United States District Court, S.D. New York
September 7, 2005.
LISA DEMARCO, Plaintiff,
TIMOTHY OUELLETTE, et al., Defendant.
The opinion of the court was delivered by: RICHARD HOLWELL, District Judge
MEMORANDUM OPINION AND ORDER
This personal injury action is brought by plaintiff Lisa
DeMarco against individual defendant Timothy Ouellete, and
corporate defendants The Culture Club NYC, Inc. (the "Culture
Club, Inc.") and The Culture Club NYC, LLC (the "Culture Club").
Plaintiff has voluntarily dismissed*fn1 all claims against
Ouellete and the Culture Club, Inc., leaving only defendant
Culture Club, which owns a nightclub by the same name on Varick
Street in New York City. While patronizing that nightclub on the
evening of June 20-21, 2003, plaintiff suffered a fractured ankle
when an unidentified male patron fell on her. Plaintiff now
claims that the Culture Club is responsible for her injury
because it (i) negligently failed to remove the unidentified male
from its premises prior to the accident; (ii) operated an
inherently dangerous "tiered" dance floor; (iii) negligently
allowed the club to become overcrowded; and (iv) violated New
York's Dram Shop Act. Defendant Culture Club has moved for summary judgment on all claims. For
the reasons set forth below, that motion is granted.
The following facts are taken from the parties' Rule 56.1
statements, affidavits and depositions. Unless otherwise noted,
they are not disputed. On the evening of June 20, 2003, plaintiff
and a friend, Gina Giarratana, arrived at the Culture Club
between 9 and 11 o'clock (Deposition of Lisa DeMarco, p. 22
("DeMarco Dep.")). Both had been to the Club on several previous
occasions. As the evening wore on, the two danced and socialized,
consuming approximately two drinks each between the time they
arrived and 2 a.m. the next morning. There is no evidence that
plaintiff was intoxicated when she arrived at the Club, and
plaintiff testified that she remained sober throughout the
evening, most of which she spent with Giarratana on the Club's
"tiered" dance floor. (DeMarco Dep., p. 41).
The "tiered" nature of the dance floor can be described as
follows. There is a "bottom" level, which is flush with the main
floor of the club, but readily distinguishable by embedded
lights. (DeMarco Dep., pp. 45-46). This bottom level is roughly
square, is constructed of wood, and can accommodate approximately
40-45 dancers. (DeMarco Dep., pp. 28-32, 46; October 12, 2003
Dep. of Luis Vega, p. 18 ("Vega Dep.")). Sitting on top of the
bottom level, and entirely contained within it, is a "second"
level. (Id.). Relative to the bottom level, this second level
is significantly smaller in square footage it can accommodate
between 15 and 25 people and is reached by climbing a step of
approximately one foot. (Vega Dep., p. 17). Like the bottom
level, the second level is "lit up", and is otherwise
distinguished by a colored band running its perimeter. (DeMarco Dep., p. 46; Vega Dep., p. 17). The "third" or "top"
level sits on top of the second level, and is similarly
constructed, with a light-colored band running its perimeter.
(Id.). It has the smallest square footage of the three levels,
and can hold approximately 6 people. (Id.).
Plaintiff's injury occurred on the second level of the dance
floor in the following manner. According to plaintiff, she and
Giarratana were dancing just after 2 a.m. when an unidentified
male patron bumped into her, causing her to lose her balance and
fall straight back. (DeMarco Dep., p. 55). Plaintiff testified
that when she landed on the ground, her legs were beneath her as
if she was "kneel[ing] down on the floor," with the top of her
feet facing down. (Id., pp. 55-59). In a sort of "domino"
reaction, the unidentified patron also fell down, landing on top
of plaintiff with her left leg still trapped under her.
Plaintiff's ankle fractured under the added weight. (Id.).
Realizing that she had been seriously injured, plaintiff yelled
for the man to get off her, which he did without delay. (Id.).
There is no dispute that plaintiff's injury was accidental.
Plaintiff remembered that between six and eight people fell at
the same time she did, including Giarratana. (Id., p. 61).
Although plaintiff considered the dance floor to be crowded at
the time she fell, so much so that "you [couldn't] see where the
[tiers] end[ed]", (Id., p. 64), plaintiff didn't see anyone
push, shove, or attack the man who fell on her. (Id., pp. 58,
65). Neither had there been any previous contact that evening
between plaintiff and the male patron; plaintiff did not talk to
him prior to the accident, and had no recollection of how long he
had been at the club that night. (Id., p. 63). In an affidavit signed on December 16, 2004, Giarratana
provided a somewhat different perspective on the accident.
