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Restaurant not liable for consultant's punch to nasty customer.

Villongco v Tompkins Sq. Bagels

Defendant Bershadsky did not disclose any orders of protection against him and was unaware of whether Pugliese performed any background check of him.

A bagel store hired a retired fireman as a consultant. Plaintiff, a customer, said a very nasty word to a waitress and pushed her. The waitress immediately told the consultant what the customer said and did. The consultant followed the customer across the street, where there was a verbal confrontation, and the consultant punched the customer in the jaw. The Court held that the bagel store was not liable for the assault because the consultant was not acting in the scope of his employment or in furtherance of the employer's business.--LNR

In this personal injury action, defendant Tompkins Square Bagels and Sage the Cat, LLC (collectively, "Tompkins Bagels" or the "restaurant") moves for summary judgment dismissing the complaint of the plaintiff Edgar Villongco.

Factual Background

Plaintiff alleges that on July 25, 2013, defendant Nathan Bershadsky ("defendant") struck and injured him as a result of an incident at Tompkins Bagels, and that Tompkins Bagels is liable to plaintiff for negligence and battery pursuant to the theory of respondeat superior and for negligent supervision / hiring.

Specifically, plaintiff testified that he and his colleagues went to Tompkins Bagels and were seated at a table, when a female waitress (Luz Segarra) told them that laptops were not allowed at the table. They began clearing their items, and the employee began clearing the table. He arose from the table, and as he turned to walk away, he mumbled "what a c--nt". The employee then "yelled ... did you hear what he called me and it was directed towards" the kitchen, to a "gentleman in the back in the food preparation area", to which the gentleman responded, "what did he call you". Plaintiff next observed the defendant "put down whatever he was holding" and "walk from behind the counter towards" plaintiff and exit the restaurant.

Plaintiff exited the restaurant, and defendant Bershadsky yelled from the doorway of the restaurant "why don't you say that to me you little fa--ot," and then quickly crossed the street. Defendant then stated that plaintiff called the female employee a "c--nt," and when plaintiff denied it and turned to leave, defendant Bershadsky struck plaintiff once in his jaw. The incident occurred "50, 60 feet" from Tompkins Bagels' entrance. Defendant then told plaintiff, "you know where to find me" and returned to the doorway of the restaurant where he and other employees including the waitress were standing.

Defendant Bershadsky testified that he worked as a "consultant" for Tompkins Bagels. He first met one of the restaurant's owners, Christopher Pugliese, at the restaurant as a customer, and he told Pugliese he "had a lot of experience in the bagel business" and offered to provide "constructive criticism"; plaintiff had "approximately eight, nine years in two different bagel stores that were considered very, very busy and very established bagel stores". Thereafter, Pugliese called defendant Bershadsky , stating that he "called a couple of places where you had said you worked and everyone had very nice things to say about you. They knew I was impressed with the way you--your knowledge of the business that you knew the cost and labor costs, and food costs and stuff like that."

Bershadsky also told Pugliese he was a "retired firefighter". Pugliese contacted defendant to discuss "possibly working something out where I could help his employees become better". Due to limits on Bershadsky's ability to work, Pugliese hired defendant Bershadsky in a "consulting aspect" for "two or three hours a day during lunch a couple of times a week." Defendant Bershadsky was "just there to help train people to be better at their job"; to "show them my way of doing platters ... how to make them more decorative". Segurra "had no jurisdiction over me, that's why I told her I was leaving"; Segurra was in charge of employees and defendant Bershadsky "wasn't an employee. Defendant Bershadsky did not disclose any orders of protection against him and was unaware of whether Pugliese performed any background check of him.

