12-4278-cv
Gray v. Denny’s Corp.


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION ASUMMARY ORDER@). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 5th day of September, two thousand thirteen.

PRESENT: REENA RAGGI,
                 GERARD E. LYNCH,
                 RAYMOND J. LOHIER, JR.,
                                 Circuit Judges.
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KELLY GRAY,
                                 Plaintiff-Appellant,

                         v.                                              No. 12-4278-cv

DENNY’S CORPORATION, DENNY’S INC.,
DENNY’S HOLDINGS, INC.,
                    Defendants-Cross-Claimants-
                    Appellees,

SUZANA GONCALVES, SAMANTHA WINSLOW,
MARISA GONZALES, ANGELINE GUASTELLA,
ROBERT NICHOLSON, MARISA HUSEIN,
                                 Defendants-Cross-
                                 Defendants.*
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APPEARING FOR APPELLANT:                          LEONARD F. LESSER, Simon Lesser PC,
                                                  New York, New York.


*   The Clerk of Court is directed to amend the official caption as shown above.
APPEARING FOR APPELLEES:                   TIMOTHY E. SHANLEY, LeClairRyan,
                                           New York, New York.

       Appeal from a judgment of the United States District Court for the Northern

District of New York (Neal P. McCurn, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on September 27, 2012, is VACATED and

the case is REMANDED.

       Plaintiff Kelly Gray appeals from an award of summary judgment in favor of

defendants Denny’s Corporation, Denny’s Inc., and Denny’s Holdings, Inc. (collectively,

“Denny’s”), on her negligence claims for damages sustained during a late-night

altercation at one of defendants’ Syracuse restaurants. We review an award of summary

judgment de novo, resolving all ambiguities and drawing all inferences in favor of the

nonmovant, and we will affirm only if the record reveals no genuine dispute of material

fact. See Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48

(1986); Nagle v. Marron, 663 F.3d 100, 104–05 (2d Cir. 2011). We assume the parties’

familiarity with the underlying facts and the record of prior proceedings, which we

reference only as necessary to explain our decision to vacate.

       “Under New York law, the elements of a negligence claim are: (i) a duty owed to

the plaintiff by the defendant; (ii) breach of that duty; and (iii) injury substantially caused

by that breach.” Lombard v. Booz-Allen & Hamilton, Inc., 280 F.3d 209, 215 (2d Cir.

2002). On an independent review of the record, we conclude that Gray has raised triable

issues of fact on each element, precluding summary judgment.
1.     Duty

       To survive summary judgment on the issue of duty, Gray had to adduce evidence

suggesting that the criminal assault here at issue was foreseeable to Denny’s. See Lee S.

Kreindler et al., 15 N.Y. Practice Series, N.Y. Law of Torts § 12:38 (2013) (“A restaurant

owner, as a landowner, has a duty to make the premises reasonably safe for persons on

the property. Accordingly, a restaurant owner must take appropriate measures to protect

persons on the premises from foreseeable criminal acts of third persons.”). Evidence of

prior criminal acts sufficiently similar to the instant act can demonstrate foreseeability.

See, e.g., Maysonet v. KFC, Nat’l Mgmt. Co., 906 F.2d 929, 931 (2d Cir. 1990);

Jacqueline S. v. City of New York, 81 N.Y.2d 288, 295, 598 N.Y.S.2d 160, 163 (1993).

       Here, Gray adduced evidence that she was physically assaulted by a group of loud

and profane customers whom she asked to be quiet after Denny’s employees ignored her

requests that they do so. Gray adduced testimonial evidence that the events at issue

occurred during the so called “bar rush” that followed the closing of local bars, a time

when customers coming to Denny’s were frequently loud and profane. See Pl.’s Rule

56.1 Statement ¶ 57(c), (e). Gray further adduced evidence that Denny’s internal policies

recognized profane language as “work place violence.” She also submitted police reports

of work place violence involving actual physical assaults occurring in the year preceding

her assault. Denny’s submits that such records cannot defeat summary judgment because

they are inadmissible hearsay. The argument fails because Gray did not offer the reports

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“for the truth of the matter asserted, but merely to show that the defendant was on notice

of a danger” of customer assaults. George v. Celotex Corp., 914 F.2d 26, 30 (2d Cir.

