This case arises out of an assault and battery by a former employee against his foreman, the plaintiff. Plaintiff had terminated the assailant two weeks prior to the incident for parking violations at the construction site at the direction of the general contractor. The former employee then returned to the construction site and struck the plaintiff in the face with a fire extinguisher. Plaintiff brought action against the owner, the general contractor and the security company for the site alleging negligence as well as violations of the Labor Law.
Burke, Scolamiero, Mortati & Hurd, LLP vigorously defended the action by bringing a third party action against the assailant and moving for summary judgment at the close of all discovery. The motion relied heavily on the facts of the case particularly the testimony of the owner who had contracted with the security company. Pursuant to the testimony of the owner of the facility, the security company was only to act as “traffic cops” directing visitors where to go on this large site and keep out general members of the public. The security company had no further role inside the site such as providing job place safety.
The Court ruled in favor of all defendants dismissing the case in its entirety. As to the security company, the Court held that there was no privity between the plaintiff and the security company as the contract was only between the owner and the security company and furthermore the plaintiff was not an intended third party beneficiary of that contract. Additionally, the Court noted that the sudden and vicious attack of the assailant was not foreseeable.
The matter was defended by our partners Peter Scolamiero and Judi Aumand, with Ms. Aumand having submitted the motion.