On the date of the incident, defendant Bershadsky was teaching a new employee in the kitchen. Defendant Bershadsky told Sergurra that he was "leaving now" and began exiting the kitchen intending to go home; Bershadsky threw his gloves in the garbage and took off his apron, and intended to go downstairs to change his shirt. He told Segurra "it's dead, there's nothing else to show Christian, I'm out of here". He saw defendant approach Segurra, whisper something to her, and then Segarra "fell back into me." Segurra told Bershadsky that plaintiff "called her a fu--ing c-nt; it was my understanding that she had fallen back because he shoved her or shouldered into her". Defendant Bershadsky saw plaintiff "step into Luz' with his shoulder" and she "practically fell into my arms jumping away from him". Defendant Bershadsky then exited the restaurant.

Bershadsky explained that he left the restaurant, and when he saw plaintiff, called out to him, who then started walking back towards defendant. Defendant and plaintiff exchanged words, and as one of plaintiff's two colleagues was pulling plaintiff's arm to attempt to get defendant to leave, plaintiff "kept getting closer and closer and nastier and nastier" with "hand gestures a half an inch of my face." When defendant Bershadsky "felt jeopardized by his infringing on my space, he hit him." According to defendant Bershadsky, plaintiff "put his hand in my face a multitude of times, and cursed me, right in my face. ... He called me a b--ch. He called--he told me to get my f--ing a--back into the kitchen before I got hurt. And then he called me an old bitch. And all the time motioning was his hand into my face inches away. Sixty years old, carpal tunnel, disabled, the guy just hit a woman. I felt what was he going to do to me." Afterwards, defendant returned to the restaurant to retrieve his bag and personal items. When Bershadsky was asked if he considered his confrontation with the plaintiff as part of his job, defendant replied, "No, sir."

Luz Segarra testified, when asked to describe plaintiff, that "he walked like--you know, he had this chip on his shoulder, that he was like a bad ass". Before the incident, she sent defendant on his break but defendant was still in the restaurant. Segurra testified that plaintiff "said, you're a fu--ing c-nt. What did you say? You heard me; you're a fu--ing c-nt". Bershadsky, who was "close" ... "behind the counter" and "on his break," "walks out...." Segarra went outside to see if the area needed to be swept and saw defendant "a block away from the store"; she called to defendant but defendant "kept on". As it was lunchtime, she returned to the restaurant; it was "Business as usual, nothing happened in the store, nobody noticed anything, nothing. Thereafter, defendant returned to the restaurant saying, "I broke his ... jaw;" Segarra then called "Chris" her "boss" and sent defendant home.

Pugliese testified on behalf of Tompkins Bagels that Bershadsky was a consultant, hired to help him train chefs, "run my kitchen in a more organized way, give me advice on, you know, how I could do things better, you know, and that's really it. He was a retired fireman, I think he had some extra time on his hands and just helping me". Pugliese "liked the idea of hiring him because he was a retired fireman. He told me he knew CPR, I thought that would be valuable. I liked the idea that he was older, you know, I made an attempt to hire older people, they have things they can contribute." Pugliese "thought he had been through things as a fighter so I thought he'd be calm and levelheaded, you know, be able to sort of--yeah, I mean, you know, maybe help my staff, you know. I have a lot of kids there and he's a good fellow to pass on some you know, I mean, I definitely liked right away when I found out he was a retired fireman. I thought that was good". Defendant "wasn't an hourly employee so--and he was more, like I said, he was just more kind of helping me, consulting me...." Further, defendant was entitled, like employees, to a free meal during break. When asked if it within Segurra's supervisory capacity to stop defendant from taking a break, Pugliese responded, "Yes." In the course of hiring an employee, Pugliese "would sit down with each employee and explain to them the history of the place, how I expected them to act, what the rules were. Simple rule, like one meal per shift, half hour break, be on time, call if you're going to be out, how to interact with staff members. The only policy we have is verbal, do whatever it takes to make the guest happy and, you know, that's really it. Just hospitality, we hammered that point, we are in hospitality and we are here to make people happy. That's what was said to every employee I hire. There was no specific procedure on how to handle an issue with a customer. If you have an issue with anything, people would always come to me or the manager."