("First Giarratana Aff."). She agreed with plaintiff that "[t]he
. . . Club seemed overly crowded" at the time of the accident,
but added that there "seemed to be a lack of control by the
bouncers and security, especially control over [the] crowd from
which the [unidentified] male patron . . . fell and crushed
[plaintiff's] left ankle." (First Giarratana Aff., ¶ 5). This
observation is subject to some dispute. A member of the Club's
security staff, Luis Vega, remembered that the crowd was "sparse"
at the time of the accident, at least as compared to a "crowded"
night, when there could be between 700 and 800 people at the Club
and as many as 18 members of the security staff working. (Vega
Dep., pp. 13, 16, 21, 27). Although there is no way to tell
exactly how many people were in the Club at the time of the
accident, a second member of the Club's security staff, Judith
Caserta, supported Vega's opinion, explaining during her
deposition that the crowd was "movable" (apparently an indication
of its controllable, and therefore small, size), and also
remembering that she was able to reach plaintiff "immediately"
after the accident. (October 22, 2004 Dep. of Judith Caserta, p.
31 ("Caserta Dep.")). As explained more fully, infra, the Court
need not resolve this issue.
In any case, Giarratana's first affidavit offers an additional
explanation for the accident, noting that it occurred after "a
shoving match, or fight, going on immediately before the
[unidentified] male patron" fell on plaintiff. (First Giarratana
Aff., ¶ 5).*fn2 Giarratana expanded on this observation in a
second affidavit signed on January 27, 2005 ("Second Giarratana
Aff."), where she notes that she "remember[ed] seeing [the male patron] prior to the injury . . . at the bar having alcoholic
drinks." (Second Giarratana Aff., ¶ 5(c)). It was also her
opinion that "[t]his man and his friends were evidently
intoxicated on the dance floor in proximity to . . . plaintiff",
a claim she supports by noting that the man had a "disheveled
appearance" and was behaving "abhorrent[ly]" at the time of the
accident. (Id.). According to Ms. Giarratana, despite this
behavior, "[n]o action was taken by Club employees against this
male patron prior to the incident." (Id., ¶ 5(d)). This
evidently surprised her, although there is no evidence that
either she or plaintiff complained of roughhousing, or visibly
intoxicated patrons on the night of the incident. (DeMarco Dep.,
Whatever its exact cause, after the accident plaintiff was
escorted outside by Giarratana and two employees of the Club,
Luis Vega*fn3 and Judith Caserta.*fn4 On the night in
question Vega was working the Club's main floor, where he was
able observe most of the dance floor, including the site of the
accident. (Vega Dep., p. 10). Although he was unable to describe
plaintiff's fall in any detail, he was one of the first Club
employees on the scene, and remembered helping another Club
employee, Judith Caserta, "pick? up" plaintiff after the fall
and escort her out of the club. (Id., pp. 10, 20; Caserta Dep.,
p. 21). Like Vega, Caserta was a member of the Club's security
staff, where she worked as a liaison for female patrons in need of assistance, whether because
they were intoxicated or otherwise. (Id., pp. 8-9). It was in
this role that she assisted plaintiff outside.*fn5
Once Vega and Caserta had removed plaintiff from the Club,
Caserta asked her to sign an "incident report". The incident
report contains a description of the accident, as well as
observations of plaintiff's subsequent behavior. According to
Caserta, Giarratana provided the accident description, (Caserta
Dep., p. 27), which can be found under the heading "Claimant's
description of incident in detail", and notes that "[claimant
was] pushed by other customers and slipped on [the] dance floor
causing her ankle to get hurt." (Incident Report, attached as Ex.
F to Cresci Verification). A similarly succinct statement appears
just above, under the heading "Nature of Injury", where the
report notes that plaintiff was "knocked over by other customers
[and] hurt [her] ankle." (Id.). Although plaintiff signed just
below both descriptions, at her deposition she disputed the
proposition that she "slipped". (DeMarco Dep., p. 75).
The report also contains a section for staff comments. Under
the heading "Employee's Description of Incident in Detail",
Caserta wrote that "while interviewing [plaintiff] she appeared
to be extremely intoxicated and slur[red] [her] words." (Incident
Report, attached as Ex. F to Cresci Verification). Vega's
comments support this observation, and also allude to a second
reason plaintiff fell, namely, "because she was wearing open
heel[ed] shoes." (Id.). As noted, supra, plaintiff vehemently
denies that she was intoxicated at the time of her fall; she also
testified that her shoes had nothing to do with the accident. (DeMarco Dep, pp. 75-78). By contrast, both
Vega and Caserta reaffirmed their comments at their depositions.
