Fontaine v. Ryan, 88 Civ. 1842 (VLB).

Citation849 F. Supp. 190
Decision Date13 December 1993
Docket NumberNo. 88 Civ. 1842 (VLB).,88 Civ. 1842 (VLB).
PartiesKimberly FONTAINE, Plaintiff, v. Kimberly RYAN, Stephen Sprouse, Stephen Sprouse Studios, Inc., Pinkerton's, Inc., Blanka Bernic, Jed Richardson and Keeble Cavaco & Duka, Inc., Defendants.
CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York



Stuart R. Shaw, New York City, for plaintiff.

Ralph F. DiSomma, Kelly & McGlynn, New York City, for defendants CSI, Stephen Sprouse and Stephen Sprouse Studios.

Timothy Gillane, Gallahan, Schepp, New York City, for defendant Pinkerton's.

Bernadette Harrigan, Morris, Graham, Westbury, NY, for defendant Blanka Bernic.

Jed Richardson, pro se.

Silfen & Glasser, New York City, for defendant Ryan.

Kerrigan & MacCartney, Nyack, NY, for defendant Keeble Inc.



This case, in which jurisdiction is based on diversity of citizenship, involves an altercation at a party in the course of which the defendant Kimberly Ryan ("Ryan") injured the plaintiff. In addition to Ryan, plaintiff sued the sponsor of the party, Pinkerton's, Inc. ("Pinkerton's") which had been retained to provide security at the affair, and other defendants.

By Report and Recommendation dated September 2, 1993 United States Magistrate Judge Leonard Bernikow recommended that motions for summary judgment under Fed. R.Civ.P. 56 be granted for plaintiff against defendant Ryan and that such motions be granted in favor of defendants with respect to the other claims. I approve and adopt the Report and Recommendation of the Magistrate Judge, which is attached to and made a part of this memorandum order.1 The comprehensive factual and legal analysis of the Magistrate Judge will not be repeated here; familiarity with it is assumed.

Plaintiff's objections are entirely devoid of merit. There is no evidence suggesting that the sponsor of the party, Pinkerton's, or anyone other than defendant Ryan caused, or could reasonably have been expected to prevent, plaintiff's injuries resulting from Ryan's attack.


In granting summary judgment for defendants other than Ryan, the Magistrate Judge did not determine the scope of the duty of Pinkerton's toward the party sponsor in the absence of any detailed or written agreement between them. The legitimate interests of the parties — an important guide to contract interpretation where no document or explicit oral agreement concerning the matter exists — would suggest that security guards were paid by the sponsor of the party to protect that sponsor, and absent advance assurances of protection of invitees, owed no duty to the invitees.

Protection of the sponsor would logically include prevention, if possible, of the kind of incident giving rise to this lawsuit. Such an objective of the sponsor's agreement with Pinkerton's does not, however, suggest that a purpose of the agreement was to create a duty enforceable by invitees. There would have been no reason for the sponsor and Pinkerton's to agree to be liable to an invitee if an injury occurred at the affair notwithstanding whatever steps Pinkerton's might have been able to take to avoid such an incident, except if availability of guard protection was announced in order to encourage attendance (an event not suggested to have occurred here).

Absent explicit or inferable agreement to undertake responsibility to third parties (not merely to protect them for the benefit of the directly contracting parties), a third party beneficiary agreement enforceable by the third party does not exist. See Strauss v. Belle Realty Co., 98 A.D.2d 424, 469 N.Y.S.2d 948, 950 (2d Dept.1983), aff'd 65 N.Y.2d 399, 492 N.Y.S.2d 555, 482 N.E.2d 34 (1985); Note, 57 Colum.L.Rev. 406 (1957); Special Comm. on Consumer Aff., "Remedies Short of Consent or Litigated Orders for Violation of the Federal Trade Commission Act," 32 Rec. Ass'n Bar City NY 622 (1977).

If a contract is silent with respect to such a potentially far-reaching obligation not implicit in the parties' arrangement, and there is no basis for inferring a duty, the duty may properly be held to be absent based on the language of the contract. Otherwise the result would be one of "trapping parties in surprise contractual obligations that they never intended." TIAA v. Tribune Co., 670 F.Supp. 491, 497 (S.D.N.Y.1987) (Leval, J.). This would have ill effects on the predictability of transactions, whereas "stability and predictability in contractual affairs is a highly desirable jurisprudential value." Sabetay v. Sterling Drug, 69 N.Y.2d 329, 336, 514 N.Y.S.2d 209, 213, 506 N.E.2d 919, 922 (1987).

