Patrick J. Cooney Obtains Defense Verdict in Labor Law Case in Queens County 

(December 12, 2021) Following a two-week trial, GVK Partner, Patrick J. Cooney, obtained a defense verdict in Supreme Court, Queens County before the Hon. Darrell Gavrin on behalf of our client Con Ed, the sole defendant. The accident occurred when the 40,000-pound excavator plaintiff was operating, slid into a creek and began to sink before the plaintiff could escape. Plaintiff alleged lumbar and cervical herniations, as well severe PTSD because of the incident.

Plaintiff brought a NY State Labor Law action against Con Ed, alleging a failure to provide a safe place to work and failing to supervise the means and methods of the plaintiff's work. Specific Code sections under LL241(6), the Industrial Code, were submitted to the jury for consideration. The first section cited Con Ed's alleged failure to provide a spotter. The second, failure to provide secure footing for the excavator and the third section alleged a failure to properly shore the excavation. On behalf of Con Ed, Pat argued that a spotter was not required for the work being performed and the use of a spotter in an area where the boom of an excavator could swing 360 degrees coupled with the fact that the excavator was on unsecured cribbing weighing hundreds of pounds made the use of a spotter too dangerous. Pat also maintained that the excavator should have been operated in a perpendicular direction to the creek so as to permit the plaintiff to power out when the excavator started to slide. It was further contended that there were sufficient materials available to build a platform for the excavator if the plaintiff felt the footing was unstable. Lastly, Pat argued that the accident was caused 100% by operator error in placing the excavator parallel to the creek and walking it across wet, slippery timbers. The Health and Safety Plan and the Operator's Manual also provided that if an operator felt the area was not safe, he should not proceed until any alleged danger was corrected.

Plaintiff demanded 6.5M which was reduced to 4.5M during the trial. 500k was offered. Following a full day of deliberations, the jury found the workplace was safe and returned a defense verdict.

Source: Gallo Vitucci Klar LLP

Howd and Lundorf Wins Defense Verdict in Zip Line/Minor Traumatic Brain Injury 

(December 4, 2021) Howd and Ludorf partners Chris Vossler and Rachel Bradford successfully defended a minor traumatic brain injury case involving a claimed zip line- related injury. In summations, plaintiff counsel asked for a multi-million dollar award of compensatory damages.

The case involved the plaintiff’s use of a zip line that was designed to allow the user to let go, and drop intentionally into the water below. The plaintiff claimed that she was struck in the face by the water as she entered it, and that the force of the water caused her to sustain a concussion. Plaintiff alleged negligent training, negligent supervision of employees, use of inadequately trained employees, failure to warn customers of risks and failure to inspect the activity. Liability was contested, as were all damages claims given the nature of the claimed injury. Both sides presented multiple experts to address liability and damages issues. Randy Smith of Vestals Gap and Rich Klanjscek of Sea Fox were testifying defense experts, as was Dr. David Faust of URI. Plaintiff’s expert was Brian Avery.

After 3 weeks of trial in November 2021, a Covid-challenged period, the Hartford CT Superior Court jury found that the park operator was not negligent and returned a verdict for the defense.

Source: Howd & Lundorf, LLC

Rhodes, Hieronymus, Jones, Tucker & Gable, PLLC's Nathan Clark Inducted as a Fellow of the American College of Trial Lawyers

(October 4, 2021) - Rhodes, Hieronymus, Jones, Tucker & Gable, PLLC is proud to announce that Nathan Clark has now been inducted as a Fellow of the American College of Trial Lawyers, one of the premier legal associations in North America.

Nathan’s induction ceremony took place during the recent Annual Meeting of the College in Chicago, Illinois. 

Founded in 1950, the College is composed of the best of the trial bar from the United States, Canada and Puerto Rico. Fellowship in the College is extended by invitation only and only after careful investigation, to those experienced trial lawyers of diverse backgrounds, who have mastered the art of advocacy and whose professional careers have been marked by the highest standards of ethical conduct, professionalism, civility and collegiality. Lawyers must have a minimum of fifteen years trial experience before they can be considered for Fellowship. Membership in the College cannot exceed one percent of the total lawyer population of any state or province. There are currently approximately 5,800 members in the United States, Canada and Puerto Rico. The College maintains and seeks to improve the standards of trial practice, professionalism, ethics, and the administration of justice through education and public statements on independence of the judiciary, trial by jury, respect for the rule of law, access to justice, and fair and just representation of all parties to legal proceedings. The College is thus able to speak with a balanced voice on important issues affecting the legal profession and the administration of justice.

