PREMISES LIABILITY AND LIQUOR LIABILITY OVERVIEW DESK REFERENCE

Transcription

1 PREMISES LIABILITY AND LIQUOR LIABILITY OVERVIEW DESK REFERENCE NEW JERSEY & NEW YORK Scott R. Behman H. Charles Hambelton Sharmili P. Das Daniel J. Shanahan Phillip J. Lagana William M. Boyle MASSACHUSETTS 600 West Cummings Park, Suite 5600 Woburn, MA TEL: (800) TEL: (781) FAX: (781) NEW YORK 125 Maiden Lane, Suite 15C New York, NY TEL: (212) FAX: (212) CONNECTICUT 10 Alexander Drive Wallingford, CT TEL: (860) FAX: (860) RHODE ISLAND 245 Waterman Street, Suite 105 Providence, RI TEL: (401) FAX: (401) Also active offices and/or practicing attorneys in the following states and Courts: Florida, Maine, New Hampshire, New Jersey, Vermont, and the Mohegan Nation Gaming Tribal Courts (Casinos).

2 DESK REFERENCE PREMISES & LIQUOR LIABILITY About Behman Hambelton, LLP Behman Hambelton LLP is a mid-sized, regional litigation firm representing clients throughout New Jersey and New York. While we approach all client matters with an eye for opportunities to obtain as prompt a favorable resolution as is possible, we also design a litigation plan for each matter to prepare it for trial, if ultimately necessary. We have found that having a trial game plan for each litigated matter right from the outset actually serves to expose the weaknesses in the opposing party s claims and leads, in many cases, to the settlement of such claims upon terms that are very favorable to our clients. Should resolution by settlement not be possible, we are nevertheless fully prepared to take the matter to verdict. Our experienced trial attorneys have developed a reputation for excellence in litigating matters in both State and Federal Courts on behalf of insureds, insurers and self-insureds, as well as individuals and businesses, concerning an array of complex legal issues. Contents: New Jersey New York Dedication to serving the needs of its clients is the backbone of Behman Hambelton LLP. Behman Hambelton prides itself on providing progressive and economical solutions to the needs of clients in all areas of the firm's practice. We take a macro view of our clients' needs to address root causes of issues and to formulate plans to avoid future problems. Our proven litigation track record and our ability to analyze trends in the legal community provide confidence to our clients and has allowed us to develop a reputation as zealous advocates. We strive to excel in all areas of our practice with client satisfaction, as always, our paramount goal. Behman Hambelton, LLP Desk Reference We hope that you find the information in this Desk Reference useful. You should be aware that the information provided in the Desk Reference is presented in a general format and is not a comprehensive summary of all the issues that may be applicable. Furthermore, laws and regulations are constantly changing. These changes may not be incorporated into this version of the Desk Reference. With these factors in mind, it is important that you do not rely solely on the information provided. We would be pleased to help you review all pertinent information and can assist you in developing a comprehensive litigation strategy. For More Information If you have any questions, please contact: 600 West Cummings Park, Suite 5600 Woburn, MA TEL: (781) FAX: (781)

3 DESK REFERENCE PREMISES & LIQUOR LIABILITY Table of Contents NEW JERSEY Premises Liability Law Synopsis...1 Liquor Liability Law Synopsis...5 NEW YORK Premises Liability Law Synopsis...12 Liquor Liability Law Synopsis...15

