My Brother's Keeper: The End of Superseding Intentional Acts

What doesn’t belong and why:

a.       Dancing;

b.      Horseplay;

c.       Red Sox vs. Yankees;

d.      Screaming, then breaking away from bouncers to beat a woman senseless;

e.       A dirty look.

If you chose “D” you’re correct, as it’s the only circumstance which a Connecticut jury did NOT consider notice of an assault.  With the Connecticut Supreme Court’s decision not to render a decision in Wood vs. Club, LLC, 310 Conn. 373 (2013), an intentional criminal act by a third party is no longer a defense to a negligent supervision of premises claim.  While this may change in some future Supreme Court decision, the sole issue raised with a superseding cause special defense at the current time is whether an attack was “foreseeable” in any way.  If the attack is foreseeable under any criteria, the intentional act of the third party is no longer a defense.

Intentional acts of a third party have traditionally been an absolute defense against a claim for unsafe premises and pretty much any other type of neglect.  Indeed, Connecticut’s Dram Shop Act, CGS 30-102, was passed solely to create a remedy which had traditionally been barred by the drinker’s intentional act of drinking.  The erosion of superseding criminal acts as a defense began with Stewart vs. Federated Dept. Stores, wherein the Supreme Court formally adopted Section 442b of the Restatement of Torts, Second. That section allows liability for intentional criminal acts of third parties under limited circumstances where the defendant is aware that a criminal act may occur.  In that case, a woman was attacked and killed in a Bloomingdale’s parking garage.  During trial, it was established that over half the lights were out, both shoppers and Bloomingdale’s employees had been attacked previously, the single security guard also had to cover a loading dock across the street, and the defendant’s own security consultant reported that the lot was dangerous.  The specific criteria laid out in Stewart required that the criminal act be of the same nature as what the defendant had notice of, amongst other criteria, and was incorporated into the standard jury instruction for Liability for Wrongful Acts of Third Parties on the judicial website.  Although quite clearly a deviation from the near total defense of intentional acts, the criteria were arguably rational and restricted to particular circumstances.

Then came Wood vs. Club, LLC, 134 Conn. App. 768 (2012).  In that case, the plaintiff was attending a private birthday party held at the Thirsty Turtle in Stamford.  The private area was opened to the general public later in the evening and three gentlemen came into the room.  They tried to dance with the party guests and the dancing was described as “dancing up,” which one would assume is something like “Twerking,” though somewhat less twerky by all descriptions. The plaintiff, who was not dancing, saw one of the strangers dancing towards a girlfriend and decided to step between them, earning a bottle in the ear for his efforts.  Although the security staff was on the scene in seconds, the bar was found liable.  During trial, the judge rejected the jury instruction on intentional acts and chose instead to give a standard proximate cause instruction.  The jury awarded something in the $300,000 range.  On appeal, the Appellate Court held that the generic proximate cause instruction was sufficient, stating that it was a premises liability case.  Notably, the Appellate Court in Wood also held that a part-time bouncer was a security expert, that a note that the plaintiff “will return as necessary” supported a future medical claim of $50,000, and that evidence entered after a motion for directed verdict could be used to establish the plaintiff’s case.  After granting certification, briefing, and oral argument, the Supreme Court decided not to decide the case as certification was improvidently granted, thus leaving the Appellate decision alive and healthy.  A video of the oral arguments is available on www.ct.gov.

So where are we now?  While the Supreme Court may providently grant certification on another assault case at some future date, Wood is the final word at this point in time.  There have been a few appellate cases since Wood which comment on superseding cause for intentional acts, but none squarely address the issue.  In Perez vs. Cumba, 138 Conn. App. 351 (2012), the Appellate court held that an instruction that the defendant had to have notice of the knife the assailant was carrying was improperly specific.  In Doe vs. St. Francis Medical Center, 309 Conn. 146 (2013), the Supreme Court held that the defendant could be liable for Dr. Reardon’s molestation of children regardless of whether it had any knowledge of Dr. Reardon’s criminal propensities so long as any combination of facts could establish some level of foreseeability.  Finally, in Mirjavadi v. Vakilzadeh, 310 Conn. 176 (2013), the defendant was held liable for failing to prevent a kidnapping.

From a practical perspective, defending an assault case under the current law is quite difficult. The analysis invariably begins with the fact that an assault occurred.  The first issue is whether there is anything that would raise an eyebrow before the assault occurred.  A dirty look, bad dancing, a complaint to a bartender, or horseplay all qualify.  The analysis is “fact intensive” according to the Doe vs. St. Francis decision and although the act has to be of the same “general nature” as what the defendant is on notice of, the comparative magnitude of the violence to the notice is irrelevant, as is the mechanism.  For example, if the notice is an argument or someone acting aggressively as in the Perez case, the fact that the injury was caused by a stabbing is irrelevant.  Indeed, liability can be established “…even though the defendant had no knowledge of the third party's criminal propensity.”  Doe vs. St. Francis at 181.  As such, if there’s anything that a defendant could, would, or should have done on the basis of some vague aggressive hint, liability is both provable and sustainable.  Arguably, the Doe vs. St. Francis decision puts an affirmative duty on the defendant to seek out circumstances which could result in some greater harm.

While the threshold for proving an assault case is certainly lowered, how does a defendant limit their exposure prospectively?  I have no answer.  Hire more security?  The bar in the Wood case had a dedicated security staff that was on the incident in seconds.  Draft rules for security?  In Wood, the written instruction in the security manual that they be alert for “potential situations” led to questioning as to whether bad dancing was a “potential situation” and an opinion by the plaintiff’s security expert that bad dancing could lead to anything, including sexual assault.  Given that the analysis of the liability is fact driven rather than law driven, each situation is unique and there are no general standards to abide by. It is quite rational to hold a person responsible for the consequences of their own actions as a person certainly has control over what they choose to do. Holding one person responsible for the intentional acts of another is less a question of choice than clairvoyance. Whether it’s a good or bad situation depends solely on which table you’re sitting at in the courtroom. 

For more information or any questions regarding this article, please contact

 Attorney Jan Trendowski at JanTrendowski@TrendowskiLaw.com.