dissenting:
I agree with the majority’s view that the dispositive issue on this appeal “is whether the assailant’s conduct prior to the stabbing was such that Kentucky Fried Chicken should have been reasonably aware that its patrons were at risk from his conduct.” However, I disagree with the majority’s conclusion that, as a matter of law, no inference of foreseeable harm can be drawn from the conduct exhibited by the assailant. I believe that a reasonable trier of fact could find in favor of Maysonet and, therefore, summary judgment dismissing the complaint was inappropriate. For the reasons discussed below, I respectfully dissent.
Under New York law, the criminal act of a third person may be foreseeable if the third person acts in such a manner that an ordinarily prudent person would believe he poses a risk of harm. See D’Amico v. Christie, 71 N.Y.2d 76, 85, 524 N.Y.S.2d 1, 5, 518 N.E.2d 896, 899 (1987); Huyler v. Rose, 88 A.D.2d 755, 755, 451 N.Y.S.2d 478, *933479 (4th Dep’t 1982). Thus, as the majority states, the dispositive issue is whether the assailant’s conduct was such that it was foreseeable to Kentucky Fried Chicken that its patrons were at risk. The majority, however, concludes that the stabbing of Maysonet was so sudden and unexpected that, as a matter of law, it was not foreseeable. See Campbell v. Step/Lind Restaurant Corp., 143 A.D.2d 111, 531 N.Y.S.2d 576 (2d Dep’t 1988); Silver v. Sheraton-Smithtown Inn, 121 A.D.2d 711, 504 N.Y.S.2d 56 (2d Dep’t 1986). I disagree.
Each of the cases relied upon in reaching the majority’s conclusion is factually distinguishable from the present action. Both Campbell and Silver involved assailants whose actions, up until the exact moment of the attacks, were inoffensive and nonthreatening. The assailants exhibited no violent, menacing or intimidating behavior prior to the assaults. See Campbell, 143 A.D.2d at 111, 531 N.Y.S.2d at 577; Silver, 121 A.D.2d at 711, 504 N.Y.S.2d at 57. In addition, the assailants were themselves customers of the establishments in which the attacks occurred. For example, in Campbell, the plaintiff and another patron were buying one another drinks at a bar when suddenly plaintiff’s drinking companion shot him. Campbell, 143 A.D.2d at 111, 531 N.Y.S.2d at 577. Similarly, in Silver, “[a] sudden and unexpected altercation in a cocktail lounge of an inn between the plaintiff and another patron resulted in plaintiff’s being pushed into a shelf....” Silver, 121 A.D.2d at 711, 504 N.Y.S.2d at 57. Such attacks could not possibly have been anticipated.
Maysonet testified that for fifteen minutes prior to the attack his assailant was “crazy laughing” and “harassing” and “bothering” customers. Further, the assailant was not a patron of the restaurant. Clearly, the facts in the present case are distinguishable from cases where the assailants’ actions prior to the attack provided no indication, whatsoever, of a potential threat.
If this was the first instance where a loiterer had entered the Kentucky Fried Chicken restaurant, it might be a closer case. However, Kentucky Fried Chicken’s area supervisor testified that loiterers were frequently on the premises and routinely asked to leave. According to the supervisor’s testimony, failure to heed a request to leave the restaurant resulted in a call to the police. The record does not reveal whether, on the evening of the attack on Maysonet, the assailant was asked to leave the restaurant or whether the police were called. Based on these facts, it can reasonably be argued that the practice of removing loiterers was intended to protect Kentucky Fried Chicken’s customers from harm and, therefore, was a further indication that the attack on Maysonet was foreseeable. What other reason could there be for a long standing policy to “call the police.”
It is clear that a jury could reasonably find that Kentucky Fried Chicken was on notice of the presence of an unstable and potentially violent individual. Such a finding would impose a duty on the restaurant to take action to protect its patrons. See, e.g., Shank v. Riker Restaurants Ass’n, Inc., 28 Misc.2d 835, 837-38, 216 N.Y.S.2d 118, 120-21 (Sup.Ct.N.Y.County), aff'd, 15 A.D.2d 458, 222 N.Y.S.2d 683 (1st Dep’t 1961); De Gelorm v. Pelc, 52 Misc.2d 336, 337, 275 N.Y.S.2d 446, 447-48 (Onondaga County Ct.1966). Moreover, a jury could reasonably conclude, based on Kentucky Fried Chicken’s history of ejecting loiterers, that it was aware of the need and had the ability to protect its patrons from harm but, in this case, failed to provide such protection. See D’Amico, 71 N.Y.2d at 85, 524 N.Y.S.2d at 5, 518 N.E.2d at 899.
Thus, the issue of the foreseeability of the attack on Maysonet was not appropriate for resolution on a motion for summary judgment. The judgment of the district court, granting Kentucky Fried Chicken’s motion for summary judgment and dismissing the complaint, should be reversed and the case remanded for trial on the merits. Accordingly, I dissent.