     12-802
     Phillip v. Amnesia

                          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 “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 26th day of March, two thousand thirteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                ROSEMARY S. POOLER,
 9                              Circuit Judge.
10                ERIC N. VITALIANO,
11                              District Judge.*
12
13       - - - - - - - - - - - - - - - - - - - -X
14       JESSIE PHILLIP,
15                Plaintiff-Appellee,
16
17                    -v.-                                                     12-802
18
19       UNITED FORCE SECURITY CORP.,
20                Defendant-Cross Defendant,
21
22                    and
23


                *
               The Honorable Eric N. Vitaliano, District Judge of
         the United States District Court for the Eastern District of
         New York, sitting by designation.
                                                  1
 1   AMNESIA JV LLC, DBA AMNESIA NYC,
 2            Defendant-Cross Claimant-
 3            Appellant.
 4
 5   - - - - - - - - - - - - - - - - - - - -X
 6
 7   FOR APPELLANT:             NICHOLAS HURZELER, Lewis
 8                              Brisbois Bisgaard & Smith LLP,
 9                              New York, New York.
10
11   FOR APPELLEE:              EDWARD SIVIN, Sivin & Miller,
12                              LLP, New York, New York.
13
14        Appeal from a judgment of the United States District
15   Court for the Southern District of New York (Cedarbaum, J.).
16
17        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
18   AND DECREED that the judgment of the district court be
19   AFFIRMED.
20
21        Amnesia JV LLC (“Amnesia”), which operates a nightclub
22   in midtown Manhattan, appeals from a judgment entered in the
23   United States District Court for the Southern District of
24   New York (Cedarbaum, J.). The jury found that Amnesia
25   breached its duty to maintain a reasonably safe environment
26   for its customers, and awarded Plaintiff-Appellee Jessie
27   Phillip $300,000 after he was brutally beaten by a group of
28   unidentified individuals at the nightclub. We assume the
29   parties’ familiarity with the underlying facts, the
30   procedural history, and the issues presented for review.
31
32        Amnesia first appeals the district court’s refusal to
33   deliver a comparative fault jury instruction pursuant to
34   N.Y.C.P.L.R. § 1601, which provides that a defendant found
35   to be fifty percent or less at fault may apportion its
36   liability for non-economic damages among other tortfeasors--
37   a provision “intended to remedy the inequities created by
38   joint and several liability on low-fault, ‘deep pocket’
39   defendants.” Rangolan v. Cnty. of Nassau, 96 N.Y.2d 42, 46,
40   749 N.E.2d 178, 182 (2001). Amnesia argues that the
41   district court should have instructed the jury to apportion
42   liability between Amnesia and United Force Security Corp.
43   (“United Force”), with which Amnesia contracted to provide
44   security at the nightclub.

                                  2
 1        The evidence did not support such a charge. United
 2   Force defaulted, and was dropped from the case. As a
 3   result, there was no evidence introduced at trial concerning
 4   the actions of United Force employees, and thus no evidence
 5   upon which a jury could base a comparative fault
 6   determination. In any event, Amnesia’s non-delegable duty
 7   to maintain a reasonably safe environment is unaffected by §
 8   1601. See N.Y.C.P.L.R. § 1602(2)(iv) (stating that Article
 9   16 shall “not be construed to impair, alter, limit, modify,
10   enlarge, abrogate or restrict any liability arising by
11   reason of a non-delegable duty or by reason of the doctrine
12   of respondeat superior”); see also Rangolan, 749 N.E.2d at
13   47 (holding that a defendant that hires an independent
14   contractor to carry out a non-delegable duty “remains
15   vicariously liable for the contractor’s negligence, and
16   cannot rely on CPLR 1601(1) to apportion liability between
17   itself and its contractor”).
18
19        Amnesia also appeals the denial of its motion for a
20   directed verdict, arguing that no rational juror could find
21   that it breached its duty of care and that this alleged
22   breach was a proximate and foreseeable cause of Phillip’s
23   injuries.
24
25        Taking the latter issue first, New York requires an
26   owner of real property to maintain its premises “in a
27   reasonably safe condition in view of all the circumstances,
28   including the likelihood of injury to others, the
29   seriousness of the injury, and the burden of avoiding the
30   risk.” Basso v. Miller, 40 N.Y.2d 233, 241 (1976) (internal
31   quotations and citations omitted). “[L]andlords and
32   permittees have a common-law duty to minimize foreseeable
33   dangers on their property, including the criminal acts of
34   third parties.” Maheshwari v. City of N.Y., 2 N.Y.3d 288,
35   294, 810 N.E.2d 894, 897 (2004).
36
37        The risk of assault by one patron or another is
38   foreseeable in the operation of a crowded nightclub--as
39   evidenced by Amnesia’s decision to deploy approximately
40   eighteen security guards each night. SA 142. While Amnesia
41   might not have foreseen “the exact manner in which the
42   disturbance was precipitated and concluded,” it could
43   reasonably anticipate that a disturbance might occur. Rotz
44   v. City of New York, 143 A.D.2d 301, 305, 532 N.Y.S.2d 245

