A man enters a bar after having a few beers down the block. Not clear what caused or who initiated an encounter after he was served with the wrong drink—but a bartender hit him with a beer bottle causing injuries. The customer sued the bar for negligent hiring, training and supervision. Did the employee have dangerous propensities?

The action arose out of an incident that occurred on June 3, 2017, at approximately 2:30 a.m., at Bar Great Harry on Smith Street in Brooklyn. At that time and place, a bar back by the name of Carlos Vera, an employee of the Bar, struck Grossman in the face with a bottle. Grossman alleged that the Bar was negligent in failing to prevent the incident; in failing to call the police and ambulance after he was attacked; in failing to exercise reasonable care in hiring, training and supervision of Vera and other employees; and of failing to exercise reasonable care in the ownership, operation, management, maintenance, supervision and control of the pub. Grossman also claimed that the Bar was allowed to become disorderly in violation of Section 106 of the Alcohol Beverage Control Law.

The Bar moved for summary judgment dismissing Grossman’s complaint.

The Bar maintained that since the owners lacked knowledge that Vera had dangerous propensities, Grossman’s claims of negligent hiring and negligent retention failed a matter of law. And also claimed that, since the incident was a sudden and unexpected event which they had no opportunity to prevent, Grossman’s claim that they were negligent in the operation of the premises also failed as a matter of law. Finally, the Bar argued that they were not vicariously liable for Vera’s acts as he was acting outside the scope of his employment as a matter of law.

In support of the motion, the Bar relied primarily on the deposition testimony of Grossman and Ben Wiley. Grossman testified that he first arrived at the bar approximately 20 minutes before the incident and had two to three beers before arriving. Upon arriving, he sat at the bar and stayed there until the time of the incident. That evening, there was one bartender (Justin Hodge) and one bar back ( Vera) working the Bar. Grossman had never seen Vera working there bar before that night.

Immediately before the incident, Grossman claimed that he was served with a Bud Light, which he said was not the beer that he ordered. He testified that Vera removed the Bud Light, replaced it with a Budweiser and slammed it on the surface in front of him. Grossman told Vera to “stop staring” at him. And Vera then struck Grossman over the head with a bottle causing the injuries.

Ben Wiley, a managing member and owner of the Bar, testified that on, the evening of the incident, the place was staffed by Hodge, the bartender, and Vera. Prior to the incident, Vera had been working at the bar for six months, perhaps longer. He testified that Vera was referred from one of the other “high quality bars” in the area. Prior to hiring Vera, Wiley interviewed him for the bar back position. He maintained that he always checked and followed up on all references for new hires. Wiley, along with John Tannen, the manager, made the decision to hire Vera.

Wiley testified that he received no complaints about Vera before the incident. Once Vera was hired, Tannen told him that things with Vera were fine. There were no attendance problems with Vera and he was unaware of any problems that Hodge had with Vera prior to the incident. No one ever informed Wiley that Vera had a temper, a problem with anger, or anger problems with customers. Wiley maintained that no one at the place had any reservations about hiring Vera and that no one was disappointed with him while he worked there.

In opposition to the motion, Grossman argued that there was sufficient evidence that the Bar either knew or should have known of  Vera’s dangerous propensities. In this regard, he maintained that, after the incident, Hodge told him Vera had been aggressive with other patrons in the past. Grossman also contended that Vera’s extensive criminal history should have put the Bar on notice that Vera had dangerous propensities. Grossman submitted records purportedly showing that Vera was charged with strangulation and assault with a knife of his pregnant domestic partner.

An employer cannot be held vicariously liable for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer’s business. But the employer may still be held liable under theories of negligent hiring, retention, and supervision of the employee. A necessary element of such causes of action is that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury. The employer’s negligence lies in having placed the employee in a position to cause foreseeable harm, which would most probably have been spared the injured party had the employer taken reasonable care in making decisions respecting the hiring and retention of the employee.

Here, even if it was demonstrated that Vera was acting outside the scope of his employment when he struck Grossman with a bottle, the Bar failed to make a prima facie showing that it was not negligent with respect to hiring, retention, and supervision. To demonstrate that it neither knew nor should have known of Vera’s propensity for violence, the Bar relied exclusively on Wiley’s deposition testimony. The Bar did not submit an affidavit or any other admissible proof demonstrating that John Tannen, the bar manager, neither knew nor should have known of Vera’s dangerous propensities. And Tannen was partly responsible for hiring Vera and was his direct supervisor.

The Court found that the Bar failed to make a prima facie showing of entitlement to summary judgment and the motion was denied.