4 NEW JERSEY PREMISES LIABILITY LAW SYNOPSIS A. STATUTE OF LIMITATIONS (NEGLIGENCE) Two years. N.J. STAT. ANN. 2A:14-2 (2014). B. PREMISES LIABILITY 1. Slip and Fall A proprietor of premises to which the public is invited to do business is under a duty to use reasonable care to maintain the premises in a condition reasonably safe for the business invitee s use. Nelson v. Great Atlantic & Pacific Tea Co., 48 N.J. Super. 300, 306 (App. Div. 1958). In order to establish liability of a proprietor of premises to which the public is invited, for injuries sustained by a business invitee because of the condition of premises, the business invitee must show that the condition of the premises was unsafe. Bohn v. Hudson and Manhattan R. Co., 16 N.J. 180, 185 (1954). The invitee must also show that the proprietor was at fault in failing to remedy the situation after having knowledge of the condition or after existence of the condition for such length of time as reasonably to have resulted in knowledge and correction had the proprietor been reasonably diligent. Id. at Snow and Ice A business owner owes its business invitee a duty of exercising reasonable care to maintain the parking lot in reasonably safe condition, and, as part of that general obligation, is under a duty to exercise reasonable care to keep the lot free of ice and snow. Bates v. Valley Fair Enters., Inc., 86 N.J. Super. 1, 6 (1964). 1

5 3. Negligent Security In negligent security cases, it is not necessary that the particular consequences of the negligent act be foreseen so long as it is foreseeable that some injury may ensue. Instead, proximate cause may be established by demonstrating that according to the common experience of mankind, the resulting injury was a reasonably foreseeable consequence of the negligent act. Nebel v. Avichal Enters., Inc., 704 F.Supp. 570, (1989) (citing Chomatopoulos v. Roma DeNotte Soc. Club, 212 N.J. Super. 447, (1985)) (holding that failure of illegal gambling establishment to provide private security force that would deter and/or control foreseeable altercations among its patrons was a proximate cause of gambler s injury). C. JOINT TORTFEASORS/JOINT AND SEVERAL LIABILITY Each tortfeasor is liable for his proportionate share of damages according to his own degree of fault. N.J. STAT. ANN. 2A:53A-3 (2014). When any one joint tortfeasor pays a judgment in whole or in part, he is entitled to recover contribution from the other joint tortfeasor(s) for the excess paid over his share. Id. D. COMPARATIVE/CONTRIBUTORY NEGLIGENCE Under New Jersey s comparative negligence doctrine, a plaintiff may recover if his negligence contributed to the damages provided his negligence was not greater than the party or parties against whom recovery is sought (i.e., less than or equal to fifty percent). However, the damages to which an injured party would be entitled will be diminished by the percentage of negligence attributable to the recovering party. N.J. STAT. ANN. 2A: et. seq. (2014). 2

6 E. PRE-JUDGMENT INTEREST Pursuant to Rule 4:42-11(b) of the Rules Governing the Courts of the State of New Jersey, pre-judgment interest rates in tort actions are the same as the post-judgment interest rates. The annual pre-judgment and post-judgment interest rate is equal to the average rate of return for the State of New Jersey Cash Management Fund for the preceding fiscal year, rounded off to the nearest one-half percent. F. SETTLEMENT PRACTICES Initially in the litigation, settlement proceedings take the form of a court ordered, non-binding mandatory mediation, a process by which the parties appear before a private, neutral mediator, who assists them in attempting to resolve their dispute by voluntary agreement. Both sides present their case and are awarded a few hours of free mediation. If the parties believe the mediation could be helpful and beneficial, they are free to continue the mediation at cost to the parties. Towards the end of the litigation and post discovery, a mandatory, non-binding Arbitration is scheduled by the Court. A neutral Arbitrator (usually an experienced attorney in the venued County) renders a decision based upon the statements, facts and informal testimony presented by both parties. The Arbitration award is usually a means of getting the parties to discuss settlement. All parties, if dissatisfied with the Arbitration award, have thirty days to file a trial de novo which rejects the Arbitration award and requests a trial of the issues. The trial de novo filing must be served on all parties and if it is not so served, the judgment is entered. If no party files a trial de novo, judgment is entered against the defendant for the amount awarded. Rejection of the arbitrator s award makes one liable for 3

7 reasonable costs, including attorney s fees, incurred after rejection of the award by those parties not demanding a trial de novo Behman Hambelton LLP. 4

8 NEW JERSEY LIQUOR LIABILITY LAW SYNOPSIS A. PROCEDURAL LAW 1. Time to Respond to Complaint A defendant shall serve an answer, including therein any counterclaim, within thirtyfive days after being served the summons and complaint. R. 4:6-1 (2015). 2. Time for Plaintiff to Perfect Service of Process Upon Defendant Rules for service may vary based upon the court in which the action was filed. R. 4:4 (2015). If the action is filed in the Law Division, and the process is to be served in state, the clerk of court will mail the process via certified and ordinary mail within twelve days of the complaint being filed. Id. 3. Statute of Limitations Two years. N.J. STAT. ANN. 2A:14-2 (2014). 4. Joint Tortfeasors/Joint and Several Liability Each tortfeasor is liable for his proportionate share of damages according to his own degree of fault. N.J. STAT. ANN. 2A:53A-3 (2014). When any one joint tortfeasor pays a judgment in whole or in part, he is entitled to recover contribution from the other joint tortfeasor(s) for the excess paid over his share. Id. 5. Caps on Liability The New Jersey Licensed Alcoholic Beverage Server Fair Liability Act is the exclusive civil remedy for personal injury or property damage resulting from the negligent service of alcoholic beverages by a licensed alcoholic beverage server. However, nothing contained in the Act shall be deemed to limit the criminal, quasi-criminal, or regulatory 5

9 penalties which may be imposed upon a licensed alcoholic beverage server by any other statute, rule or regulation. N.J. STAT. ANN. 2A:22A-4 (2014). B. LIABILITY A licensed alcoholic beverage server shall be deemed to have been negligent only when the server served a visibly intoxicated person, or served a minor, under circumstances where the server knew, or reasonably should have known, that the person served was a minor. N.J. STAT. ANN. 2A:22A-5 (2014). C. TOLLING PROVISIONS The statute of limitations does not commence for a minor until the minor reaches the age of majority, eighteen. Although N.J. STAT. ANN. 2A:14-21 continues to expressly provide for tolling for those under age twenty-one, 9:17B-1 lowered the age of majority from twenty-one to eighteen, which the New Jersey Supreme Court upheld as the statutory age for tolling in Green v. Auerbach Chevrolet Corp., 127 N.J. 591, 598 (1992). As such, the minor would have two years after reaching the age of majority. See id. D. SUBSTANTIVE LAW 1. Minors A licensed alcoholic beverage server is deemed to have been negligent only when the server served a visibly intoxicated person, or served a minor, under circumstances where the server knew, or reasonably should have known, that the person served was a minor. N.J. STAT. ANN. 2A:22A-5 (2014). 6

10 2. Imbibers An imbiber may sue for his own injuries. Voss v. Tranquilino, 206 N.J. 93, 96 (2011) (holding that a driver who was injured after a drunk driving accident was able to sue under dram shop for service while visibly intoxicated). 3. Assault and Battery Involving Drunken Patrons New Jersey follows an expansive version of the totality of circumstances approach in assessing a tavern keeper s liability for assault and battery claims. Kuehn v. Pub Zone, 364 N.J. Super. 301, 312 (App. Div. 2003). A tavern keeper owes a duty to take reasonable precautions to protect against intentional tortfeasors. Id. at 313. In Kuehn, the totality of the circumstances gave rise to a duty owed by the defendant tavern to a patron who was attacked in the men s room by members of a motorcycle gang. Id. at Where the gang was collectively known to a proprietor of the tavern to engage in random violence, the Court found the tavern had a duty to take reasonable safety precautions against danger posed by the gang as a group. Id. at 313. This duty was in place despite the fact that the proprietor had no reason to suspect any particular member of the gang of violent conduct and violence was not to be expected from the gang at any particular time or in any particular circumstance. Id. A distinction was drawn, however, with respect to individual patrons. In Ivins v. Town Tavern, the Court found that even though tavern employees knew the aggressor had a potentially violent nature, and the employees may have been aware of the friction between the aggressor and plaintiff s friend, there was no evidence of any events occurring inside the tavern that night that should have put the tavern employees on notice that a possible fight was in the works. 335 N.J. Super. 188, 197 (App. Div. 2000). Had such evidence existed, it 7