                                  3
 1   (1st Dep’t 1988); id. at 305-06 (“That defendant could not
 2   anticipate the precise manner of the accident or the exact
 3   extent of injuries . . . does not preclude liability as a
 4   matter of law where the general risk and character of
 5   injuries are foreseeable.”) (internal quotations and
 6   citations omitted).
 7
 8        Amnesia contends that it fulfilled its duty to maintain
 9   a reasonably safe environment; however, Phillip put forth
10   considerable evidence to the contrary. By all accounts, the
11   beating lasted for at least several minutes, and was
12   precipitated by a physical confrontation between Phillip’s
13   cousin and another patron. The women with Phillip testified
14   that they were screaming for help, yet no security guards or
15   nightclub employees offered any assistance. The beating
16   stopped only when the assailants grew tired. Certainly,
17   this testimony suffices to create a triable issue of fact.
18   Cf. Jayes v. Storms, 12 A.D.3d 1090, 1091, 784 N.Y.S.2d 471
19   (4th Dep’t 2004) (where patron was injured in a restaurant
20   bar, there were “issues of fact with respect to ‘the length
21   and intensity of the altercation before plaintiff sustained
22   [his] injury . . . and the reasonableness of defendant’s
23   response thereto”) (internal citations omitted); Dollar v.
24   O’Hearn, 248 A.D.2d 886, 887, 679 N.Y.S.2d 230 (3d Dep’t
25   1998) (“Plaintiff’s uncontroverted assertions that many of
26   the guests were loud, boisterous and rowdy . . . are
27   sufficient to raise questions of fact as to whether
28   defendants should have been aware . . . that a potentially
29   dangerous situation existed, and if so, whether they
30   breached their duty to exercise adequate supervision and
31   control over their patrons’ behavior.”).
32
33        Finally, the court denied Amnesia’s motion for a
34   mistrial following a remark made during opposing counsel’s
35   opening statement. This Court will vacate a jury verdict
36   due to misconduct where “[counsel] so persistently and
37   continuously abused the freedom afforded [him] that his
38   presentation . . . was based on an appeal to passion and
39   prejudice not warranted by the proof.” Koufakis v. Carvel,
40   425 F.2d 892, 904 (2d Cir. 1970) (citation and quotation
41   marks omitted). This determination turns in part on “the
42   number and gravity of counsel’s improprieties” and will
43   result in vacatur where “admonitions by the trial judge
44   . . . cannot possibly serve to cure all the prejudice.” Id.

                                  4
 1   This Court reviews a lower court’s refusal to grant a
 2   mistrial for abuse of discretion. Santa Maria v. Metro-
 3   North Commuter R.RU., 81 F.3d 265, 273 (2d Cir. 1996).
 4
 5        An interrupted clause in the plaintiff’s opening
 6   statement stated that “Club Amnesia had approximately 30
 7   cameras covering--”, at which point defense counsel objected
 8   and the court sustained the objection. A 97. The court had
 9   earlier ruled that any alleged spoliation of evidence was
10   not to be discussed before the jury, and at sidebar, the
11   court reiterated this point. A 97-99. This clause, without
12   more, does not carry the prejudicial effect that Amnesia
13   attributes to it. In any event, the district court did not
14   abuse its discretion in denying the motion for a mistrial.
15
16        For the foregoing reasons, and finding no merit in
17   Amnesia’s other arguments, we hereby AFFIRM the judgment of
18   the district court.
19
20                              FOR THE COURT:
21                              CATHERINE O’HAGAN WOLFE, CLERK
22
23
24




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