Practice point: Plaintiff seeks recovery for personal injuries allegedly sustained when, after being caught shoplifting, he was assaulted by a security
guard. Plaintiff claimed 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.
The Appellate affirmed the motion court's dismissal of the complaint, as there is no indication that the alleged assault
by the security guard, who had no history of violence, was foreseeable. Therefore, the employer's duty to protect was not triggered.
Student note: Absent a duty and an opportunity to protect, there can be no liability for negligence.
Case: Randolph v. Rite Aid of N.Y., Inc., NY Slip Op 07307 (1st Dept. 2014)
Monday's issue: Evidentiary materials submitted on a motion to dismiss, and dismissal on the merits.
