Appellate Division Reverses Denial of Motion for Summary Judgment in Wrongful Death Case

In a high exposure wrongful death case involving the fatal shooting of an off-duty NYC police officer, Partners Daniel Stewart and Nancy Lewis successfully argued to the Appellate Division, First Department that our client was entitled to summary judgment and that Plaintiff’s Complaint must be dismissed. The case arose out of an early-morning altercation in the parking lot of a restaurant where our clients provided, through a third-party security company, an interactive, remote video surveillance security system.   Before the shooting, the decedent off-duty police officer had been at a bar across the street from the restaurant, and was legally intoxicated when he entered the restaurant. He got into a brief fight with several other patrons.  In the aftermath of the fight, the off-duty police officer exited the restaurant with his duty revolver, mistook a young man in the parking lot as one of his assailants, tackled him to the ground and aimed his loaded service revolver at his head. When the NYPD police officers arrived at the scene, they ordered the decedent to drop his weapon and, when he failed to do so, they fatally shot him.

The Appellate Division held that the officer’s death was not a foreseeable result of any lapse in its security procedures and agreed with our argument that it was completely speculative to assume that any different or additional security measures could have prevented either the decedent’s subsequent actions in the parking lot once he left the restaurant, or the police shooting which occurred thereafter.  Indeed, the court accepted our position that the subsequent independent acts of the decedent and the police were so extraordinary, unforeseeable and unpreventable in the normal course of events, that even assuming some security failure on the part of our clients, that failure was not a proximate cause of decedent’s injuries and death.

The decision was the subject of an article that appeared on the cover of the New York Law Journal and several other legal publications, and has been widely cited for the proposition that a premises owner/operator is not the insurer of the safety of its patron’s but rather, owes only a duty to provide reasonable safety measures to protect against the threat of foreseeable harm.

Partner Nancy Lewis wrote the briefs and Managing Partner Daniel Stewart argued the appeal before a panel of Appellate judges in the First Department.

A copy of the decision can be found here: