Randolph v. Rite Aid of N.Y., Inc. (decided Oct. 28, 2014) provides yet another reason not to attempt shoplifting: baseball bat-yielding security guards. In this case, the Appellate Division, First Department affirms the dismissal of plaintiff’s case against Rite Aid:
In this action seeking recovery for personal injuries, plaintiff alleges that on October 13, 2004, after being caught shoplifting at one of defendant’s stores in Manhattan, he was assaulted by a security guard. Plaintiff’s first cause of action, the only one at issue on appeal, asserts that defendant’s employees were directly negligent in failing to protect him from the security guard, who was armed with a baseball bat, and that defendant is vicariously liable for its employees’ negligence. There is no indication that the alleged assault by the security guard, who had no history of violence, was foreseeable. Accordingly, the duty to protect was not triggered. Absent an opportunity and duty to protect, there can be no liability for negligence.