According to Pugliese, he went to the restaurant after receiving a call about the incident and interviewed the employees. When asked if he saw anything out of the ordinary about defendant's demeanor or physical appearance when he returned to the restaurant, he responded "No, I mean, no he is a pretty calm, you know, guy". Defendant and "every person" told Pugliese what happened, and Pugliese "was shocked, this is not what we do, you know. I don't, you know, I never raised my hand at another human being in my life and I wouldn't expect any of my workers to do that. From the time that Bershadsky said he saw or heard plaintiff speaking disrespectfully to Segurra to the time of the punch, Bershadsky was on his break, meaning "Once you take your break, that's your time". Pugliese suspended defendant because he did not want his employees to think that defendant's acts were "okay."

In support of summary judgment, Tompkins Bagels argues that it cannot be held liable for defendant Bershadsky's actions as they were not performed in furtherance of the business of Tompkins Bagels. Further, plaintiff's claim for negligent hiring and supervision against Tompkins Bagels is unsupported by the record.

In opposition, plaintiff argues a jury may conclude that defendant was "doing his master's work" and thus, acting within the scope of his employment, attempting to maintain peace and order in the restaurant, when the altercation and assault occurred. Case law applies respondeat superior even when the employee, through lack of judgment or temper, goes beyond his duty or authority and inflicts injury upon another. Segarra's testimony and defendant's description raises the question of whether defendant's actions and general conduct were reasonably foreseeable to Segurra. Segurra intentionally aroused defendant who was under her control, and never directed defendant to refrain from confronting plaintiff while watching defendant confront plaintiff. That the assault occurred across the street from the restaurant does not absolve Tomkins Bagels from liability, as the confrontation that escalated to the assault began inside the restaurant.

Alternatively, Tomkins Bagels is liable under the theory of negligent supervision and training for acts of defendant outside the scope of employment. Segurra knew that defendant was an angry person with a chip on his shoulder and involved him in a dispute with plaintiff. Further, Tomkins Bagels' training of employees to simply make customers happy, in the absence of any policy on how to handle issues between customers and employees, and failure to properly train Segurra, constitute negligence on its part.

Defendant also argues that Tomkins Bagels lacked adequate hiring procedures or supervision of the premises. Tomkins Bagels did not perform background checks, and did not have a formal application process or formal handbook or behavior policy, formal training, or hiring procedures.

In reply, Tomkins Bagels argues that defendant's actions were in furtherance of a personal interest, rather than one of the restaurant, and the case law cited by plaintiff is distinguishable. Further, there is no evidence regarding defendant's propensity for violence, or Tomkins Bagels' knowledge of same, especially given that defendant's position did not require that he have any interaction with customers. Tomkins Bagels was under no duty to inquire of past convictions.

Discussion

It is well settled that where a defendant is the proponent of a motion for summary judgment, the defendant must establish that the "cause of action ... has no merit" (CPLR [section] 3212[b]) sufficient to warrant the court as a matter of law to direct judgment in its favor (Friedman v BHL Realty Corp., 83 AD3d 510, 922 NYS2d 293 [1st Dept 2011]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853, 487 NYS2d 316 [1985]). Thus, the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, by advancing sufficient "evidentiary proof in admissible form" to demonstrate the absence of any material issues of fact (Madeline D'Anthony Enterprises, Inc. v Sokolowsky, 101 AD3d 606, 957 NYS2d 88 [1st Dept 2012] citing Alvarez v Prospect Hosp., 68 NY2d 320, 501 NE2d 572 [1986] and Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Where the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action (CPLR [section] 3212 [b]; Madeline D'Anthony Enterprises, Inc. v Sokolowsky, 101 AD3d 606, 957 NYS2d 88 [1st Dept 2012]). Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient (Alvord and Swift v Steward M. Muller Constr. Co., 46 NY2d 276, 281-82, 413 NYS2d 309 [1978]; Carroll v Radoniqi, 105 AD3d 493, 963 NYS2d 97 [1st Dept 2013]).

