A federal district court in Brooklyn recently held that an employer does not owe a duty to protect patrons from assault unless the attack was "reasonably foreseeable," specifying that businesses would only be put on such notice if similar attacks had occurred on or near the premises in the past. This decision should provide a measure of relief to New York retail operations, but also serves as a warning to take workplace safety concerns seriously (Cort v. Marshalls Department Store).
Background: Brawl At Store Leads To Lawsuit
The case arose from a feud between young women that culminated in a brawl in a Brooklyn department store. When Caroline Cort and her sister entered the Marshalls Department Store during the busy holiday shopping season in December 2013, they first heard a "rowdy" woman yelling foul language on a phone. Later, while shopping, they noticed the same woman was following them.
Cort claims that the woman, a store employee, later "slightly" hit her sister in the head with her sleeve. Cort and her sister moved to the checkout to complain about the employee's threatening behavior, speaking with two different store managers. The managers sent the employee—a woman named Ms. Frazier—to the break room pending further discussion with Cort and her sister. Shortly thereafter, however, Frazier's aunt and sister—apparently prompted by Frazier to act on her behalf—arrived at the store and attacked Cort and her sister. The altercation lasted several minutes, and Cort suffered severe injuries from the attack.
She sued the retailer, Frazier, Frazier's aunt and sister, and other store employees, asserting claims for assault, battery, negligent hiring and retention, and negligent supervision and training. The trial court initially dismissed the case in 2015 but let Cort take one more bite at the apple to amend her complaint; Cort did so, alleging in her amended complaint that the retailer (1) negligently failed to protect her despite knowing that the employee posed a risk to her; (2) was vicariously liable for the alleged negligence of its employees, who failed to prevent the attack; and (3) was negligent in hiring the employee and allowing her to remain on the store premises after the complaint of the employee's threats and harassment.
Court Says Attack Was Not Reasonably Foreseeable
While expressing it was "not unsympathetic" to Cort's position, the court dismissed her complaint in a December 18, 2017 decision. In response to the claim that the retailer negligently failed to protect Cort, the judge found no direct or vicariously liability for the attack against Marshalls because Cort failed to show that the attack was reasonably foreseeable. Consequently, neither the retailer nor its employees had a duty to protect Plaintiff.
Critical to the judge's ruling was the fact that Cort had not shown that anyone had been attacked in the store location or in the immediately surrounding area. Therefore, she was unable to establish that it was foreseeable that store patrons would be violently attacked by third parties. Despite Frazier's threatening conduct immediately preceding the assault, the court found the retailer could not have anticipated the employee would contact her relatives to unleash an attack on Cort.
In response to the claim that Marshalls should be liable because its employees did not call the police quickly enough, the judge held that there could be no "special duty" to Cort absent evidence of prior similar incidents.
Finally, the court found no failure to mitigate the risk of an attack (i.e., by moving Cort to a secure location), although such a preventive measure may have been required by the employee manual. Instead, the court found that even such a violation of internal policies would not establish a duty of care because the retailer had no underlying duty to protect Cort from an unforeseeable act.
What Does This Mean For Retail Employers?
While the court's opinion offers some comfort to retailers that they you not be held liable for preventing incidents that were not reasonably anticipatable, the fact pattern itself—and the judge's expression of sympathy for Cort's plight—serve as a reminder that operations open to the public can play stage for extraordinary events, and you would be well served to take precautions to diminish the likelihood of incidents escalating.
You can, for example, publish practical and clearly written crisis, safety, and incident procedures, and train personnel how to identify when, and how, to implement those procedures. Your personnel should also know how to report an event to managerial or security personnel, and those managers and security personnel should be trained to be on the same page about how to respond to events that are potentially fraught with danger.
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