11 would have triggered a duty on the part of the tavern employees to take preventive measures. Id. E. SPECIAL DEFENSES A comparative negligence defense is available to a tavern owner under the Alcoholic Beverage Servers Liability Act against a patron who brings suit for injuries suffered as a result of her own intoxication. N.J. STAT. ANN. 2A:22A-1 et seq. (2014).; McGovern v. Koza s Bar & Grill, 254 N.J. Super. 723, 728 (Law Div. 1991). The New Jersey Dram Shop Act, N.J. STAT. ANN. 2A:22A-5 (2014), requires the application of the Comparative Negligence Act at N.J. STAT. ANN. 2A:22A-6 (2014). The Dram Shop Act also requires the consideration of foreseeability and causation in apportioning fault, requiring the jury to consider all the relevant circumstances in apportioning fault in cases. Showalter v. Barilari, Inc., 312 N.J. Super. 494 (App. Div. 1998). F. PRE-JUDGMENT INTEREST/RESOLUTIONS 1. Pre-Judgment Interest Pre-judgment interest rates in tort actions are the same as the post-judgment interest rates. R. 4:42-11(b) (2015). The annual pre-judgment and post-judgment interest rate is equal to the average rate of return for the State of New Jersey Cash Management Fund for the preceding fiscal year, rounded off to the nearest one-half percent. Id. 2. Offer of Compromise At any time more than twenty days before the actual trial date, any party may, without prejudice, serve on any adverse party and file with the court, an offer to take a monetary judgment in the offeror s favor, or as the case may be, to allow judgment to be 8

12 taken against the offeror, for a sum stated therein (including costs). R. 4:58-1(a) (2015). This only applies when the relief sought is exclusively monetary. Id. Should the offer be accepted at least ten days before the actual trial date, the offeree must serve on the offeror and file with the court a notice of acceptance. R. 4:58-1(b) (2015). The making of a further offer shall constitute a withdrawal of all previous offers made by that party. An offer shall not, however, be deemed withdrawn upon the making of a counteroffer by an adverse party but shall remain open until accepted or withdrawn as is herein provided. Id. The offer expires if it is not accepted within ten days of the trial date or within ninety days of its service. Id. R. 4:58-2(a) (2015). If the offer of a claimant is not accepted and the claimant obtains a money judgment, in an amount that is 120% of the offer or more, excluding allowable prejudgment interest and counsel fees, the claimant shall be allowed in addition to costs of suit: (1) all reasonable litigation expenses incurred following non-acceptance; (2) prejudgment interest of eight percent on the amount of any money recovery from the date of the offer or the date of completion of discovery, whichever is later, but only to the extent that such prejudgment interest exceeds the interest prescribed by R. 4:42-11(b), which also shall be allowable; and (3) a reasonable attorney s fee for such subsequent services as are compelled by the non-acceptance. If the offer of a non-claimant party is not accepted, and the claimant obtains a monetary judgment favorable to the offeror, the offeror is permitted the allowances described above in addition to the costs of suit. R. 4:58-3(a) (2015). A favorable determination qualifying for such allowances is a money judgment in an amount, excluding allowable prejudgment interest and counsel fees, equaling eighty percent of the offer or less. R. 4:58-3(b) (2015). 9