Vega testified that when he helped plaintiff outside, he
remembered her to be "slurring out words and walking off balance,
not walking normal." (Vega Dep., p. 10). Caserta testified that,
although plaintiff was intoxicated on the night of the accident,
she was not removed from the Club because "it is very hard to
pinpoint every intoxicated" customer, and in any case plaintiff
was not "badly stumbling" or a "troublemaker". (Caserta Dep., p.
Whatever the exact nature of plaintiff's mental state at the
time of the accident and the Court need not resolve that
question it is clear that approximately thirty minutes after
plaintiff was escorted out of the Club, Giarratana drove her to a
hospital in Bayonne, New Jersey. (DeMarco Dep., p. 79).*fn6
Hospital records show that plaintiff checked in to the emergency
room at 3:07 a.m. (First Giarratana Aff., ¶ 6; Emergency
Department Form, attached as Ex. G to Cresci Verification). They
also indicate that an x-ray was taken at about the same time, and
that plaintiff was diagnosed with an oblique fracture to her left
anklebone. After being told that the injury would require
surgery, plaintiff was admitted to the hospital. (Radiology
Report, attached as Ex. G to Cresci Verification). Surgery was
performed the next afternoon, during which pins and plates were
placed on the ankle. (DeMarco Dep., p. 81).
Plaintiff now brings this lawsuit to recover for her injuries. II. Discussion
Summary judgment is appropriate when "there is no genuine issue
as to any material fact and . . . the moving party is entitled to
a judgment as a matter of law." Fed.R.Civ.P. 56(c). Similarly,
summary judgment should be granted if, "after adequate time for
discovery," the non-moving party "fails to make a showing
sufficient to establish the existence of an element essential to
that party's case, and on which that party will bear the burden
of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). In deciding whether a genuine issue of a material fact
exists, a Court must "examine the evidence in the light most
favorable to the party opposing the motion, and resolve
ambiguities and draw reasonable inferences against the moving
party." In re Chateaugay Corp., 10 F.3d 944, 957 (2d Cir. 1993)
Keeping these principles in mind, the Court will consider
plaintiff's claims in order, beginning with her claim that the
Culture Club was negligent, either because it failed to
adequately control its patrons, maintained an inherently
dangerous dance floor, or allowed the club to become overcrowded.
The Court will then separately consider plaintiff's Dram Shop Act
claim. The parties have agreed that New York law applies to all
A. Premises Negligence
Like any other property owner, defendant Culture Club has a
duty to control the conduct of guests on its premises. D'Amico
v. Christie, 71 N.Y.2d 76, 85 (1987) ("Landowners in general
have a duty to act in a reasonable manner to prevent harm to
those on their property"). But this duty is limited in several
important respects; first to conduct that it has the opportunity
to control and of which it is reasonably aware, Marianne OO v. C & M Tavern, Inc., 180 A.D.2d 998, 1000 (N.Y.
App. Div. 3rd Dept. 1992); and second, to conduct that is
foreseeable or expected. Woolard v. New Mohegan Diner,
258 A.D.2d 578, 579 (NY. App. Div. 2nd Dept. 1999) (no duty "to
protect patrons against unforeseeable and unexpected assaults").
In this case, there is no doubt that the Club had the opportunity
to control the patron who injured plaintiff. This means that the
Club's duty to plaintiff, if any, will turn on (i) its awareness
of the conduct that caused her injury; and (ii) the
predictability of the accident. Plaintiff, of course, contends
both that the Club was aware of the impending danger, and that
the accident was entirely foreseeable.
Having carefully reviewed the record, the Court disagrees. To
begin, there is no basis for plaintiff's claim that the Club was
"reasonably aware" that the male patron who injured her was a
risk to other customers, whether because he was intoxicated or
otherwise. Garofalo v. Henrietta Italia, Inc., 175 A.D.2d 580,
581 (N.Y.App. Div. 4th Dept. 1991) (defendant restaurant
entitled to summary judgment on negligence claim where there was
no evidence prior to an altercation that the patron who caused
plaintiff injury posed a threat). For example, it is undisputed
that neither plaintiff nor Giarratana alerted the Club to the
fact that the patron was behaving erratically, even assuming that
he was. This both undercuts Giarratana's observation that the man
was behaving "abhorrent[ly]" and distinguishes this case from
those where New York courts have found awareness on the a basis
of a customer complaint. See, e.g., Butler v. E.M.D.
