Court of appeals reinstates lawsuit against Denny’s for injuries to woman attacked by other customers

by John Chapman

One night in 2008, Kelly Gray was a customer at a Denny’s in Syracuse, New York, when she was violently attacked by a group of other customers. According to Gray, prior to the attack, her assailants were “visibly intoxicated” and had been acting in a “disruptive, aggressive and violent” manner. Gray alleges that she had complained to restaurant employees, but they did nothing to quiet the group. Ultimately, she felt moved to approach the table herself, which led to the attack. According to Gray, the other customers “violently assaulted and attacked [her] by striking her in the back of the head, her jaw, her stomach, and other parts of her body, and kicking her while she lay on the ground.”

Gray sued Denny’s for the incident and the trial court dismissed the case. However, New York’s Court of Appeals for the Second Circuit has now reversed that decision and ruled instead that Gray presented sufficient evidence to take her case to a jury.

In order to hold Denny’s responsible, Gray was obligated to present evidence suggesting that the criminal assault was foreseeable to Denny’s. Gray presented that the events at issue occurred during the so called “bar rush” that followed the closing of local bars, a time when customers coming to Denny’s were frequently loud and profane. She also presented evidence that Denny’s internal policies recognized profane language as “work place violence.” She also submitted police reports of work place violence involving actual physical assaults occurring at the restaurant in the year preceding her assault.

Gray was also able to point to evidence that Denny’s itself believed that boisterous customers presented a danger of violence to which its employees needed to respond in order to provide a safe environment for its workers and customers. For example, Gray pointed to Denny’s training materials on work place violence prevention that characterized “disruptive” guests as the largest category of “work place violence” incidents, and identified training “to recognize and deal with disruptive guests” as significant factors in reducing work place violence. Gray pointed to internal Power Point presentations created by Denny’s in 2007 indicating that Denny’s (1) foresaw increases in work place violence, including assaults between guests during the late night weekend bar rush period; (2) undertook a cost-benefit analysis comparing the loss of revenue from late-night restaurant closures to the costs of lawsuits stemming from work place violence; and (3) considered both additional work-place violence prevention training for its employees and hiring security guards.

Gray contended that Denny’s breached its duty by not interceding to halt her future assailants’ loud and profane conduct as required by Denny’s own Policy and Procedure Manual, and by failing to create and implement a Workplace Violence Management Program for its employees. According to Gray, Denny’s policy manual required managers to ask disruptive guests to act properly and, if necessary, to leave the restaurant. Gray alleges that she asked her server to tell the rowdy customers to quiet down, but that neither her server nor any other Denny’s employee took any action.

The court of appeals held that “on this record, a reasonable juror could find that Denny’s was aware of particular risks caused by disruptive customers, and failed to take action to reduce those risks.” Because the evidence was sufficient to raise questions of fact that need to be decided by a jury, the court of appeals reversed the judgment that had been entered in favor of Denny’s.

Inadequate Security and Negligent Security Lawsuits

Business and property owners have an obligation to provide a reasonably safe environment for their guests and customers. Generally speaking, a business or property owner is not liable for injuries or death resulting from a crime just because it was committed at their business or on their property.

However, if there was something about the crime that made it foreseeable, if there has been a pattern of such crime in the area, or if the nature of the business makes it particularly susceptible to such a crime, the law will impose a duty for the business or owner to at take reasonable security measures to prevent or deter such crime. Inadequate security or negligent security lawsuits typically involve the failure of business proprietors, such as mall and shopping center operators, apartment and residential rental housing owners, hotels, motels, restaurants and others, to take reasonable security measures that should have been taken under the circumstances for the protection of their guests and customers.

If you or someone you know has been injured or if you lost a loved one as a result of a crime, a property owner, apartment complex, landlord, club, bar, restaurant or shopping center may be partially responsible. You need an experienced and knowledgeable law firm that can guide you through the legal process and obtain maximum compensation on your behalf. Our lawyers approach every case with the assumption it will be tried to a jury. Whether it’s hiring the right experts, obtaining the necessary records, interviewing the key witnesses or helping our clients get the medical care they need, our meticulous attention to detail ensures that our clients achieve maximum value for their claim.

In addition, Heygood, Orr & Pearson is AV-rated, the highest legal and ethical rating available from the leading law firm rating service. Our partners Michael Heygood, Jim Orr, and Eric Pearson are all Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization. Mr. Heygood and Mr. Orr are additionally Board Certified in Civil Trial Advocacy Law by the National Board of Trial Advocacy. Our partners been voted by their peers as “Super Lawyers” in the state of Texas for several years in a row.*

Contact our attorneys for a free consultation to learn more about your legal rights. You can reach us by calling toll-free at 1-877-446-9001, or by filling out the free case evaluation form located on this page.


Michael Heygood, James Craig Orr, Jr. and Eric Pearson were selected to the Super Lawyers List, a Thomson Reuters publication, for the years 2003 through 2013.

by John Chapman

John Chapman is a licensed attorney with experience in complex commercial litigation (including securities fraud, RICO, shareholder oppression, and derivative actions) and personal injury litigation.