Bars may be liable for bad bouncer behavior 

This week’s question comes from Brian L. from Oakland, who asks:

Q: “I was out with some friends the other night and we went to a few bars. We were inside a club and my friend got intoxicated and hit on this girl. She went to the bouncer and told him that my friend was getting out of hand. The bouncer came over and told him to leave. I left with him and he realized he had left his coat in the bar and went back in to try and grab it. The bouncer saw him, grabbed him by the shirt and pushed him outside. While we were on the sidewalk my friend was swearing at the bouncer. The bouncer started coming at him and I tried to get my friend to leave. I turned to tell the bouncer we were leaving and he threw a punch at my friend but it hit me and broke my nose. The cops wouldn’t do anything. Is the bar or the bouncer legally responsible?”

A: Brian, unfortunately, what happened to you has happened before. I have handled a handful of similar cases. These cases are a type of premises liability action often referred to negligent security or excessive force. The bouncer can be held liable for his own conduct for committing battery, which is the harmful or offensive, unprivileged, physical contact with another. Someone is entitled to use force only if they are in reasonable fear of bodily harm or death. Then they are only permitted to use the minimum amount of force necessary to repel that force against them./p>

Here, you had in no way threatened him with bodily harm nor had your friend, so there would be no reason he could use to justify the use of physical force — offensive words alone do not justify the use of force./p>

As to the bar owner, in order to establish the liability of the employer for injuries inflicted by his employees, it is sufficient to prove merely that excessive force was applied and that the employee was acting within the general scope of his employment. The front door of the barroom is not the dividing line between liability and nonliability on the part of the bar for the tortious acts of his employees./p>

We call the liability of an employer for the acts of an employee vicarious liability. The question of vicarious liability of the employer does not hinge on whether the wrongful act itself was authorized but whether it was committed in the course of a series of acts of the employee that were authorized by the employer. To create the liability of the employer, it is not necessary that an assault by his employee should have been made for the purpose of performing a task specifically assigned so long as the assault took place during the course of the employment./p>

In this case, the doorman was charged with the responsibility for regulating the flow of patrons into the bar. The remarks made by your friend did not justify the use of physical force by the bouncer. It would appear that the bouncer used unjustifiable force by escalating a merely verbal confrontation into a physical altercation./p>

The bar may be held liable for failing to properly hire, train and supervise its employees. It is apparent that the escalation of this confrontation into violence was the improper conduct of the security staff. Under no circumstances should the security employees resort to physical violence unless the safety of patrons or the employees requires the use of such force. It is apparent that these employees were improperly trained and supervised with respect to these types of confrontations. With these types of disturbances, a call for police assistance is the proper response. However, on the night in question, police were not called until you were hit./p>

Next week in this column, I will conclude the discussion as to why there is responsibility on behalf of the club owner. In the meantime, since the police will not act, I suggest that you contact a civil-trial lawyer to analyze the facts in more detail to see if you have a case or not. They will review the evidence, speak to any witnesses you can identify and determine if you have a case. Since trial lawyers work on a contingency, they will not take a case that does not have merit./p>

Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to help@dolanlawfirm.com.

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