In Fauntleroy v. EMM Group Holdings LLC, the First Department held that plaintiff presented enough evidence to overcome summary judgment on his claims for personal injuries arising from a fight with a security guard hired by one of the defendants.
The appellate court unanimously reversed the lower court’s order granting summary judgment to defendants, explaining:
Defendants’ motions for summary judgment should have been denied in this action alleging that plaintiff sustained personal injuries in an altercation with defendant Hill, a security guard employed by defendant All Season, at a nightclub operated by defendant Sutol. Hill’s self-defense claim was not established as a matter of law. Issues of fact are presented regarding whether Hill was justified in punching plaintiff in the face in view of what occurred immediately preceding the punch, and as to whether Hill’s response was excessive. The rule that “[d]etached reflection cannot be demanded” does not preclude a possible finding that Hill’s conduct was unjustified or excessive. An employer may be vicariously liable for its employees’ negligent or intentional tortious conduct, so long as the employees’ acts were committed in furtherance of the employer’s business. When businesses hire security guards or bouncers to maintain order, the physical force used by those bouncers may be within the scope of their employment. Here, plaintiff’s claims against Sutol and All Season based on respondeat superior should not have been dismissed at this juncture, as the evidence shows that Hill was acting within the scope of his employment when he punched plaintiff. Sutol’s contract with All Season does not necessarily protect it against liability. … [T]he deposition testimony that the nightclub’s managers exerted “full control” over the security guards creates an issue that must await trial, regarding whether Sutol exercised the requisite degree of control over the security guards to be liable for Hill’s actions. (Emphasis added, citations omitted.)
In reaching this conclusion, the court distinguished this case from Vargas v. Beer Garden, Inc., 15 AD3d 277, 278 (App. Div. 1st Dept 2005), where the “claim against the nightclub for an assault by a security guard was dismissed at the close of evidence at trial, on the ground that the evidence failed to establish that the nightclub exercised sufficient control over the security guards on its premises to render it their special employer.”