Action for Premises Liability Against Business for Sexual Assault

§5:47 Action for Premises Liability Against Business for Sexual Assault SAMPLE ALLEGATIONS 1. At all times herein mentioned, defendants MR. JONNY’S CORPORATION and DOES 21 through 40, inclusive, and each of them, owned, leased, possessed, maintained, operated, supervised and controlled those certain premises, structures and appurtenances located at MR. JONNY’S RESTAURANT in the City of Schulyer, County of Curtis, State of California, known and described collectively as the Restaurant whereon said defendants, and each of them, did engage in operating, maintaining and selling goods and food to the general public. 2. At all times herein mentioned, defendants DOES 61 through 65, inclusive, were persons of violent, vicious, sexually deviant, suspicious and dangerous character and disposition. At all times herein mentioned, defendants, and each of them, knew the presence of DOES 61 through 65, inclusive, were in or about the premises and knew, or in the exercise of reasonable care should have known, that the presence of DOES 61 through 65 on the premises of said MR. JONNY’S RESTAURANT created a foreseeable risk of injury to plaintiff and would constitute a danger and hazard to patrons of said MR. JONNY’S RESTAURANT, but carelessly and negligently failed to take reasonable precautions to prevent an assault by said persons on plaintiff. 3. On or about August 22, 200_, in Schuyler, California, defendants above-named, and each of them, so carelessly and negligently owned, leased, possessed, maintained, operated, supervised, controlled, guarded, secured and constructed said premises in such a way to create a foreseeable risk of injury to the patrons, including plaintiff. Among other things, said defendants, and each of them, negligently and carelessly and in conscious disregard of the rights and safety of plaintiff failed to secure the premises, and failed to take adequate and sufficient measures to prevent, control or deter harmful, injurious, violent and/or dangerous acts by third persons towards patrons on said premises. As a direct and legal result of said negligence and carelessness, and in particular by reason of the lack of such security, control and/or deterrence, DOES 61 through 65, inclusive, and each of them, were able to and did sexually assault and assault and batter plaintiff, thereby inflicting serious and permanent damages. 4. As a direct and legal consequence of the foregoing, plaintiff was injured in her health, strength and activity, sustaining injury to her body and shock and injury to her nervous system and person, all of which injuries have caused and continue to cause plaintiff great mental, physical and nervous pain and suffering. Plaintiff is informed and believes, and thereon alleges, that said injuries will result in some permanent disability to plaintiff. By reason of the foregoing, plaintiff has sustained general damages in a sum that is greater than the jurisdictional minimum of this Court. 5. As a further direct and legal result of the foregoing, and of the injuries caused thereby to plaintiff, as aforesaid, plaintiff was required to and did employ physicians, surgeons, hospitals, and various other health care practitioners to examine, care for and treat her, and did thereby necessarily incur medical and incidental expense. Plaintiff is informed and believes, and thereon alleges, that she will continue to incur medical and incidental expense. Plaintiff is informed and believes, and thereon alleges, that she will continue to incur such expenses for an indefinite period of time in the future. The exact amount of such medical and incidental expenses is unknown to plaintiff at this time. Plaintiff will ask leave to amend this Complaint to set forth the exact amount thereof when the same has been ascertained or upon proof thereof at trial. 6. As a further direct and legal result of the foregoing, and of the injuries caused thereby to plaintiff, as aforesaid, plaintiff has sustained injury and damage to her earnings and earning capacity, and plaintiff is informed and believes, and thereon alleges, that she will continue to sustain such damage in the future, all to her further damage in an amount presently unknown. Plaintiff will pray leave to amend this Complaint to insert the amount of said damages when the same have been ascertained or upon proof thereof at trial. 7. Plaintiff is informed and believes that defendants MR. JONNY’S RESTAURANT CORPORATION, AND MR. JONNY’S RESTAURANT knew of the foreseeable risk of harm of violent assault to its patrons on or before August 22, 200_. 8. Despite this knowledge, said defendants failed to adequately secure said MR. JONNY’S RESTAURANT from violent attack of patrons and instead utilized all or most of its security measures to increase its profits and revenue by making sure that patrons and employees did not steal from said MR. JONNY’S RESTAURANT while ignoring the safety of patrons. The security decisions were made at the highest level of MR. JONNY’S RESTAURANT CORPORATION management and/or were so ratified. 9. Since this subject incident, the MR. JONNY’S RESTAURANT defendants have taken no steps to increase security of the premises by taking appropriate action after learning of this assault, such as locking the rear doors of the store from people entering from the outside; increasing the security cameras to cover the entire restaurant; hiring security guards so it would not have to rely on the security patrol provided by the Restaurant; locking the women’s restroom and requiring someone to have a key to utilize the restroom; putting up a sign that the restroom was for customers’ use only and other such measures. 10. In addition, plaintiff is informed and believes that MR. JONNY’S RESTAURANT did not in any way discipline the employees and/or managers who had actual knowledge of the threat to plaintiff’s safety and failed to take adequate steps to protect plaintiff; thus ratifying this conduct. 11. In addition, defendants MR. JONNY’S RESTAURANT CORPORATION and MR. JONNY’S RESTAURANT intentionally destroyed evidence by cleaning the crime scene before it could be secured by the police for the purpose of increasing defendants’ chances to prevail in a civil suit in which MR. JONNY’S RESTAURANT would be named as a defendant and/or MR. JONNY’S RESTAURANT acted in conscious disregard of the safety of patrons and evidenced its conscious disregard for the safety of plaintiff by ignoring a half naked assaulted woman lying on the floor of its bathroom while making sure that the bathroom was clean so as to not deter patrons from returning to MR. JONNY’S RESTAURANT. 12. MR. JONNY’S RESTAURANT CORPORATION and MR. JONNY’S RESTAURANT actions in this regard were despicable, and done willfully and with a conscious disregard of plaintiff’s rights, with the intent to cause injury to plaintiff. 13. Wherefore, plaintiff seeks exemplary damages against MR. JONNY’S RESTAURANT CORPORATION and MR. JONNY’S RESTAURANT in an amount according to proof at the trial of this action. COMMENT This is a sample of a pleading in a case in which negligent security by a business-owner allegedly led to the sexual assault of patron. Depending upon the jurisdiction, it is generally difficult to hold a business-owner responsible for the intentional acts of a third party who is not an agent. This cause of action represents an effort to hold a business responsible for a very severe sexual assault that occurred on its premises that resulted in plaintiff suffering a post-traumatic stress disorder. Paragraphs 2 and 3 emphasize the foreseeability of the misconduct of the third party assailant. Paragraphs 6 through 12 plead allegations that will hopefully lead to a punitive damage award. The emphasis in these paragraphs is on the business’s desire to make a profit versus its need to protect patrons. Paragraph 10 alleges deliberate conduct on the part of the business to destroy evidence to protect itself from civil liability. This allegation is aimed at spiking a potential compensatory damage award and potentially leading to a punitive damage award.