Bencivenga v. J.J.A.M.M., Inc.

609 A.2d 1299 (1992)

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Nature of the Case

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Facts

D provides music, dancing, and a soda bar for persons 18 to 21 years of age on the second floor of a building that has an adult bar on the first floor. D employs personnel to maintain order and 'provide safety to the patrons.' P, his brother, and three friends went to D. The dance floor was very crowded -- 'packed elbow to elbow.' After dancing, P and his companions went to the soda bar area to cool off. Another male patron walked by a female patron and pinched her. The female turned and accused P. P denied he had pinched her. Later, the female again made the accusation, and P responded by saying he was sorry, but he had not done it. A few minutes later, two people coming from the stage and two others from sides of the dance floor, met next to the stage. None of the four wore the dress of the bouncers. They began to move towards P. As the four reached P, who had his back to them, one said, 'Why'd you pinch my girl's ass?' As P turned, the speaker punched P in the face. P dropped to the floor bleeding profusely from the nose. Although the bouncers on the stage had a clear view of the floor and the four men crossing it, none interceded before or after the assault, and none offered any assistance. P went to the bathroom to deal with the injury, which was quite severe. The bouncers arrived in the bathroom, and P asked that a rescue squad and the police be called. P also asked for a towel. Instead of offering assistance, they took P by the arm and ushered him and his brother out of the building. A bounder when asked why P's attacker also had not been removed from the club, the bouncer responded, 'The other guy's got juice . . . .' P needed surgery to repair his nose. The operating doctor described the septum as so badly damaged it does not provide adequate stability for the nose. Plaintiff's nose contains a scar and a permanent deviation to the right as a result of the incident. P sought damages from D and the unnamed intentional tortfeasor, as well as from unnamed employees of the club. P got the verdict and D appealed contending the trial court erred when it refused to instruct the jury to determine the relative percentages of fault of P, the fictitiously named and never identified intentional tortfeasor who assaulted plaintiff, and D.