13 No allowances will be granted if the claimant s claim is dismissed, a no cause verdict is returned, only nominal damages are awarded, a fee allowance would conflict with the policies underlying a fee-shifting statute or rule of court, or an allowance would impose an undue hardship. R. 4:58-3(c) (2015). However, if an undue hardship may be avoided by reducing the allowance to a lower sum, the court will reduce accordingly. Id. Applications for allowances must be made within twenty days after entry of final judgment. R. 4:58-6 (2015). A party who is awarded counsel fees, costs, or interest as a prevailing party pursuant to a fee-shifting statute, rule of court, contractual provision, or decisional law shall not be allowed to recover duplicative fees, costs, or interest under this rule. Id. G. SETTLEMENT PRACTICES Initially in the litigation, settlement proceedings take the form of a court ordered, non-binding mandatory mediation, a process by which the parties appear before a private, neutral mediator, who assists them in attempting to resolve their dispute by voluntary agreement. Both sides present their case and are awarded a few hours of free mediation. If the parties believe the mediation could be helpful and beneficial, they are free to continue the mediation at cost to the parties. Towards the end of the litigation and post discovery, a mandatory, non-binding Arbitration is scheduled by the Court. A neutral Arbitrator (usually an experienced attorney in the venued County) renders a decision based upon the statements, facts and informal testimony presented by both parties. The Arbitration award is usually a means of getting the parties to discuss settlement. All parties, if dissatisfied with the Arbitration award, have thirty days to file a trial de novo which rejects the Arbitration award and requests a trial of 10

14 the issues. The trial de novo filing must be served on all parties and if it is not so served, the judgment is entered. If no party files a trial de novo, judgment is entered against the defendant for the amount awarded. Rejection of the arbitrator s award makes one liable for reasonable costs, including attorney s fees, incurred after rejection of the award by those parties not demanding a trial de novo Behman Hambelton LLP. 11

15 NEW YORK PREMISES LIABILITY LAW SYNOPSIS A. STATUTE OF LIMITATIONS (NEGLIGENCE) Three years. CPLR 215 (2014). B. PREMISES LIABILITY 1. Slip and Fall New York applies a single standard of reasonable care under circumstances whereby foreseeability is the measure of liability. Basso v. Miller, 40 N.Y.2d 233, 241 (1976); Quinlan v. Cechini, 41 N.Y.2d 686, 689 (1977). The duty owed is that of reasonable care for safety of all persons reasonably to be expected upon owner possessor s land. Farkas v. Cedarhurst Natural Food Shoppe, Inc., 41 N.Y.2d 1041, (1977). With respect to a foreign substance on the floor of a business that invites customers, such as a supermarket or store, proof of notice of the substance is essential to recovery by a customer who slipped and fell as a result of the substance. Cameron v. Bohack, 27 A.D.2d 362, 364 (1967). 2. Snow and Ice Landowners are not responsible for failure to remove snow and ice until a reasonable amount of time elapsed after cessation of the storm (i.e., there can be no liability for failure to remove snow and ice where a snowstorm is still in progress at the time of the slip and fall). Cerra v. Perk Dev., 602 N.Y.S.2d 277, 277 (1993). A building owner is not liable in tort for injuries sustained by a pedestrian who slips and falls on snow and ice which naturally accumulated on a sidewalk in front of its premises because the landlord owes no duty to the public to remove naturally accumulated snow and ice. Gerber v. City of New York, 719 N.Y.S.2d 650, 651 (2001). 12

16 An out-of-possession landlord may incur liability in tort for injuries sustained by a pedestrian who slips and falls on snow and ice that naturally accumulates on the sidewalk in front of the premises if the landlord attempted to remove snow and ice and made the condition more hazardous. Id. An owner must be notified of the icy condition, evidence must be adduced as the origin of the icy patch on which the pedestrian allegedly slipped and the owner must have sufficient time to remedy the dangerous condition. Simmons v. Metro. Life Ins. Co., 84 N.Y.2d 972, 973 (1994). 3. Negligent Security New York also focuses on the foreseeability of the injuries sustained in a negligent security claim and does not impose a requirement that a business be a guarantor of its invitees safety. Where a person was assaulted during a robbery attempt on the grounds of the defendant s apartment complex, the Court found that there was no duty to protect against such incidents beyond the security force patrols provided by the defendant. Leyva v. Riverbay Corp., 620 N.Y.S.2d 333, 337 (1995). C. JOINT TORTFEASORS/JOINT AND SEVERAL LIABILITY A statutory right of contribution exists between or among joint tortfeasors in accordance with their relative degrees of fault. CPLR 1401 (2014). D. COMPARATIVE/CONTRIBUTORY NEGLIGENCE New York is a pure comparative state. CPLR 1411 (2014). A plaintiff can recover as long as he is not 100% at fault. Id. The plaintiff s recovery damages are reduced in accordance with his degree of fault. Id. 13

