Virginia Lawyers Weekly VA Lawyers Weekly
A plaintiff who alleges she was injured while a patron at The Palace, a Norfolk entertainment venue, by a “John Doe” employee of an independent security contractor has stated claims for negligence and vicarious liability in her amended complaint against The Palace, says a Norfolk Circuit Court.
The court finds that plaintiff, by amending her complaint, has sufficiently pleaded a master-servant relationship to support a respondeat superior claim against The Palace. She also has sufficiently pleaded that The Palace knew, or should have known, of a dangerous condition to support a negligence claim against The Palace.
Plaintiff alleges Elite Security Consultants LLC contracted with defendant, The Palace, to provide security and other services to The Palace; that defendant “John Doe” was employed by defendant Elite to perform security duties within The Palace and that defendant Elite and The Palace had the right to control the progress and details of Doe’s work.
Plaintiff alleges Doe “committed multiple batteries” upon her and that she suffered injuries as a direct and proximate result of that attack. Plaintiff alleges that in the minutes prior to the attack, it became foreseeable that physical force was going to be necessary to maintain order in The Palace. She argues The Palace had actual and/or constructive knowledge through its armed security guards and other employees that physical force was going to be necessary to maintain order, and The Palace owed her a duty of care to want and/or protect her against the danger of harm from reasonably foreseeable criminal acts committed by a third person by virtue of a business owner-invitee relationship.
In her amended complaint, plaintiff no longer asks the court to draw such a broad inference but instead directly alleges that Elite and The Palace had the right to control the progress and details of Doe’s work. Although this naked assertion is insufficient to prove by a preponderance of the evidence that a master-servant relationship existed between The Palace and Doe, when ruling on the second demurrer the court must accept the truth of the allegation. The court therefore finds – based on the allegations in the amended complaint – that a master-servant relationship between The Palace and Doe existed. The court overrules the second demurrer as to the vicarious liability count against The Palace.
Plaintiff also has sufficiently pleaded a cause of action against The Palace for negligence. In the amended complaint, she alleges The Palace had actual and/or constructive knowledge through its employed security guards and other employees, that physical force was going to be necessary to maintain order in The Palace on Plume Street. Plaintiff has presented a prima facie case of negligence against The Palace by alleging facts to suggest that a business-invitee relationship existed; that The Palace had knowledge of the alleged unsafe conditions, thereby giving rise to a duty to cure or inform invitees of the condition; that The Palace failed to warn or cure the dangerous conditions, thereby breaching a duty; and that as a proximate cause of this breach, plaintiff was injured. The court overrules the second demurrer to the negligence count against The Palace.
Cherry v. The Palace on Plume Street (Lannetti) No. CL 14-6642, Sept. 16, 2015; Norfolk Cir.Ct.; Douglas P. Barber Jr., Michael G. Sweeney for the parties. VLW 015-8-109, 5 pp.
