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FONTAINE v. RYAN

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


December 13, 1993

KIMBERLY FONTAINE, Plaintiff,
v.
KIMBERLY RYAN, STEPHEN SPROUSE, STEPHEN SPROUSE STUDIOUS, INC., PINKERTON'S, INC., BIANKA BERNIC, JED RICHARDSON and KEEBLE CAVACO & DUKA, INC., Defendants.

The opinion of the court was delivered by: VINCENT L. BRODERICK

MEMORANDUM ORDER

 VINCENT L. BRODERICK, U.S.D.J.

 I

 This case, in which jurisdiction is based on diversity of citizenship, involves an altercation at a party in the course of which the defendant Kimberly Ryan ("Ryan") injured the plaintiff. In addition to Ryan, plaintiff sued the sponsor of the party, Pinkerton's, Inc. ("Pinkerton's") which had been retained to provide security at the affair, and other defendants.

 By Report and Recommendation dated September 2, 1993 United States Magistrate Judge Leonard Bernikow recommended that motions for summary judgment under Fed.R.Civ.P. 56 be granted for plaintiff against defendant Ryan and that such motions be granted in favor of defendants with respect to the other claims. I approve and adopt the Report and Recommendation of the Magistrate Judge, which is attached to and made a part of this memorandum order. *fn1" The comprehensive factual and legal analysis of the Magistrate Judge will not be repeated here; familiarity with it is assumed.

 Plaintiff's objections are entirely devoid of merit. There is no evidence suggesting that the sponsor of the party, Pinkerton's, or anyone other than defendant Ryan caused, or could reasonably have been expected to prevent, plaintiff's injuries resulting from Ryan's attack.

 II

 In granting summary judgment for defendants other than Ryan, the Magistrate Judge did not determine the scope of the duty of Pinkerton's toward the party sponsor in the absence of any detailed or written agreement between them. The legitimate interests of the parties - an important guide to contract interpretation where no document or explicit oral agreement concerning the matter exists - would suggest that security guards were paid by the sponsor of the party to protect that sponsor, and absent advance assurances of protection of invitees, owed no duty to the invitees.

 Protection of the sponsor would logically include prevention, if possible, of the kind of incident giving rise to this lawsuit. Such an objective of the sponsor's agreement with Pinkerton's does not, however, suggest that a purpose of the agreement was to create a duty enforceable by invitees. There would have been no reason for the sponsor and Pinkerton's to agree to be liable to an invitee if an injury occurred at the affair notwithstanding whatever steps Pinkerton's might have been able to take to avoid such an incident, except if availability of guard protection was announced in order to encourage attendance (an event not suggested to have occurred here).

 Absent explicit or inferable agreement to undertake responsibility to third parties (not merely to protect them for the benefit of the directly contracting parties), a third party beneficiary agreement enforceable by the third party does not exist. See Strauss v. Belle Realty Co, 98 A.D.2d 424, 469 N.Y.S.2d 948, 950 (2d Dept 1983), aff'd 65 N.Y.2d 399, 492 N.Y.S.2d 555, 482 N.E.2d 34 (1985); Note, 57 Colum L Rev 406 (1957); Special Comm on Consumer Aff, "Remedies Short of Consent or Litigated Orders for Violation of the Federal Trade Commission Act," 32 Rec Ass'n Bar City NY 622 (1977).

 If a contract is silent with respect to such a potentially far-reaching obligation not implicit in the parties' arrangement, and there is no basis for inferring a duty, the duty may properly be held to be absent based on the language of the contract. Otherwise the result would be one of "trapping parties in surprise contractual obligations that they never intended." TIAA v. Tribune Co, 670 F. Supp. 491, 497 (SDNY 1987) (Leval, J.). This would have ill effects on the predictability of transactions, whereas "stability and predictability in contractual affairs is a highly desirable jurisprudential value." Sabetay v. Sterling Drug, 69 N.Y.2d 329, 336, 514 N.Y.S.2d 209, 213, 506 N.E.2d 919 (1987).

 If agencies such as Pinkerton's were liable for damages should injuries occur at an affair through no fault of theirs and despite efforts to provide security, the cost of such guard service would increase, and the ranks of those able to obtain such service would obviously be lessened with no gain to the contracting parties or the public interest. *fn2"

 III

 Pinkerton's has filed its own objections complaining that the Magistrate Judge's Report and Recommendation failed to limit Pinkerton's duty to the sponsor with whom they contracted. As a prevailing party securing summary judgment in its favor, Pinkerton's appears to lack standing to pursue such objections, which need not in any event be reached. See In re DES Litigation, 7 F.3d 20 (2d Cir 1993); see also California v. Rooney, 483 U.S. 307, 97 L. Ed. 2d 258, 107 S. Ct. 2852 (1987); Black v. Cutter Laboratories, 351 U.S. 292, 297, 100 L. Ed. 1188, 76 S. Ct. 824 (1956).

 SO ORDERED.

 Dated: White Plains, New York

 December 13, 1993

 /s/ John S. Martin, USDJ for

 VINCENT L. BRODERICK, U.S.D.J.


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