“[Shopping] On a Sunday Afternoon”

This was originally posted on the SGR Blog.

Customer Assaulted in Spontaneous Imbroglio

In a supermarket on a Sunday afternoon, a shopper is hit in the face by a can of food thrown in the course of a sudden dispute between two other customers. Was the store liable to the innocent victim for negligence in failing to thwart the altercation?

Lydia Arroyo claimed that, while shopping at an International Compare Food International store, she was struck in the face by a can thrown by Johan Gonzalez, a customer in the store. The store’s negligence allegedly caused her to sustain serious injuries. International moved for summary judgment dismissing Arroyo’s claims.

A party may move for judgment on the ground that the pleading fails to state a cause of action. The Court’s role in deciding such a motion is to determine whether the complaint stated a valid cause of action on its face. If a cause of action can be spelled out from the four corners of the pleading, a cause of action is stated.

In support of its motion, International proffered the deposition transcripts of Lydia and Perfecto Arroyo, Rafael Goris, and Javier Polanco.

Lydia Arroyo testified that she shopped for groceries at International about two times a month. On the date of the accident, the assailant was walking directly in front of her as she walked into the supermarket. There was no vestibule or lobby to enter the supermarket, which used sliding doors. Arroyo recalled that a person entered the store in front of her and was wearing a beige trench coat. She remembered nothing beyond that moment. She only remembered grabbing for her glasses, not being able to find them, and landing on the floor near the vegetables. Arroyo did not remember how she was injured. She testified that an unknown woman came over to assist her and sent someone in the store for ice for her eye.

Perfecto Arroyo testified that when he arrived at the supermarket, his wife, Lydia, was being escorted to the ambulance with the assistance of Milta Vita Cardona. Perfecto went back into the supermarket to see if the assailant was still in the store and the cashier told him that he was not. Arroyo stated that his wife was bleeding from the right eyebrow, her nose bore the indentation of a can, and her eye was swollen and blood-red.

Rafael Goris, a manager at International, testified that, on the day of the incident, Javier Polanco was the only manager on duty. He stated that the supermarket never had a need for security; the store had never been robbed, and there were no prior violent incidents in the store. According to Goris, incidents involving shoplifting were “very mild, minor” and the store had never called the police for a shoplifting incident nor prosecuted anyone for shoplifting.

Polanco testified that International never employed security guards because it never had a problem in that store.

Q. All right. Now, on the date of the incident, were you present when the incident actually occurred?

A. I was in the front.

Q. You were in the front. And what did you see with regards to the incident?

A. I saw when the guy and the girl were buying, and then some guy came from outside and started hitting the guy; so, then the guy who had been hit grabbed a can that was throwing — throwing it to the other one and that’s how the lady got hit in the eye. She was hit in the face over here (indicating).

Polanco did not know Johan Gonzalez or the assailant. Polanco called the police who made a report and called an ambulance for Arroyo. Polanco asked Arroyo if she was alright and asked her to sit down on a milk crate until the ambulance arrived.

In opposition to International’s motion, the Arroyos proffered the testimony of Goris and Polanco, an affidavit from Lawrence J. Fenelly, and a DVD disc containing surveillance video of the incident.

Fenelly, a security consultant retained by the Arroyos, asserted that:

  1. The security surveillance system wasn’t being observed by anyone therefore it wasn’t an effective deterrent.
  2. No signage was in the store stating CCTV is actively recording patrons.
  3. There were no policies, procedures, or protocols in place to guide the front store manager.
  4. The lack of a written clear and comprehensive policies and procedures is below any accepted standard of security practice for any retail store.
  5. The manager did say they never called the police but rather had minor shoplifting problems which they never reported thereby creating a false sense of security by suppressing the crime statistics and claiming a lack of foreseeability.
  6. Communications for security emergency were non-existent/deficient, including the call to the police and ambulances.
  7. No training of the employees to deal with crime and incidences.

Fenelly attested that upon his inspection of the crime scene and the neighborhood, it was foreseeable that an assault would occur and that International was contributorily negligent in the incident because an assault could have been thwarted if security measures were in force.

The Arroyos’ attorney contended that the testimony about one manager on duty on Sunday and no security guards heightened the potential for the commission of a crime. But, while an attorney’s affirmation could serve as a vehicle to introduce documentary evidence in support of a motion for summary judgment, an opposing attorney’s assertions, unsupported by any factual proof whatsoever, had no probative value, and therefore, failed to raise a triable issue of fact.

In the video, Johan Gonzalez was seen placing his items on the checkout belt at the cash register, located by the store entrance. The unknown assailant walked up behind him and started pummelling him with punches to the back of his head. As Gonzalez turned around, he grabbed two of the food cans on the belt in an attempt to throw them at the assailant, who fled from the store. The video established that the incident was an unforeseeable act of violence. Polanco, the store manager, testified that, although he observed the incident, he had no time to react or to detain the assailant. The store manager testified that he did not know Gonzalez or his assailant. International had no previous incidents of violence or notice of criminal activity.

The Court found that there was no malfeasance on the part of International and it, therefore, could not be held liable. A landowner has the duty to control the conduct of persons present on his premises when he has the opportunity to control or is reasonably aware of the necessity of such control. But here, International had no such opportunity.

The Court found that International met its burden in establishing that it was neither involved nor could it foresee the occurrence of Arroyo’s injury. International submitted evidence that was sufficient to warrant the dismissal of the Arroyos’ complaint.

Comments are closed.