In any lawsuit alleging negligence, an important element of the claim is to show that the defendant did or should have reasonably foreseen the harm that resulted from their conduct. If the harm wasn’t foreseeable, then the defendant cannot be liable for damages. A question that arose in a recent New York case was who decides foreseeability. Is it the judge deciding as a matter of law before trial or the jury hearing the case? The decision could potentially put business owners at more risk of liability as occurred in this case.
In Crandall v. Equinox Holdings Inc., the plaintiff alleged that he was sexually assaulted in the men’s steam room at an Equinox facility on Greenwich Street in Manhattan by another gym member. During discovery, it was determined that there were at least thirteen other similar incidents at the Greenwich Street location over a six-year period, one of which occurred a little more than a month before the plaintiff’s incident.
After discovery, the defendants moved for summary judgment. The lower court granted summary judgment and dismissed the claim finding that the plaintiff’s negligence claim was not “foreseeable because there was no evidence that defendants had reason to suspect that the purported assailant would commit the acts alleged.” Further, the defendants did not have the ability or opportunity to control the assailant’s conduct through “the exercise of reasonable measures.”
On appeal, it appears that the plaintiff sought only to reinstate its negligence claim, asserting that the court below should not have dismissed the same on a summary judgment motion because the issue of foreseeability is a factual determination that must be made by the jury.
The New York Appellate Division, First Department, modified the decision of the lower court. holding that foreseeability issues cannot be decided as a matter of law except in very rare instances which did not exist here. The Appellate Division found that the lower court’s position that the attack was not foreseeable notwithstanding the many other incidents that occurred in the steam room uncovered during discovery was erroneous. In reinstating the negligence claim, the Court clarified that New York courts have “never required prior incidents to have been committed by the same assailant or even be of the same type of conduct to which plaintiff was subjected.”
In addition, the court record was devoid of any evidence demonstrating that the training and practices claimed to have been instituted by Equinox were ever implemented or that Equinox’s self-proclaimed “zero tolerance policy” was ever enforced. As such, the Appellate Division reinstated the plaintiff’s negligence claims against Equinox, finding that the Court cannot say as a matter of law that another gym member allegedly assaulting the plaintiff, especially in light of the multiple complaints of inappropriate sexual conduct inside the steam room at the location where plaintiff was a member was “extraordinary under the circumstances or not foreseeable in the normal course of events”.
Importantly, the Court did uphold the lower court’s dismissal of the plaintiff’s negligent hiring, training and supervision claims against Equinox and his claims against two individual Equinox employees, neither of whom worked at the location where the alleged assault took place, nor were present when it occurred.
The key point of the case is that “foreseeability” is an issue for the jury and generally cannot be resolved in a motion for summary judgment.
Although this case relates to a health club, all businesses should take proper precautions when faced with claims of improper conduct so as to avoid liability for “foreseeable” repeat offenses.
Please contact one of our business litigation attorneys if you are facing a possible negligence claim.