17 E. PRE-JUDGMENT INTEREST/RESOLUTIONS 1. Pre-Judgment Interest Nine percent per annum. CPLR 5004 (2014). 2. Offer of Compromise A defendant may offer the plaintiff judgment for a specific sum. CPLR 3221 (2014). The plaintiff may accept or refuse; the plaintiff s acceptance results in judgment and closes the case. Id. If the plaintiff rejects the offer and then does no better at the time of the trial, the plaintiff loses costs from the time of the offer and must pay the defendant s costs as of that time. Id. F. SETTLEMENT PRACTICES In New York, the notice of settlement procedure is very localized and may vary from county to county; however, the common aspect of the procedure is the settlement conference. A settlement conference is required to discuss material issues of the case. Attendance at the conference is mandatory. No awards are made as a result of settlement conferences, and if the matter is not settled, the case proceeds to trial Behman Hambelton LLP. 14

18 NEW YORK LIQUOR LIABILITY LAW SYNOPSIS A. PROCEDURAL LAW 1. Time to Respond to Complaint Contingent on the method of service the shortest time period to respond is twenty days from the return date to file the initial responsive pleading. CPLR 320 (2014). 2. Time for Plaintiff to Perfect Service of Process Upon Defendant An action is commenced by filing a summons and complaint. CPLR 304 (2014). Service of the summons and complaint must be made within 120 days after commencement of the action. CPLR 306-b (2014). Process shall be returned to the Supreme Court within the time in which the defendant is allowed to answer. CPLR 306-a(a) (2014). 3. Notice/Statute of Limitations An action to recover damages for a personal injury must be commenced within three years. CPLR 214 (2014). 4. Joint Tortfeasors/Joint and Several Liability A statutory right of contribution exists between or among joint tortfeasors in accordance with their relative degrees of fault. CPLR 1401 (2014). 5. Caps on Liability None. B. LIABILITY No person shall sell, deliver or give away or cause or permit or procure to be sold, delivered or given away any alcoholic beverages to: Any visibly intoxicated person; Any 15

19 habitual drunkard known to be such to the person authorized to dispense any alcoholic beverages. N.Y. ALCO. BEV. CONT. LAW 65 (2014). C. TOLLING PROVISIONS CPLR 208 (2014). If a person entitled to commence an action is under a disability because of infancy or insanity at the time the cause of action accrues, and the time otherwise limited for commencing the action is three years or more and expires no later than three years after the disability ceases, or the person under the disability dies, the time within which the action must be commenced shall be extended to three years after the disability ceases or the person under the disability dies, whichever event first occurs; if the time otherwise limited is less than three years, the time shall be extended by the period of disability. The time within which the action must be commenced shall not be extended by this provision beyond ten years after the cause of action accrues, except, in any action other than for medical, dental or podiatric malpractice, where the person was under a disability due to infancy. D. SUBSTANTIVE LAW 1. Minors No person shall sell, deliver or give away or cause or permit or procure to be sold, delivered or given away any alcoholic beverages to: 1. Any person, actually or apparently, under the age of twenty-one years.... N.Y. ALCO. BEV. CONT. LAW 65 (2014). To find that a liquor licensee caused or permitted the service or delivery of alcoholic beverages to a minor in violation of the Alcoholic Beverage Control Law, conduct must be open, observable and of such nature that its continuance could, by the exercise of reasonable diligence, have been prevented. Park II Villa Corp. v. New York State Liquor Auth., 529 N.Y.S.2d 370, 371 (1988) (citing 4373 Tavern Corp. v. New York State Liquor Auth., 377 N.Y.S.2d 135, 136 (1975)). 16