Under the doctrine of respondeat superior, an intentional tort "committed by an employee can result in liability for his or her employer" if the employee was acting "within the scope of the employment" at the time of the commission of the tort (Ramos v Jake Realty Co., 21 AD3d 744,801 NYS2d 566 [1st Dept 2005]). The employer need not have foreseen the precise act or manner of the injury as long as the general type of conduct may have been reasonably expected. However, "an employee's actions are not within the scope of employment unless the purpose in performing such actions is to further the employer's interest, or to carry out duties incumbent upon the employee in furthering the employer's business" (Schilt v New York City Tr. Auth., 304AD2d 189, 759 NYS2d 10 [1st Dept 2003]). The determination of whether the doctrine applies depends upon "The connection between the time, place and occasion for the act; the history of the relationship between employer and employee as spelled out in actual practice; whether the act is one commonly done by such an employee; the extent of departure from normal methods of performance; and whether the specific act was one the employer could reasonably have anticipated."

Yet, "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 (Yeboah v Snapple, Inc., 286AD2d 204, 729 NYS2d 32 [1st Dept 2001]).

Here, defendant Bershadsky's duties were limited to training employees in the kitchen in the back of the restaurant. Defendant's contact with plaintiff did not occur at any time during which defendant was performing any of his duties for Tompkins Bagels. Indeed, defendant had already told Segurra that he was leaving for the day, and Segurra testified that defendant was on break. Furthermore, at the time of the physical confrontation, both plaintiff and defendant were across the street from the restaurant, again, at a time when defendant was "off the clock," which according to Tompkins Bagels, means during a period when defendant was not working. By the time plaintiff made his initial contact with defendant by calling plaintiff across the street, both plaintiff and defendant were off the restaurant premises. Although the plaintiff's insult of Segurra occurred inside the restaurant, no verbal or physical interaction between plaintiff and defendant occurred inside the restaurant.

Further, there was no indication that defendant's interaction with any customer was foreseeable, or could have been anticipated, especially given that defendant's duties did not include any contact with the restaurant's customers (see Conde v Yeshiva University, 16AD3d 185, 792 NYS2d 387 [1st Dept 2005] (dismissing the assault and battery claims brought under the doctrine of respondeat superior where employee acted beyond the scope of his employment, "motivated by private concerns that were not even remotely related to any conduct [employer] could have foreseen in the performance of his duties")). The testimony noted above indicates that defendant was assigned to [sic] solely to train employees in the kitchen or deli to better perform their respective duties, and that he was "in charge of the kitchen ... the deli, whatever went on in the kitchen, he took care of that" and that Segurra would remain in the front". Defendant's position was to "organize" and help "run" the kitchen. And, "kitchen staff does not have much interaction with customers".

Segurra "ran the front" and defendant's training of the employees in the kitchen "had nothing to do with the front end that she ran". Further, student employees also worked in "the front", but they "had nothing to do with [defendant] in the back".

Segurra's outcry of what plaintiff did to her, apparently aimed at defendant in an apparent surprise, does not rise to any level of any inference that Segurra was directing or negligently suggested for defendant to take any action, or, gives rise to an inference that defendant's response was in furtherance of Tompkins Bagel's business. Defendant explained his personal motives for confronting plaintiff, and expressly denied that his pursuit of plaintiff was related in any way to his duties as consultant (Kwak v Wolfenson, 258 AD2d 418, 686 NYS2d 381 [1st Dept 1999] (dismissing complaint where there were "no facts tending to show that alleged assault was within scope of assailant's alleged duties as secretary")).

