Steven Fusco v. Den-Tex Corporation d/b/a Denny’s Restaurant, et al.

Type of Action:Negligent Security – Third-Party Criminal Act

Injuries Alleged:Traumatic Brain Injury

Name of Case:Steven Fusco v. Den-Tex Corporation d/b/a Denny’s Restaurant, et al.

Court:Jackson County, Missouri

Case No.:0816-CV29288

Name of Judge:The Honorable Sandra Midkiff

Special Damages:$91,127.17

Settlement Amount:Confidential

Date of SettlementOctober 2009

Plaintiffs’ Experts:Hugh Mills (Security Expert) and Brick Johnstone (Neuropsychologist)

Defendant’s Experts:Not disclosed

Attorneys for Plaintiffs:Scott Shachtman with the Sly James Firm in Kansas City, Missouri and Josh Perkins with Spooner and Perkins in Kansas City, Missouri.

Attorneys for Defendants:Tim Wolf and Russell Watters at Brown and James in St. Louis, Missouri

Description of the case:

The Facts

Beginning May 2004 through July 3, 2005, Bill Fahey was the nighttime manager of the subject Denny’s restaurant. During this timeframe, Mr. Fahey became aware of a group of illegal street racers whom loitered in the Denny’s parking lot on a regular basis. Since Denny’s had a policy against loitering in the parking lot, Mr. Fahey usually asked the group of loiterers to leave the premises. On at least five occasions, Mr. Fahey called the police to remove the street racers from the parking lot after they refused to leave.

Mr. Fahey understood that the street racers posed a threat of harm to the customers of Denny’s. He further understood that Denny’s had a policy against this behavior and took action to enforce the policy. That is why he chose to call the police to have the street racers removed from the parking lot in the past.

The subject Denny’s had at least two violent prior crimes and two cars stolen from its parking lot within the nine months preceding Mr. Fusco’s violent attack. Moreover, the local police department received at least 18 disturbance calls from Denny’s between January 2004 and July 3, 2005.

On July 3, 2005, the night of Steven Fusco’s attack, Eric Ainsley testified that there were approximately 35 to 45 street racers in the subject parking lot. At around 3:30 a.m., two female street racers (i.e. Brittany Barrett and Alissa) started fighting in the parking lot. Denny’s took no action to remove the street racers from its parking lot and/or to break up the fight between the two females. The Denny’s management and staff could see the group of street racers and the fight from inside the restaurant since there were a number of windows facing the parking lot. In fact, restaurant employee Holly Ealey testified that she saw the fight taking place.

Steven Fusco finished his drink, paid his bill and left the subject Denny’s. As Mr. Fusco was walking to his car, he saw two girls pushing and shoving each other in the parking lot. Eric Ainsley also saw the two girls fighting. The girls then split up and walked away from each other.

Mr. Fusco and his friend, Frank Alba, walked over to their cars and talked for 15 minutes or so while standing in the parking lot. Then, Brittani Barrett, one of the girls involved in the earlier fight, moved her car to a parking spot near Mr. Fusco and his friend. She got out of her car and walked over to Mr. Fusco and asked if she could stand next to him. They spoke for several minutes.

Shortly thereafter, Alissa, last name unknown, came over and started a second fight with Ms. Barrett. Eric Ainsley stood in between the girls and stopped Alissa from punching Ms. Barrett. Alissa said that “she was going to fight this girl” and Eric Ainsley said “no you are not”.

Then, Alissa threw Ms. Barrett up against the side of Mr. Fusco’s car and started a third fight. Again, Denny’s made no effort to call the police and/or to break up the fight. According to Brittani Barrett, Mr. Fusco did not touch either her or Alissa. Instead, Ms. Barrett’s friend, Trisha, pulled Alissa off. Mr. Fusco attempted to break up the fight by telling the girls to go fight somewhere else.

After the girls stopped fighting, Alissa then accused Eric Ainsley of touching her. She left and told four of her male street racer friends what had happened. Four males approached Eric Ainsley and asked what was going on. Mr. Ainsley said that he was not going to let the girls fight and the street racers responded “just let them fight.” Then, a 6’3 white male street racer started swinging at Mr. Ainsley.

The street racers then attacked Steven Fusco, who just happened to be in the wrong place at the wrong time. While Mr. Fusco and Mr. Ainsely were being beaten in the Denny’s parking lot, Brittany Barrett saw a male employee open the side door of Denny’s and yell out, “stop fighting”. That employee failed to call the police and took no further action to stop the violent beatings.

Mr. Fusco was beaten and violently kicked in the head for 10-15 minutes. Mr. Ainsley estimated that 25 to 30 minutes passed between the time of the first, second and third fights between the girls and the time that his altercation with the street racers ended.

After the street racers finished kicking Mr. Fusco in the head, they fled the scene. Mr. Ainsley ran inside of the restaurant and called 911 on his cell phone. The police arrived within four minutes of this call. Mr. Ainsley is the only person who has testified under oath in this case that he called and talked with a 911 dispatcher.

While Mr. Fusco was bleeding and convulsing in the parking lot, Denny’s nighttime manager, William Fahey, was busy in the kitchen helping cook the food. By the time that Mr. Fahey made it outside, it was too late. At approximately the same time that Mr. Fahey walked outside to check his parking lot, the ambulance and police arrived on the scene.

Liability

It was the Plaintiff’s position that the Defendants breached their duty of care owed to Steven Fusco to provide him with a reasonably safe parking lot. The evidence in this case established that:

• There were prior incidents of crime in the area of the subject Denny’s restaurant;

• That the subject Denny’s had at least 18 disturbance calls to the Kansas City, Missouri Police Department from January 2004 through July 3, 2005 (i.e. approximately 1 disturbance call every month);

• In late 2004, the subject Denny’s had at least two violent crimes committed on its property;

• That Defendants knew and/or should of known that a group of illegal street racers frequently hung out in the Denny’s parking lot late at night;

• That Defendants had previously asked the illegal street racers to leave the parking lot at Denny’s before July 3, 2005;

• That Defendants had previously called the police to have the group of illegal street racers removed from its parking before Steven Fusco was assaulted;

• That Defendants failed to remove the group of illegal street racers from the parking lot on July 3, 2005 before Steven Fusco was assaulted;

• That there were at least four (4) separate fights in the Denny’s parking lot on July 3, 2005;

• That Steven Fusco’s assault was foreseeable to the Defendants;

• That under the circumstances the Defendants owed Mr. Fusco a duty of care to provide him and other patrons with a reasonably safe parking lot;

• That Defendants failed to exercise ordinary care on July 3, 2005 by failing to remove the loiterers from the parking lot prior to Mr. Fusco’s assault;

• That Defendants failed to exercise ordinary care on July 3, 2005 by failing to call the police when the two females in the parking lot started fighting prior to Mr. Fusco’s assault;

• That Defendants failed to exercise ordinary care on July 3, 2005 by failing to call the police while Mr. Fusco and Mr. Ainsley were being assaulted;

• That Defendants failed to exercise ordinary care on July 3, 2005 by failing to post signs that made it clear that loitering was not permitted in the parking lot;

• That Defendants failed to exercise ordinary care on July 3, 2005 by failing to provide any security in its parking lot;

• That Defendants failure to exercise ordinary care resulted in Steven Fusco being assaulted and injured in its parking lot.