No toying around
A negligence action against the Kings Plaza Mall was tossed out last week when attorneys proved that the shopping complex “did not owe any duty” to a Kay Bee Toy Store manager injured during a bout of Christmas Eve madness back in 2001.
The manager claimed that mall security did nothing to help her when an unruly customer punched her in the stomach when she refused to let him inside.
In a suit that smacks of “A Christmas Story” – although no one got hurt in the movie – the woman explained that she was in charge of crowd control at the popular toy store during their busiest shopping day of the year when a customer ran up and asked if they had any firetrucks left.
The manager explained to the customer that they hadn’t had any toy firetrucks since September 11, which was just three months earlier.
The customer apparently didn’t believe her and wanted to check for himself, but the manager wouldn’t let him in because “we had a large crowd waiting to enter the store and they had been waiting there for quite some time.”
When she told the customer that he had to wait on line like everyone else, the customer let his inner-Grinch take over and began to yell and curse.
The woman urged the customer to calm down.
Instead, he reeled back and punched her in the stomach, knocking the wind out of her.
In her suit, the woman claimed that neither Kay Bee’s security guard, nor Kings Plaza security guards, who were reportedly standing nearby, did anything to help her.
Two guards ultimately stopped the punchy customer, but then released him. The customer dashed off and was never seen again.
Once the suit was filed, attorneys for Kings Plaza and Vornado Realty filed a motion to dismiss, claiming that the plaintiff did not have a case.
Citing their own handbook, which the plaintiff said that she was aware of, Kings Plaza security is not required to respond inside a tenant’s store. Instead, the “tenant is responsible for security and other related problems in their store.”
The handbook also says that “tenant stores employing their own security personnel shall utilize their security for apprehensions and detentions.”
After mulling over the facts, Justice Arthur M. Schack sided with mall attorneys.
“[Kings Plaza] didn’t launch the fist of the unknown perpetrator and the plaintiff has failed to demonstrate that she detrimentally relied upon the performance of the defendants to provide security,” Schack wrote.
Citing long-established case law, Schack added, “When a criminal act is unforeseeable, such as the assault on the plaintiff in this case, the owner of the premises has no duty to protect persons from attack.”
“Plaintiff has failed to present any evidence to rebut the defendants [contention] that owed no contractual or common law duty to protect plaintiff from her Christmas Eve assault,” Schack wrote as he dismissed the complaint – a move that left the Kay Bee manager with no chance at restitution and a blue Christmas to look forward to later this year.
A judge shot down a woman’s hopes to single out her husband’s shooter at his attempted murder trial, officials said.
Attorneys for Quandel Smothers petitioned the court earlier this month to stop Stofaney Worthy’s testimony about how he shot Worthy’s husband last August.
Smothers was arrested for shooting Mazi Worthy during an altercation that left him with serious injuries.
Stofaney Worthy was reportedly at the scene of the crime and identified Smothers as her husband’s shooter in a photo array that was presented to her at the hospital.
Smothers’ attorneys put the kibosh on the ID by claiming that prosecutors never gave them prior notice that they were going to bring Stofaney Worthy up to the stand.
Prosecutors were hoping that Worthy would identify Smothers as the shooter and explain what happened before the shooting took place.
Citing the law, Smothers’ attorneys said that the DA’s office “must serve upon the defendant a notice of intentions to present a witness who has previously identified him.”
Since they never did so, the ID must be thrown out, his attorneys charged.
Prosecutors said that they gave notice by saying that they were going to present eyewitness testimony, and the only witnesses to the shooting were Stofaney and the victim.
After hearing arguments, Judge Patricia Mango sided with the defense saying that “since the People provided no notice that the prosecution intended to present testimony by Stofaney Worthy of her observations of the defendant as the person who shot her husband and where Mrs. Worthy had identified the defendant from a photo array, the motion to preclude must be granted.”
“[Worthy] will not be permitted to identify the defendant in court as her husband’s shooter,” Judge Mango said.
©2008 Community News Group
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