Nathan is a partner in the firm and has been practicing out of Tulsa, Oklahoma for nearly twenty five years. Nathan is an alumnus of Baylor Law School and regularly practices law in both Oklahoma and Kansas. - (Rhodes, Hieronymus, Jones, Tucker & Gable, PLLC)

Security in Bars and the Foreseeability of Assaults 
Donald Decker CPP: Exigent Forensic Consulting
Police Practices and Premises Security Expert

Security in bars and the foreseeability of assaults. As the hospitality industry emerges from the COVID-19 shutdown, it once again will be faced with the issue of dealing with the foreseeability of crime, most notably assaults, inside and outside alcohol-service establishments. These establishments include bars, taverns, restaurants, nightclubs and other venues. The neighborhood bar provides a place for friends to meet and socialize. Taverns and restaurants provide customers a place to eat. Nightclubs provide a location for entertainment and for those that want to dance. The common issue at all these venues is the responsible service of alcoholic beverages. For the purpose of brevity in this article, the previously mentioned alcohol-service establishments will be referred to as bars.

Bars can be found inside casinos, hotels, and motels. Catering halls, entertainment and event venues, and fraternal and social clubs can contain or otherwise operate like a bar. The locations where assaultive behavior can occur not only includes inside the establishment, but outside the establishment including any parking facility dedicated specifically to those that patronize the establishment.

Bars have a responsibility to make their premises reasonably safe and secure for patrons and employees no matter how much alcohol patrons may drink. Assaultive behavior can occur between patrons, or bar staff (i.e., managers, waiters, waitresses, bartenders, barbacks or security personnel) can be assaulted by patrons. In some instances, patrons can be assaulted by bar personnel (e.g., overzealous security guard). The responsibility for reasonable safety and security of a patron and employee extends to all parts of the premises which the patron or employee may be reasonably expected to go and to those parts of the premises that the bar has reasonably led them to believe they can go.

A proper way to determine if the security on a bar premises is adequate is to analyze the risks associated with the hazards, also known as a threat assessment, in conjunction with the vulnerabilities, if any, of the bar premises. The former is effectively achieved by a proper analysis of the history and extent of criminal activity on and/or near the bar premises. The latter, also known as a vulnerability assessment, is effectively achieved by a proper analysis of the security measures present on the bar premises.

By conducting proper threat and vulnerability assessments, crime foreseeability can be addressed. Crime foreseeability is the reasonable expectation of a criminal incident occurring. If a criminal incident is not foreseeable, it does not mean that the criminal incident will not occur. It means that the criminal incident was not reasonably foreseeable at that time, at that location, and under those conditions. Absolute security is not reasonable and not required, but providing reasonable security is.

In recognition of the responsibility to make a bar premises reasonably secure, security measures are implemented to comply with the standard of care for providing for the reasonable security of a bar premises. Sometimes just the presence of a bar employee is all that is required to provide reasonable security. Sometimes the absence of a security measure, identified as a result of conducting a proper analysis for crime foreseeability, results in inadequate security that created the vulnerability for a criminal incident to occur. The security measures that are implemented to provide reasonable security at a bar are:

• Active security measures are security measures that are the result of direct human involvement, often exemplified by the presence of an identifiable security guard and active monitoring of surveillance cameras, also known as CCTV.
• Passive security measures are security measures that include the concepts of Crime Prevention Through Environmental Design, also known as CPTED. An example is the access control measures implemented by a doorman at the entrance of a bar. The doorman may have post orders that reflect policies and procedures, which are further discussed in the remainder of this article below, where underaged or previously banned patrons are prohibited from entering the bar.
• Procedural security measures are the actions of bar personnel properly addressing the security of people, information and property while performing their duties.

Procedural security measures often reflect the policies and procedures of the bar. Bar personnel should be adequately trained in the bar’s policies and procedures. It should be remembered that a bar may not have policies and procedures that address a specific incident, but a bar employee still implements a proper response.

Procedural security measures are often implemented by those not specifically dedicated to be a security guard, often referred to as a bouncer. An example of such a procedural security measure is a bartender observing an improperly behaved patron at the bar and promptly remediating the patron’s behavior through verbal intervention or contacting management to address the behavior. If the patron’s behavior conspicuously persists; the patron is asked to leave the bar or the police are contacted, if the patron refuses to voluntarily leave, to have the patron removed. Notably, if a patron's actions are an imminent physical threat to others, prompt actions to properly remove such a patron should be implemented.

Security personnel should be properly hired and trained. Often the required licensing and training of a security guard is identified by local and/or state government. Security personnel, along with other bar personnel not including hired law enforcement personnel, have the same rights as a private citizen and must conduct themselves as such. Any physical actions involving others must be reasonable, including the proper ejection of fighting patrons.

Bars make up a significant part of the hospitality industry and have a responsibility to provide reasonable safety and security for its patrons and employees. Reasonable security should be present, so those that work at and patronize bars are reasonably secure on the premises. (Exigent)