Enterprises, Inc., 689 N.Y.S.2d 575, 576 (N.Y.App. Div. 4th
Dep't 1999) (risk of harm to tavern patron was reasonably
foreseeable where patron had earlier informed tavern employees
that she had been threatened, and that she was fearful of being
assaulted). Neither is there any evidence that the Club should or indeed,
could have been independently alerted to the patron's allegedly
dangerous propensity. For example, there is no evidence that
other customers complained about the male patron on the night in
question, or more generally about the conditions at the Club.
Cf. Dollar v. O'Hearn, 248 A.D.2d 886, 887 (N.Y.App. Div.
3rd Dept. 1998) (plaintiff's testimony that hotel guests were
boisterous and rowdy was sufficient to raise question of fact as
to whether defendants should have been aware of potentially
dangerous situation existed). Nor is there evidence that the Club
had been the site of similar accidents, or any other dangerous
activity, at any point in the past. Stevens v. Spec Inc.,
224 A.D.2d 811, 813 (N.Y.App. Div. 3rd Dept. 1996) ("While there
was evidence that there had been three or four fights in the
nightclub within a 10-month period prior to the evening in
question, that evidence alone is insufficient to raise a material
issue of fact regarding defendants' breach of duty to control its
premises."). New York caselaw is clear on this point: absent
awareness, there can be no duty. Marianne OO, 180 A.D.2d 998,
at 1000; D'Amico, 71 N.Y.2d 76, at 85.
Moreover, by all accounts the accident occurred suddenly, which
both supports the conclusion that it was not foreseeable, and
calls into question what, if anything, the Club might have done
to prevent it. Lee v. Durow's Restaurant, Inc., 238 A.D.2d 384,
385 (N.Y.App. Div. 2nd Dept. 1997) (defendant restaurant
entitled to summary judgment on negligence claim where injury
caused by "spontaneous" incident). In this regard, to the extent
plaintiff contends that there were insufficient security staff
working on the night of her injury, she has failed to present a
triable issue by neglecting to introduce expert testimony on the
subject. See, e.g., Ricard v. Roseland Amusement and Development Corp., 215 A.D.2d 240, 241 (N.Y.App. Div. 1st
Dept. 1995) (motion to dismiss properly granted at the close of
trial where plaintiff failed to introduce the testimony of a
qualified expert in the field of security, leaving the jury to
speculate as to any possible deficiencies in security) (citations
For all of these reasons, the Court finds that the Club did not
owe plaintiff a duty to remove or control the patron who caused
B. The Tiered Dance Floor
Plaintiff next argues that the Club was negligent because the
"tiered" nature of the dance floor was inherently dangerous.
There are several problems with this theory. First and most
obviously, there is no expert testimony on the subject, and
plaintiff's attorney is not qualified to give his opinion on the
matter. Lavine v. Town of Lake Luzerne, 296 A.D.2d 793, 794
(N.Y.App. Div. 3rd Dept. 2002) (non-expert attorney's
opinion has "no probative value"). Nor is there any independent
support for the proposition under New York law. Nelson v. Cafe
Wienecke, Inc., 18 A.D.2d 392, 393 (1st Dept. 1963), aff'd
14 N.Y.2d 587 (1964) (well demarcated elevated dance floor not
inherently dangerous to patron using due care); Murphy v.
Conner, 84 N.Y.2d 969 (N.Y. 1994) (absent some specific defect,
smooth but "slippery" dance floor did not present a dangerous
In Nelson, for example, the First Department reversed a
judgment in favor of a cafe patron where the patron alleged that
she slipped from an elevated dance floor after her heel slipped
over the edge. Nelson, at 392-93. Noting that the limits of the
dance floor were clearly marked by a difference in color between
its surface and that of the surrounding floor, that there were tables in very close proximity
to the edge, and that there was no proof of prior accidents, the
court held that while it was doubtful that the construction of
the floor caused the patron's fall, even if it did, the
construction did not constitute a condition of foreseeable danger
to one using the floor with due care. Id. In this case, as in
Nelson, there is no dispute that the dance floor was well lit
and otherwise well defined at the time of plaintiff's accident;
it was therefore not inherently dangerous to a person using due
Even setting aside these problems of proof, this claim still
fails because plaintiff clearly assumed the risk of any inherent
danger. In New York, the doctrine of assumed risk rests on the
common sense proposition that, "by engaging in a sport or
recreational activity, a participant consents to those commonly
appreciated risks which are inherent in and arise out of the
nature of the sport [or activity] generally and flow from such
participation." Morgan v. State, 90 N.Y.2d 471, 484 (1997).
