joost US. These claims arise independently and, in the case of Joost US, it also derives vicariously from O'Donnell's intentional actions in striking plaintiff and violations of his own directives issued as the CFO and the Administrator of Joost US's policies and procedures.
Plaintiff contends that this issue of control has yet to be explored, since no discovery has taken place and nothing has yet been disclosed concerning the arrangements between Obivia and Joost U.S. with regard to the Thirsty Thursday party that led to plaintiff being injured. Joost U.S. and O'Donnell were directly responsible for organizing these “Thirsty Thursday” gatherings where the express purpose was to consume alcohol and, in many circumstances, abuse it. It is common knowledge that alcohol has certain expected effects on people, whether the effects are intended or not. Some of those effects include a reduction in inhibitions and the tendency to become more aggressive and belligerent. In that regard defendants have accountability for their actions which is mandated by black letter law. It is well settled that some criminal acts may be “a reasonably foreseeable consequence of circumstances created by the defendant.” Likewise, the individual damaged by these actions “need not demonstrate ... that the precise manner in which the accident happened, or the extent of injuries, was foreseeable.”
While a portion of this case is about Joost US's specific knowledge regarding its officers and company practices, it is not about whether its CFO's violent propensities and assaultive behavior were specifically directed at “co-workers when intoxicated,” although that information and other related information will certainly come out during discovery.
Plaintiff further argues that it is undisputed that plaintiff is entitled to bring an action against his employer for negligence where an intentional tort was perpetrated by the employer or at the employer's direction. Thus, Joost US's attempt to extricate itself from this litigation is premature, given a) the significance of plaintiffs allegations, b) the presumptive truth of same pursuant to the CPLR and case law and c) the commingling of authority between the company, Joost US, and its CFO, O'Donnell vis-a-vis “Thirsty Thursdays.” Joost U.S. had a long-standing policy of scheduling “Thirsty Thursday” parties, specifically designed to engage people in drinking alcoholic beverages. This behavior on the part of the company was intentionally focused on that express purpose. Its employees were solicited by e-mail to attend with the understanding that there would be an open bar tab and alcoholic beverages would be provided. Joost U.S. did this regularly and intentionally with a callous disregard to the ramifications. This policy did not only extend to gatherings outside the company premises. Rather, as shown by in the attached Joost U.S. e-mails dated June 27, 2008 and September 15, 2008, alcohol also found its way into the workplace and was actually stored on the premises. This was a dangerous and irresponsible policy which we contend had its genesis through Joost US's corporate culture of alcohol abuse—a culture represented in the photograph attached in plaintiff's opposition papers. One of the officers central to Joost US's operation also happens to be a named defendant who was actually responsible for the actions which harmed my client.
Plaintiff contends this policy of advocating and condoning alcohol use ultimately resulted in the egregious and intentional acts by O'Donnell which cannot be described as unforeseen nor unpredictable and caused plaintiff, to suffer serious and debilitating injuries. Joost US's responsibility derives from its own intentional actions and vicariously from the intentional, seven e-mails.
In reply, Joost U.S. argues that as its motion does not seek to place facts before the Court, an affirmation or affidavit is unnecessary; the memorandum of law is sufficient to support a motion to dismiss pursuant to CPLR § 3211(a)(1).
Joost U.S. also argues that torts committed by inebriated employees at social gatherings are not within the scope of employment, even if the gatherings are sponsored by the employer. There is no conceivable theory under which the O'Donnell's slapping of the plaintiff was done in furtherance of Joost US's business. Thus Joost U.S. cannot be held liable under the doctrine of respondeat superior.
Plaintiff's attempts to argue that Joost U.S. was independently negligent in permitting its employees to socialize at events at which alcohol was consumed also fails, because it is well settled that only landowners and businesses subject to the Dram Shop laws can be liable for furnishing alcohol to an adult who later harms someone. Since Joost U.S. neither owns nor operates the bar where the incident allegedly took place, and Joost U.S. did not sell any alcohol to O'Donnell, it cannot be liable for negligence as a matter of law.
Further, the fifth cause of action alleging intentional and/or wanton conduct lacks merit. This cause of action, which is based on the same factual allegations as, and is duplicative of, plaintiff's fourth cause of action for negligence, seeks to impose punitive damages on Joost U.S. for permitting its employees to organize after-work parties that involve alcohol consumption. Such activities do not come close to the level of outrageous conduct necessary to support punitive damages.