1990).

         Denny’s argument that the prior assaults were insufficiently similar to the one here

at issue overstates the level of similarity required to raise a triable question of

foreseeability. Whether circumstances attending earlier incidents “are sufficiently similar

to the relevant conditions prevailing at the time plaintiff was injured is to be determined

by the issues presented in each case.” Stevens v. Kirby, 86 A.D.2d 391, 394, 450

N.Y.S.2d 607, 610 (4th Dep’t 1982) (discussing foreseeability); see Williams v. Utica

Coll. of Syracuse Univ., 453 F.3d 112, 118 (2d Cir. 2006) (holding it error to “insist that a

landlord be exposed to a crime that unfolds in precisely the same fashion in order to be

forewarned of danger”). This is not a case in which Gray adduced no, or only one,

instance of customer assault. See Kazanoff v. United States, 945 F.2d 32, 39 (2d Cir.

1991) (holding evidence of one possible burglary before incident at issue insufficient to

demonstrate prior criminal activity); Davis v. City of New York, 183 A.D.2d 683, 683,

584 N.Y.S.2d 64, 64 (1st Dep’t 1992) (holding that defendant had no duty where “[t]here

was no evidence of a pattern of criminal activity or of even one similar incident involving

different patrons”). Nor is it a case in which the prior assaults were so different in type or

degree that no reasonable owner could have foreseen the assault in the instant case. See

Maheshwari v. City of New York, 2 N.Y.3d 288, 294–95, 778 N.Y.S.2d 442, 445–46

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(2004) (contrasting past incidents of disorderly conduct, misdemeanor assault, criminal

mischief, and resisting arrest with “brutal attack” at issue, and holding that such assault

was not foreseeable or “predicatable result” of large crowds). Rather, it is a case in which

Denny’s knew that bar rush customers were frequently loud and profane, viewed such

conduct as work place violence, and knew that on at least five reported occasions, bar

rush customers had become so disruptive that police were dispatched to the restaurant. At

least two of those incidents involved physical violence.

       Moreover, Gray points to evidence that Denny’s itself believed that boisterous

customers presented a danger of violence to which its employees needed to respond in

order to provide a safe environment for its workers and customers. For example, Gray

adduced Denny’s training materials on work place violence prevention that characterized

“disruptive” guests as the largest category of “work place violence” incidents, App. 181,

and identified training and staff mangers “to recognize and deal with disruptive guests” as

significant factors in reducing work place violence, id. at 201. Gray also notes that

Denny’s has adopted specific policies that instruct personnel about dealing with

“disruptive guests,” which characterize “loud profanity” as one of the markers of that

category of patron. Id. at 447. Gray further points to internal Power Point presentations

created by Denny’s in 2007 indicating that Denny’s (1) foresaw increases in work place

violence, including assaults between guests during the late night weekend bar rush period;

(2) undertook a cost-benefit analysis comparing the loss of revenue from late-night

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restaurant closures to the costs of lawsuits stemming from work place violence; and

(3) considered both additional work-place violence prevention training for its employees

and hiring security guards.

       We conclude that this showing was sufficient to raise triable disputes of fact as to

foreseeability and duty. See Williams v. Utica Coll. of Syracuse Univ., 453 F.3d at

117–18 (construing New York precedent “to indicate that even a few past incidents

spaced over a few years may, in appropriate circumstances, be enough to allow a

reasonable jury to conclude that the relevant criminal activity was foreseeable”); Nallan

v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 519–20, 429 N.Y.S.2d 606, 613–14 (1980)

(concluding that rational jury could find from history of criminal activity in other parts of

building that criminal incident in the lobby was “significant, foreseeable possibility”);

Stevens v. Kirby, 86 A.D.2d at 394, 450 N.Y.S.2d at 610 (holding that jury could

conclude from “prior incidents involving breaches of the peace . . . that the assault in the

parking lot was a significant foreseeable possibility which defendant had a duty to guard

against”).1

2.     Breach

       “[T]he owner of a public establishment has a duty to act reasonably to control third

persons so as to prevent harm to its patrons.” Ash v. Fern, 295 A.D.2d 869, 870, 744

1
 Because Gray has adduced evidence of past criminal assaults, we need not address Denny’s
arguments that cursing or profanity, by itself, would be insufficient to put Denny’s on notice
of possible physical assault.