The cases cited by plaintiff are factually distinguishable from the circumstances herein. (Ramos v Jake Realty Co., 21AD3d 744 supra (defendant's building superintendent assaulted plaintiff during workday at work site specifically to prevent him from collecting evidence of rent strike; there was no evidence that the superintendent had any personal motivation for the assault; superintendent's animus, "shared by management, was about the rent strike"); De Wald v Seidenberg, 297 NY 335, 79 N.E.2d 430 [1948] (fight ensued between building superintendent and plaintiff when superintendent was carrying out a duty to enforce his employers' rules against throwing items out of the window); Sims v Bergamo, 3 NY2d 531 [1957] (where defendant's bartender assaulted plaintiff after having accused her of breaking window of defendant's bar, it may reasonably be inferred that the bartender believed that it was necessary to take steps to prevent plaintiff's further destruction of bar property); Fofana v Chevrolet Saturn of Harlem, Inc., 2008 WL 4961586, 2008 NY Slip Op. 33061(U) [Supreme Court, New York County 2008] (issue of fact existed where employee's manager expressly approved of employee's attack of plaintiff after soliciting plaintiff's customer on plaintiff's car lot); Stewartson v Gristede's Supermarket, 271AD2d 324, 705 NYS2d 583 [1st Dept 2000] (reversing dismissal of complaint where assault against store customer unloading groceries on conveyor belt ensued while defendant's store manager was in the process of filling a phone-in order); Bilias v Gaslight, Inc., 100AD3d 533, 954 NYS2d 88 [1st Dept 2012] (issue of fact existed where defendant bar's employee attacked plaintiff after forcibly escorting plaintiff out of the bar)).

Further, liability cannot be charged to Tomkins Bagels on the ground of negligent hiring and supervision. To establish a cause of action based on negligent hiring, negligent retention, or negligent supervision, it must be shown that the employer knew or should have known of the employee's propensity for the conduct which caused the injury (see Detone v Bullit Courier Serv., Inc., 140 AD2d 278, 279 [1988], Iv denied 73 NY2d 702 [1988]).

In negligent hiring and negligent retention actions, "the negligence of the employer in such a case is direct, not vicarious, and arises from its having placed the employee in a position to cause foreseeable harm, harm which the injured party most probably would have been spared had the employer taken reasonable care in making its decision concerning the hiring and retention of the employee" (White v Hampton Management Co. L.L.C., 35 AD3d 243,827 NYS2d 120 [1st Dept 2006]).

Here, there is no evidence that Tomkins Bagels had any notice of defendant's propensity to commit an assault and/or battery of a customer, and Segurra's testimony that defendant had a "chip on his shoulder" is insufficient to constitute notice in this regard. Similarly, defendant's admission to stealing $20 from the register of a prior job is insufficient to give rise to notice of any criminal propensity to commit violence. Further, there is no indication that a criminal background check would have revealed any proclivity to act violently. "An employer is under no duty to inquire as to whether an employee has been convicted of crimes in the past" (Yeboah v Snapple, Inc., 286AD2d 204,205, 729 NYS2d 32 [1st Dept 2001]). In any event, the record indicates that Tompkins Bagels checked defendant's references, and obtained positive feedback from defendant's former business dealings.

Further, as to the claim that Tomkins Bagels did not have any policies concerning issues between customers and employees, such a vague claim, in the absence of any prior notice of defendant's propensity to commit an assault and/or battery of a customer, is insufficient to raise an issue of fact.

Summary judgment was granted to defendants, dismissing the Complaint.

2016 NY Slip Op 50778(U)

Decided on May 18, 2016

Supreme Court, New York County

Edmead, J.

Edited by Lawrence N. Rogak

Lawrence N. ("Larry") Rogak has been practicing insurance law since 1981. He has defended over 23,000 lawsuits and arbitrations and has represented over 75 different insurance companies and self-insured corporations. Lawrence N. Rogak LLC is listed in Best's Recommended Insurance Attorneys, a distinction that requires written recommendations from at least 12 insurance carriers. A 1981 graduate of Brooklyn Law School, Mr. Rogak has published more books and articles on insurance law than any other New York attorney in the field.
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Title Annotation:COURTSIDE
Author:Rogak, Lawrence
Publication:Insurance Advocate
Date:Jun 13, 2016
Words:3798
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