Here, there is no dispute that plaintiff was aware that the dance
floor was tiered; she had patronized the club on several prior
occasions and had spent much of the evening in question on the
dance floor. Under similar circumstances, where a plaintiff was
aware of the condition of which he or she complained, New York
courts routinely apply the doctrine of assumed risk to preclude
negligence claims based on a theory of inherent danger. See,
e.g., Lisok v. Club Exit, Inc., 790 N.Y.S.2d 223, 223 (N.Y.App.
Div. 2nd Dept. 2005) (plaintiff assumed the risk of slipping
and falling on confetti on dance floor where plaintiff had
knowledge of condition.); Theodorou v. Aphis Realty Inc.,
N.Y.L.J., Feb. 3, 2004, at 2 (N.Y. Sup. Ct. 2004) (plaintiff
assumed risk of slipping on flowers and paper money on dance
floor where she had knowledge of the allegedly negligent
condition); LaFond v. Star Time Dance & Performing Arts Center, 279 A.D.2d 509, 509 (N.Y.App.
Div. 2nd Dept. 2001) (tap dancing on slippery floor);
Nelson, 18 A.D.2d 392, at 393 (dancing in heels on elevated
dance floor). This Court will do likewise.
Finally, there is no evidence that the Club negligently allowed
its premises to become "overcrowded". The term "overcrowding" has
a specific application in New York negligence law, and requires a
plaintiff to "establish that `he [or she] was unable to find a
place of safety or that his [or her] free movement was restricted
due to the alleged overcrowding condition.'" Palmieri v.
Ringling Bros. & Barnum & Bailey Combined Shows, 237 A.D.2d 589,
589 (N.Y.App. Div. 2nd Dept. 1997) (quoting Benanti v. Port
Auth. of N.Y. & N.J., 176 A.D.2d 549 (N.Y.App. Div. 1st
Dept. 1991). Plaintiff has failed to establish either element
here. Indeed, it is undisputed that she could have left the dance
floor, or even the Club, at any point during the evening. These
options both preclude her overcrowding claim, and preempt the
dispute, noted supra, regarding the exact size of the Club's
crowd on the night in question. The Court also notes that
plaintiff has not alleged that she was injured because the Club
was overcrowded; rather, she alleges that her injury was caused
by an unruly patron.
D. Dram Shop Act
That leaves just plaintiff's claim under New York's "Dram Shop
Act", N.Y. General Obligations Law § 11-101. The Dram Shop Act
"create[s] a cause of action unknown at common law by allowing
recovery against a tavern owner for injuries caused as a result
of [a] patron's intoxication." Johnson v. Plotkin,
172 A.D.2d 88, 90 (N.Y.App. Div. 3rd Dept. 1991). In particular, the
statute provides that a party who unlawfully sells alcohol to a visibly-intoxicated person is liable for
injuries caused by reason of that person's intoxication. N.Y.
General Obligations Law § 11-101; N.Y. Alcoholic Beverage Control
Law § 65(2). Accordingly, to sustain a claim under the Dram Shop
Act, a plaintiff must present some evidence that an alcohol
vendor (i) sold alcohol to a patron (ii) while that patron was
visibly intoxicated. Id. The only evidence in this case
regarding the sale to or use of alcohol by the patron who injured
plaintiff comes from Gina Giarratana's second affidavit.
As previously noted, Giarratana "remember[ed] seeing [the
unidentified patron] prior to the injury . . . at the bar having
alcoholic drinks." (Second Giarratana Aff., ¶ 5(c)). Giarratana
also opined that "this man and his friends were evidently
intoxicated on the dance floor in proximity to . . . plaintiff",
a claim she supports by noting that the man had a "disheveled
appearance" and was behaving "abhorrent[ly]" at the time of the
accident. (Id.). This is simply not enough to present a triable
Dram Shop Act claim under New York law. Even assuming that the
male patron was intoxicated at the time of the accident, and
that he had been drinking at the bar earlier in the evening,
there is no evidence that he was served alcohol while he was
visibly intoxicated, either from the bar or otherwise. Nehme v.
Joseph, 160 A.D.2d 915, 916 (N.Y.App. Div. 2nd Dept. 1990)
("It is incumbent upon a plaintiff who charges a violation of the
Dram Shop Act to offer evidence that the party to whom liquor was
sold acted or appeared to be intoxicated at the time of the
sale."); cf. Dollar v. O'Hearn, 248 A.D.2d 886, at 886-887
(denying motion for summary judgment where hotel staff placed
pitchers of wine and other alcohol on tables). Absent evidence of
this essential nexus, the Court must grant defendant's motion on
this final ground. III. Conclusion
For the foregoing reasons, defendant's motion  is GRANTED.
The Clerk of the Court is directed to close this case.
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