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N.Y.S.2d 559, 560 (3d Dep’t 2002) (internal quotation marks omitted). Gray contends

that Denny’s breached this duty by not interceding to halt her future assailants’ loud and

profane conduct as required by its own Policy and Procedure Manual, and by failing to

create and implement a Workplace Violence Management Program for its employees. In

support, Gray submitted evidence that customers, including her future assailants at Tables

5 and 6, were loud and profane; that Denny’s policy manual requires managers to ask

disruptive guests to act properly and, if necessary, to leave the restaurant; and that Gray

asked her server to tell the rowdy customers to quiet down, but that neither her server nor

any other Denny’s employee took any action. Crediting this account, as we must on

review of a summary judgment award, we conclude that Gray has raised a triable issue of

fact as to whether Denny’s breached its duty by failing to quiet the customers at Tables 5

and 6, which failure resulted in Gray’s approaching the table herself. We do not suggest

that, as a matter of law, restaurant staff have a duty to take action whenever one patron

complains that another is behaving rudely or boisterously, and that the failure to take

action to quiet or expel diners that others find loud or offensive breaches the duty to

provide a safe environment for guests. We hold only that, on this record, a reasonable

juror could find that Denny’s was aware of particular risks caused by disruptive

customers, and failed to take action to reduce those risks.

3.     Causation

       Denny’s argues, and the district court found, that even if Denny’s breached its

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duty, Gray’s own conduct constituted an intervening act that breaks the chain of causation

and absolves Denny’s of liability. See Appellees’ Br. 21 (arguing that “it is clear from

the evidence the incident does not happen unless [Gray] confronts the customers at tables

5 and 6”). We do not agree.

      Under New York law, “where the plaintiff’s intervening actions are not a normal

and foreseeable consequence of the defendant’s conduct, the plaintiff’s conduct becomes

a superseding cause which absolves the defendant of liability.” Caraballo v. United

States, 830 F.2d 19, 22 (2d Cir. 1987). “An intervening act will be deemed a superseding

cause and will serve to relieve defendant of liability when the act is of such an

extraordinary nature or so attenuates defendant’s negligence from the ultimate injury that

responsibility for the injury may not be reasonably attributed to the defendant.” Kush v.

City of Buffalo, 59 N.Y.2d 26, 33, 462 N.Y.S.2d 831, 835 (1983); see Henry-Lee v. City

of New York, 746 F. Supp. 2d 546, 571 (S.D.N.Y. 2010) (stating that plaintiff’s own

conduct will constitute intervening cause when it “demonstrate[s] a lack of reasonable

regard for his own safety” (internal quotation marks omitted)).

      Here, we cannot conclude as a matter of law that Gray’s actions in asking a group

of fellow customers to quiet down was not a normal and foreseeable consequence of

Denny’s failure to act on her request that an employee do so. Indeed, if Gray’s version of

events is credited, then her conduct evokes the precise risk contemplated by the scope of

Denny’s duty of care. See Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308, 315,

                                            8
434 N.Y.S.2d 166, 169 (1980) (“An intervening act may not serve as a superseding cause,

and relieve an actor of responsibility, where the risk of the intervening act occurring is the

very same risk which renders the actor negligent.”); see also McKinnon v. Bell Sec., 268

A.D.2d 220, 221, 700 N.Y.S.2d 469, 471 (1st Dep’t 2000) (holding it not unforeseeable

as matter of law that plaintiff would approach suspect after security guard inexplicably

released him). Thus, a fact question arises as to whether Gray’s conduct is an intervening

act that breaks the chain of causation.

       We do not predict how a factfinder will resolve this and the other factual disputes

between the parties. We conclude only that Gray has presented enough evidence to

preclude awarding judgment to defendants as a matter of law.               Accordingly, we

VACATE the district court’s award of summary judgment and REMAND the case for

further proceedings consistent with this order.

                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court




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