If agencies such as Pinkerton's were liable for damages should injuries occur at an affair through no fault of theirs and despite efforts to provide security, the cost of such guard service would increase, and the ranks of those able to obtain such service would obviously be lessened with no gain to the contracting parties or the public interest.2


Pinkerton's has filed its own objections complaining that the Magistrate Judge's Report and Recommendation failed to limit Pinkerton's duty to the sponsor with whom they contracted. As a prevailing party securing summary judgment in its favor, Pinkerton's appears to lack standing to pursue such objections, which need not in any event be reached. See In re DES Litigation, 7 F.3d 20 (2d Cir.1993); see also California v. Rooney, 483 U.S. 307, 107 S.Ct. 2852, 97 L.Ed.2d 258 (1987); Black v. Cutter Laboratories, 351 U.S. 292, 297, 76 S.Ct. 824, 827, 100 L.Ed. 1188 (1956).



(Sept. 2, 1993)

(As Corrected Sept. 22, 1993)

To the Honorable VINCENT L. BRODERICK, United States District Judge:

BERNIKOW, United States Magistrate Judge.

This diversity action is based on an assault plaintiff sustained at the hands of defendant Kimberly Ryan at a party given by defendant CSI, Inc. Now before the court are the summary judgment motions of various defendants. Plaintiff has cross-moved for summary judgment against defendant Ryan and Pinkerton's Inc., and opposes the motions of the other defendants.1


On September 17, 1987, defendants Stephen Sprouse, a New York fashion designer, and Stephen Sprouse Studios, Inc., (collectively CSI Associates, hereinafter "CSI") gave a party to celebrate the opening of Sprouse's new store. CSI hired defendant Keeble Cavaco Duka, ("Keeble"), a public relations, advertising and special events firm, to "produce" the party, at about which 1,000 guests were expected. Among other things, Keeble hired the caterer and, to provide security, defendant Pinkerton's, Inc. ("Pinkerton's").

Pinkerton's supplied five guards, all of whom were stationed inside the store where the party was held. The guards were dressed in what Pinkerton's terms its "soft look" uniform, consisting of a navy blue blazer, grey slacks and a blue and gray striped tie. Two guards were stationed in the foyer just inside the front door, one was located on the first level, one on the second level and one on the third. Keeble also hired four "bouncers" unaffiliated with Pinkerton's to maintain crowd control outside. Four Keeble employees were located at the front door to admit guests and seven other Keeble staffers were deployed throughout the store. Keeble rented six "walkie-talkies" so that its employees stationed in various parts of the store could communicate with each other. Keeble's Vice-President and the person responsible for planning the party, Julie Mannion, testified at deposition that no Pinkerton guard was issued a walkie-talkie. Mannion 67-68.2

The party began at 9:00 p.m. Champagne, milk, Perrier, Coca-Cola, and food were passed around on trays by waiters and waitresses. Two bars, one on the main level and one on the second floor, operated until 10:45 p.m. The last guest left between 11:30 and 11:45 p.m.

Plaintiff believes that she arrived at the party at about 11:00 p.m. She had not received an invitation; instead, she accompanied Rachel London, a clothing designer who had been invited and whose fashions she was modeling at Ms. London's request. Earlier that day, plaintiff and an ex-boyfriend, defendant Jed Richardson, had worked on a song that the two were recording together. Although their relationship was purely business by September of 1987, plaintiff and Richardson had been personally involved for a time during the late winter and early spring of that year. Guenther 104, 109. Some time after the two finished work on September 17, plaintiff went to Ms. London's apartment and then she and Ms. London left for the party.

When they arrived, plaintiff said, the party was "really crowded." Guenther 128. She got some champagne and started chatting with people that she knew. At about 11:30, she noticed Jed Richardson walking by and called out his name. When he didn't respond, plaintiff "ran over to him" so that she could introduce him to the man that she had been talking with, Ed Steinberg, a video producer. Guenther 134. Plaintiff said that Richardson continued to walk towards the front of the store "like he didn't know" her, as if "he was trying to run away or something." Guenther 135.

Plaintiff approached Richardson and said "hi" and kissed him on the cheek.3 At that point, defendant Ryan, with whom Jed had had a sporadic romantic relationship, appeared from behind Richardson and greeted plaintiff with "Hello, bitch." Guenther 138. Ryan tossed her champagne in plaintiff's face and then struck her above the eye with the glass, cutting plaintiff with the broken glass from just above her eyebrow down to her mouth. According to witnesses, the entire encounter, from the time that plaintiff heard Ryan's epithet until the glass hit her, lasted between one and five seconds.4 See, e.g., Guenther 141 (one to two seconds), Ryan 112, (three to five seconds), Richardson 49, 88 (two to five seconds), Steinberg 44 (three to four seconds).

Plaintiff wiped the...

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