Industry News
Guard Head-Butts Patron
Facts: Alexander Von-Ary went to a nightclub and spent several hours drinking and dancing before the bartender presented him with a tab for over $1,000. Von-Ary took issue with the amount of the tab. The club owner approached Von-Ary and suggested they discuss the issue in his office. Two security guards employed by an independent contractor hired to provide security for the club accompanied the men to the club owner’s office. Von-Ary alleged that inside the office one guard restrained him, while the second head-butted him. The club owner did not speak to or instruct the guards to do so and there was no evidence that the club owner had any interaction with the guard until after the scuffle. Von-Ary sued the club owner, the club’s security service provider and the security guard who head-butted him. The club owner and the security service provider both filed motions for summary judgment arguing that they should not be held liable for the guard’s misconduct.
Decision: The district court reviewed the contract between the club owner and the security service and noted that it was a garden-variety independent contractor employer/employee relationship. Under state law, an employer is not liable for the misconduct of an independent contractor or its employees unless the employer assumes control over the contractor’s duties. Here, the evidence established that the club owner did not have any input on the hiring, firing, or training and assignment of the guards. The only decision he made was with regard to the uniforms worn while on duty. Accordingly, Von-Ary was not entitled to recover damages from the club owner and the court granted the motion for summary judgment. Alternatively, the security company that hired and trained the offending guard could not claim the same immunity. An employer can be held liable for the misconduct of an employee who is acting within the scope of his employment at the time of the incident. Here, the court found that there was a question of fact as to whether the guard was authorized to use some amount of force in the course of his employment and whether he was acting in the interest of his employer when he head-butted Von-Ary. The court denied the security company’s motion for summary judgment. Von-Ary v. Cain L.L.C., No. 05-0991. U.S. District Court for the Southern District of New York June 26, 2009. Source: Security Law Newsletter, published monthly by Strafford Publications, Atlanta, GA. www.straffordpub.com, phone: 800-926-7926 ext. 10 or email: custserv@straffordpub.com.