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Denny's Could be Responsible for Drunken Attack: 2nd Cir.

By Betty Wang, JD on September 23, 2013 | Last updated on March 21, 2019

Earlier this month, the Second Circuit ruled that a woman who was attacked by rowdy drunken customers at a Denny's restaurant in New York could bring a negligence claim against the restaurant.

In 2008, Kelly Gray sued the Denny's Corp and the attackers in connection with the late-night incident at a Denny's seeking compensatory, exemplary, and punitive damages. Gray was dining at the restaurant when a group of other visibly drunk patrons began acting rowdy and aggressive.

Gray first complained to the restaurant employees, who made no move to quiet the group, so then she requested those customers to be quiet herself. In turn, they attacked her by striking her in the back of her head, her jaw, her stomach, and various other parts of her body. They then kicked her while she lay on the ground.

The district court, in turn, granted Denny's motion for summary judgment, which the Second Circuit Court of Appeals disagrees with.

Gray, in support of her claim, provided various documents, including police records of violent acts that have occurred in the location in the past and a Denny's training manual for employees which stated that disruptive guests was one of the largest attributors of incidents of violence in the workplace.

The court reviewed the elements of a negligence claim. Citing New York law, in Lombard v. Booz-Allen & Hamilton, Inc., the elements of a negligence claim include:

  • a duty owed to the plaintiff by the defendant
  • breach of that duty; and
  • injury substantially caused by that breach.

On top of these three elements, damages are generally included as well in a basic negligence claim. 

In this case, upon a review based on the elements of duty, breach, and causation, the court concluded that Gray had raised triable issues of fact on each element, precluding summary judgment. They indicated that restaurant owners should take the appropriate measures to protect patrons on the premises from foreseeable criminal acts of third parties.

The court also found that a customer's act of attempting to quiet down the loud group of customers was a reasonably foreseeable consequence stemming from Denny's failure to act on the initial request. Also, according to the opinion, Denny's knew that bar rush customers are traditionally loud and profane and that, in the past, there were definitely at least a few incidents where things had gotten so disruptive that the police had to be dispatched.

Gray, in turn, had raised a triable issue of fact as to whether Denny's had breached their duty by failing to act on her request to quiet the patrons. The failure which, in turn, resulted in Gray approaching the table herself, leading to her injury.

The court also disagreed with Denny's argument that Gray's action absolved the restaurant of premises liability, and decided this question should be one for a jury. The Second Circuit vacated the district court's award of summary judgment, and remanded the case for further proceedings.

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