Column: Starbucks ruling is a warning: Companies can be liable for violence at stores in dodgy areas

Dennys

06/09/2023 23:44

(The opinions expressed here are those of the author, a
columnist for Reuters.)
    By Alison Frankel
       Sept 6 (Reuters) - As U.S. retailers contemplate whether
to keep their doors open in neighborhoods hard hit by crime, a
ruling last week by a New York judge gives them another reason
for concern.
    U.S. District Judge Paul Engelmayer of Manhattan held that
Starbucks  SBUX.O  must face trial on claims that it negligently
failed to prevent a vicious 2019 attack on a customer at its
Union Square café in New York City.
    The judge acknowledged that reports of crime in the Union
Square neighborhood were not sufficient evidence that Starbucks
should have anticipated an attack on one of its customers.
Engelmayer also accepted Starbucks' contention that before the
2019 assault on the plaintiff, Michael Johnson, the Union Square
store had not experienced a similar incident of physical
violence between customers who did not know one another.
    But the judge nevertheless said a jury might reasonably
conclude that Starbucks should have known such an attack might
occur.
    The warning signs, according to Engelmayer, included the
café’s location beneath a second-floor methadone clinic,
previous drug-related skirmishes between visitors to the store,
and several altercations between customers and Starbucks
employees. Some of those employees, the judge noted, even pushed
for additional security measures because they felt unsafe in the
store.
    Engelmayer also cited Starbucks’ company-wide policy of
allowing non-paying customers to use restrooms. It's not known
whether Johnson's assailant — who repeatedly punched and kicked
Johnson after he knocked on the restroom door and then fled the
scene, inflicting lacerations on Johnson's face and legs — was a
paying customer, although he had been asked earlier in the day
to leave the store because he looked "disheveled." Johnson
alleged that after the company adopted the so-called open-door
policy in 2018, the Union Square Starbucks failed to respond to
an influx of homeless people using the store’s bathrooms. The
judge said reasonable jurors might agree that the company’s
open-door policy helped “enable” the physical assault on
Johnson. 
    Engelmayer's decision, which denied Starbucks’ motion for
summary judgment, does not mean that the company will eventually
be held responsible for the attack on Johnson. Starbucks must
now persuade a jury that it could not have predicted the attack.
    Neither Starbucks' counsel Joseph Hanna of Goldberg Segalla,
nor a company spokesperson offered comment in response to my
email query about the Sept. 1 decision and its broader potential
implications for stores in troubled neighborhoods in New York.
Johnson’s lawyer, Michael Kremins of Raskin & Kremins, also did
not respond to a query. 
    State laws vary on when a property owner or lessee can be
held liable for a visitor’s injuries, including injuries
resulting from someone else’s crimes, but broadly require owners
and proprietors to avert foreseeable dangers. In New York, the
state’s highest court has held, in 2004’s Maheshwari v. City of
New York and 2016’s Pink v. Rome Youth Hockey Association Inc,
that public establishments are not required to protect patrons
against unexpected assaults.
    In the Maheshwari case, the Court of Appeals granted summary
judgment to defendants accused of failing to protect a
pamphleteer who was attacked in a parking lot outside of a
Lollapalooza concert. The Pink decision dismissed claims by a
plaintiff who was injured in a fight at a kids’ hockey
tournament. 
    Starbucks argued that the attack on Johnson, like the
assaults in the Maheshwari and Pink cases, was unprecedented.
The company did not dispute that panhandling and petty theft
were a problem at the Union Square store, as were drunk
customers.
    There were also violent incidents: A longtime store manager
and another Starbucks employee testified about occasional
disputes between customers at the Union Square cafe, including
visitors to the methadone clinic who, according to the manager,
would “fight amongst each other for their drugs.” Employees also
described incidents in which patrons shouted at or threatened
them, including one customer who spit at an employee and another
who threw a cup of coffee.
    But those confrontations, Starbucks said, were akin to the
“low-level criminal behavior” that failed to sway the court in
the Maheshwari and Pink cases. The company insisted that Johnson
was the first Union Square customer to have been physically
attacked by a complete stranger, so Starbucks could not be
blamed for failing to anticipate the crime.
    Engelmayer said the more appropriate precedent came from the
2nd U.S. Circuit Court of Appeals, in its unpublished 2013
opinion in Gray v. Denny’s Corp. The federal appeals court ruled
that Denny’s was not entitled to summary judgment against claims
by a customer, Kelly Gray, who was attacked during a visit to a
Syracuse Denny’s restaurant after asking a rowdy group of diners
to quiet down.
    The 2nd Circuit said that because Denny’s was aware of the
potential for violence from late-night customers who patronized
the restaurant after bar-hopping, jurors might reasonably hold
the restaurant liable for the attack on Gray. (Denny's
subsequently settled Gray's case for an undisclosed amount.)
    Like Denny’s, Engelmayer said, Starbucks was on notice from
previous incidents that some Union Square customers posed a
threat of physical violence, even though none of the prior
attacks precisely matched the circumstances in the Johnson
assault.
    Johnson previously demanded a $75,000 settlement from
Starbucks for his physical and psychological injuries, according
to Engelmayer’s opinion. It’s not clear whether he plans to ask
the jury for more.
    Obviously, Starbucks won’t be driven into ruin by this case
alone. And I don’t want to exaggerate the significance of a
decision by a lone trial judge.
    But under Engelmayer’s reasoning, Starbucks could face
liability if an act of violence occurs at any store where
customers get into scraps with employees or each other. And
there’s no reason why the analysis is limited to Starbucks (as
you can see from the Denny’s decision).
    This decision puts public establishments in New York at risk
of liability to assault victims if they haven’t beefed up
security in response to low-level violence.
    For a lot of businesses, that’s a real threat.
    

 (Reporting By Alison Frankel)