Finally, plaintiff does not refute Joost US's argument that plaintiff's claims are barred by the WCL.
While plaintiff does not contest Joost US's argument that his claims against Joost U.S. are barred by the WCL, it is not clear that the WCL would bar plaintiff's claims ( see Herman v. Greenpoint Barrel & Drum Reconditioning Co., 9 A.D.2d 572, 189 N.Y.S.2d 353 [3d Dept 1959] (where employer furnished quantities of intoxicating liquor to celebrate the holiday season, and the decedent, with a co-employee, engaged in a contest as to who could drink the other under the table,' Appellate Division reversed a Workers' Compensation Board finding in favor of the claimant that the furnishing of alcohol at a Christmas party improved employer-employee relations and assisted in building morale among the employees, constituting a risk of employment, stating: “The intoxication was the result of excessive personal use of alcohol which departed from any rational relationship to the work.”).
Discussion
In determining a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the Court's role is ordinarily limited to determining whether the complaint states a cause of action (Frank v. DaimlerChrysler Corp., 292 A.D.2d 118, 741 N.Y.S.2d 9 [1st Dept 2002] ). The standard on such a motion is not whether the party has artfully drafted the pleading, but whether deeming the pleading to allege whatever can be reasonably implied from its statements, a cause of action can be sustained ( see Stendig, Inc. v. Thom Rock Realty Co., 163 A.D.2d 46 [1st Dept 1990]; Leviton Manufacturing Co., Inc. v. Blumberg, 242 A.D.2d 205, 660 N.Y.S.2d 726 [1st Dept 1997] [on a motion for dismissal for failure to state a cause of action, the court must accept factual allegations as true] ). When considering a motion to dismiss for failure to state a cause of action, the pleadings must be liberally construed ( see,CPLR § 3026), and the court must “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit into any cognizable legal theory” (Nonnon v. City of New York, 9 NY3d 825 [2007];Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972 [1994] ). Where the parties have submitted evidentiary material, including affidavits, or where the bare legal conclusions and factual allegations are “flatly contradicted by documentary evidence” the pertinent issue is whether claimant has a cause of action, not whether one has been stated in the complaint ( see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275 [1977];R.H. Sanbar Projects, Inc. v. Gruzen Partnership, 148 A.D.2d 316, 538 N.Y.S.2d 532 [1st Dept 1989]; Biondi v. Beekman Hill House Apt. Corp., 257 A.D.2d 76, 81, 692 N.Y.S.2d 304 [1st Dept 1999], affd94 N.Y.2d 659, 709 N.Y.S.2d 861 [2000];Kliebert v. McKoan, 228 A.D.2d 232, 643 N.Y.S.2d 114 [1st Dept], lv denied89 N.Y.2d 802, 653 N.Y.S.2d 279 [1996] ).
At the outset, the Court notes that Joost US's motion is not defective. As pointed out by Joost US, N.Y.Ct.Rules, § 202.8(c) provides that in support of a motion, “Affidavits shall be for a statement of the relevant facts, and briefs shall be for a statement of the relevant law.” Joost US's motion to dismiss the Complaint for failure to state a cause of action need only be supported by the Complaint at which the motion is directed and legal arguments; no factual assertions need be made in an affidavit or affirmation. Therefore, it cannot be said that the motion by Joost U.S. was defective for failure to attach an affirmation or affidavit.
Fourth Cause of Action
In his fourth cause of action, plaintiff alleges that O'Donnell, on behalf of Joost US, organized and authorized “Thirsty Thursday” gatherings in various bars and lounges in New York City and invited individuals to these gatherings. It is alleged that defendants owed the invited patrons, including the plaintiff, a duty to exercise reasonable care to protect plaintiff from injury at the hands of a fellow patron or by defendant's own agents and employees, by properly organizing, maintaining, supervising, managing, operating and controlling the premises. Defendants knew or should have known of O'Donnell's intoxicated condition and/or propensity for excessive alcohol use, yet said defendants continued to negligently instruct and/or order and/or allow Obivia to sell, serve, furnish or provide alcoholic beverages to O'Donnell. Defendants breached their duty to plaintiff by fostering, creating and permitting the conduct of O'Donnell, and by failing to reasonably protect the plaintiff from the offensive and illegal conduct created by O'Donnell's intoxicated condition.