20 2. Imbibers In Donato v. McLaughlin, the Court held that a tavern could not be held liable, under the Dram Shop Act, to the victim of an automobile accident caused by the tavern s patron absent evidence that the patron was visibly intoxicated when he was served alcohol at the tavern and thus that any illegal sale took place. 599 N.Y.S.2d 754, 756 (1993). In order to sustain a claim under the Dram Shop Act, the plaintiff must show that the defendant vendor unlawfully sold alcoholic beverages to an intoxicated patron and the plaintiff must offer evidence that the party to whom liquor was sold acted or appeared to be intoxicated at time of sale. Nehme v. Joseph, 554 N.Y.S.2d 642, 643 (1990). 3. Assault and Battery Involving Drunken Patrons In New York, a duty to protect one s patrons arises once it is shown that the owner or business proprietor had reason to know of the likelihood of a criminal act occurring upon his property. Stevens v. Kirby, 450 N.Y.S.2d 607, 610 (1982). The test in New York for determining whether a landholder had reason to know of a criminal act is an expansive version of the prior similar incidents approach. Id. The owner of a public establishment has no duty to protect patrons from unforeseeable and unexpected assaults. Rishty v. DOM, Inc., 888 N.Y.S.2d 151, 152 (2009). In Tyrrell v. Quigley, the Court stated the defendant was bound to use reasonable care to protect his patrons from injury at the hands of a vicious individual whom the tavern knowingly permitted to be in and about the tavern. 60 N.Y.S.2d 821, 822 (1946). The plaintiff alleged he had been assaulted by a female patron in the defendant s bar, and that such patron had been served intoxicating beverages by the defendant to the extent that she 17

21 became boisterous and prone to violent action, and that the defendant was aware of the patron s reaction to intoxicating beverages. Id. However, a bar patron who was injured as a result of a sudden and unexpected assault by unidentified assailants was not entitled to recover against the bar because the bar owner could not have reasonably anticipated or prevented the assault, and thus the owner could not be held liable for the patron s injuries. Katekis v. Naut, Inc., 875 N.Y.S.2d 212, 214 (2009). Similarly, even if an anticipated presence of large crowds of young people consuming alcohol at a club in early morning hours made a criminal attack on a patron by another patron foreseeable, so as to impose a duty on the club owner to take reasonable security measures to minimize danger, the plaintiff failed to prove that the defendant bar owner breached that duty where the owner took security measures against criminal attacks involving weapons (i.e., hiring state licensed security guards who were present throughout the club in significant numbers, conducting pat downs, and operating metal detectors at the club s entrance). Djurkovic v. Three Goodfellows, Inc., 767 N.Y.S.2d 108, 109 (2003). E. SPECIAL DEFENSES New York is a pure comparative state. CPLR 1411 (2014). A plaintiff can recover as long as he is not 100% at fault. Id. The plaintiff s recovery damages are reduced in accordance with his degree of fault. Id. F. PRE-JUDGMENT INTEREST/ RESOLUTIONS 1. Pre-Judgment Interest Nine percent per annum. NY CPLR 5004 (2014). 18

22 2. Offer of Compromise A defendant may offer the plaintiff judgment for a specific sum. CPLR 3221 (2014). The plaintiff may accept or refuse; the plaintiff s acceptance results in judgment and closes the case. Id. If the plaintiff rejects the offer and then does no better at the time of the trial, the plaintiff loses costs from the time of the offer and must pay the defendant s costs as of that time. Id. G. SETTLEMENT PRACTICES In New York, the notice of settlement procedure is very localized and may vary from county to county; however, the common aspect of the procedure is the settlement conference. A settlement conference is required to discuss material issues of the case. Attendance at the conference is mandatory. No awards are made as a result of settlement conferences, and if the matter is not settled, the case proceeds to trial Behman Hambelton LLP. 19