Defendants Denied Summary Judgment in Personal Injury Case Arising From Fight at Church Fair

In Bisignano v. Raabe (App. Div. 2nd Dept. May 13, 2015) – a personal injury case arising from injuries sustained by the infant plaintiff who was punched and kicked by two teenage boys while attending a fair at St. Rose of Lima Church – the court reversed summary judgment for defendants.

Here is the law applicable to this scenario:

While landowners in general have a duty to act in a reasonable manner to prevent harm to those on their property, an owner’s duty to control the conduct of persons on its premises arises only when it has the opportunity to control such persons and is reasonably aware of the need for such control. Thus, the owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults

While “the church defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence which demonstrated that the infant plaintiff’s injuries resulted from an unexpected and unforeseeable assault …, in opposition, the plaintiffs raised a triable issue of fact as to whether the assault of the infant plaintiff was unexpected and unforeseeable.”

The court explained:

The plaintiffs presented a transcript of the deposition testimony of the infant plaintiff’s girlfriend, who explained that, approximately 30 minutes before the subject incident, she spoke to a security guard at the fair and advised him that there was a “confrontation” and that it was “getting worse.” Specifically, she stated to the security guard, “[t]here is a fight over here. It’s not a fight yet. It might be a fight. It’s escalating. You need to try to stop this and break everyone up.” In addition, the infant plaintiff’s girlfriend testified that she told the security guard that she and her friends could not leave the fair due to the presence of other teenagers. According to the infant plaintiff’s girlfriend, the security guard responded that “it was like a fight in the sandbox and that it would work its way through and let it run its course.” This evidence was sufficient to raise a triable issue of fact as to whether the assault of the infant plaintiff was foreseeable, and as to whether the church defendants were aware of the need to take further security measures. While the security guard testified at his deposition that the infant plaintiff’s girlfriend had only asked him to throw another individual out of the fair because she received an offensive text message from that individual, this testimony simply presents a question of credibility which may not be resolved on a motion for summary judgment. (Emphasis added.)

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