While not specifically stating so in opposition to the motion, plaintiff seeks to impose liability upon Joost U.S. under the theories of respondeat superior and the failure to exercise reasonable care at the premises concerning the “Thirsty Thursday” event at Obivia.
The express claim under the Dram Shop Act and reference to the G.O.L., is asserted solely against Obivia in plaintiff's first cause of action, and no such claim or reference to the G.O.L. is asserted against Joost US. It is noted that under “the common law, no tort cause of action lay against one who furnished, whether by sale or by gift, intoxicating liquor to a person who thereby became intoxicated and in consequence of his intoxication injured the person or property either of himself or of another” (Gabrielle v. Craft, 75 A.D.2d 939, 428 N.Y.S.2d 84 [3d Dept 1980] ). “The Legislature saw fit to alleviate the obstacles posed by the common law by enacting the Dram Shop Act so as to impose liability upon the commercial dispensers of alcoholic beverages. The Dram Shop Act must be narrowly construed, and if liability is to be extended so as to impose liability upon the social host, it should be accomplished through the legislative process and not through the courts” ( id.).
Further, plaintiff's reference to supervision by Joost U.S. is made in connection with the alleged duty to supervise the premises as it was being used to host Thirsty Thursdays (Amended Complaint, ¶ 53). Therefore, the Court does not address Joost US's arguments regarding negligent supervision or the Dram Shop Act.
Under the doctrine of respondeat superior, an employer can be held vicariously liable for the torts committed by an employee acting within the scope of the employment (Judith M. v. Sisters of Charity Hosp., 93 N.Y.2d 932, 933, 693 N.Y.S.2d 67;Riviello v. Waldron, 47 N.Y.2d 297, 302, 418 N.Y.S.2d 300). Under this doctrine, “the employer may be held liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment” (Judith M. v. Sisters of Charity Hosp., 93 N.Y.2d at 933). However, liability will not attach for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer's business (Carnegie v. J.P. Phillips, Inc., 28 AD3d 599, 600, 815 N.Y.S.2d 107;Schuhmann v. McBride, 23 AD3d 542, 543, 804 N.Y.S.2d 779;Oliva v. City of New York, 297 A.D.2d 789, 790, 748 N.Y.S.2d 164;Vega v. Northland Mktg. Corp., 289 A.D.2d 565, 566, 735 N.Y.S.2d 213).
Assuming as true, as this Court must, the allegations that O'Donnell, under the authority of Joost US, organized “Thirsty Thursdays” as a company party at Obivia, and that Joost U.S. was aware that its employees, including O'Donnell, would drink excessive alcoholic beverages at this company party, such allegations are insufficient to assert a claim for vicarious liability against Joost US. Plaintiff intimates that the drinking of alcoholic beverages was condoned in the office and at the subject event. However, there is no indication or allegation in the Complaint or record that Joost U.S. authorized or ratified the assault or any prior assaultive behavior by O'Donnell ( see Zanghi v. Laborers' Intern. Union of North America, AFL–CIO, 8 AD3d 1033, 778 N.Y.S.2d 607 [4th Dept 2004] citing Piniewski v. Panepinto, 267 A.D.2d 1087, 1088, 701 N.Y.S.2d 215,Walsh v. Torres–Lynch, 266 A.D.2d 817, 818, 697 N.Y.S.2d 434, and Martin v. Curran, 303 N.Y. 276, 279–280). Although the email O'Donnell sent to employees of Joost U.S. invites employees to “unwind and enjoy each others' company” at a bar/lounge, and drinking appears to have been condoned, there is no allegation or indication that the “assault was condoned, instigated or authorized” by Joost U.S. ( see Yeboah v. Snapple, Inc., 286 A.D.2d 204, 729 N.Y.S.2d 32 [1st Dept 2001] (“An employer cannot be held vicariously liable for an alleged assault where the assault was not within the scope of the employee's duties, and there is no evidence that the assault was condoned, instigated or authorized by the employer”)). In fact, O'Donnell's email reminds employees of defendants' “code of conduct,” that “a list of company policies relating to conduct and behavior at work” was available on “the Joost U.S. Intranet” and that the “normal work rules and standards apply.” Notably, O'Donnell, stated in his email: “ We expect everyone to act responsibly and will not tolerate behavior at these parties that we wouldn't allow in the office.” (Emphasis added). And, plaintiff's opposition indicates that O'Donnell's striking of the plaintiff was in violation of “his own directives issued as the CFO and the Administrator of Joost US's policies and procedures.” Liability will attach on such a claim only when the employer knew or should have known of the employee's violent propensities (Yeboah citing Detone v. Bullit Courier Serv., 140 A.D.2d 278, 528 N.Y.S.2d 575, lv. denied 73 N.Y.2d 702, 537 N.Y.S.2d 490). Here, there is no allegation or indication that Joost U.S. knew of O'Donnell's propensities for assaultive behavior, nor is there any indication that anything transpired that have would alerted Joost U.S. to the possibility that an assault would take place. Therefore, the Complaint fails to state a claim for negligence against Joost U.S. under the theory of vicarious liability or respondeat superior. Plaintiff also failed to state a claim of negligence as to the purported liability of Joost U.S. in regard to its alleged “control” over the Obivia premises at the Thirsty Thursday event. An owner or possessor of land has a common-law duty to maintain the public areas of the property in a reasonably safe condition for those who use it (Williams v. Citibank, N.A., 247 A.D.2d 49, 677 N.Y.S.2d 318 [1st Dept 1998] citing Nallan v. Helmsley–Spear, Inc., 50 N.Y.2d 507, 519, 429 N.Y.S.2d 606,Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564 and Restatement [Second] of Torts §§ 359–360). This duty includes the obligation to maintain minimal security precautions to protect users of the premises against injury caused by the reasonably foreseeable criminal acts of third persons ( Williams citing Miller v. State of New York, 62 N.Y.2d 506, 513, 478 N.Y.S.2d 829,Nallan v. Helmsley–Spear, Inc., supra, at 519). Since, however, the owner or possessor is not an insurer of the safety of those who use the premises ... it cannot, even in the background of a history of crime committed on the premises, be held to a duty to take protective measures unless it is shown that he knows or, from past experience, has reason to know that there is a likelihood of third-party conduct likely to endanger the safety of those using the premises ( Williams citing Nallan, supra, at 519, 429 N.Y.S.2d 606 and Restatement [Second] of Torts § 344, comment f.) It is that knowledge, actual or constructive, that creates the duty to take reasonable precautions for the safety of those lawfully using the premises.
Again, there is no allegation or indication that Joost U.S. was aware that O'Donnell had a propensity to commit assaultive behavior in any manner. Therefore, even if discovery yielded evidence that Joost U.S. had “control” of the Obivia premises at the “Thirsty Thursday” event, such control, in the absence of any knowledge of the likelihood of third-party conduct likely to endanger the safety of Joost U.S. employees such as the plaintiff, is insufficient to state a claim against Joost US. Therefore, in light of the above, the fourth cause of action against Joost U.S. is dismissed.
Fifth Cause of Action
In his fifth cause of action, plaintiff alleges that defendants engaged in knowing, intentional, willful and/or wanton and/or reckless conduct and created a dangerous environment for the plaintiff by inviting employees to engage in drinking and otherwise engage in conduct previously described and that plaintiff was struck by O'Donnell as a proximate cause of defendants' conduct.
Absent from plaintiff's opposition is any reference to “willful,” “wanton,” or “reckless” conduct. Instead, plaintiff merely refers to the “intentional” conduct of Joost U.S. scheduling “Thirsty Thursday” parties in order to engage people in drinking alcoholic beverages. Plaintiff then ties this “intentional” conduct to its vicarious liability for the actions of O'Donnell. However, scheduling parties where people are expected to drink alcoholic beverages can hardly, in this society and in this day and age, be considered wanton and/or reckless conduct in and of itself; and, as stated above, there is no allegation that Joost Us was aware of any employee's, let alone O'Donnell's, propensity to engage in assaultive behavior. Therefore, the fifth cause of action fails to state a claim against Joost US.
Conclusion
Based on the foregoing, it is hereby
ORDERED that the motion by defendant, Joost U.S. Inc. pursuant to CPLR § 3211(a)(7) to dismiss plaintiff's fourth and fifth causes of action asserted against it is granted, and the fourth and fifth causes of action are hereby severed and dismissed; and it is further
ORDERED that Joost U.S. Inc. serve a copy of this order with notice of entry upon all parties within 20 days of entry.
This constitutes the decision and order of the Court.