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Appellate Division Holds Arm Wrestling Outside Scope of Employment

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© Peter J. Weishaar and Rochester Law Review, 2013 – 2018.

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Image by Ryan McGuire from Pixabay 

From time to time, a case in the Advance Sheets piques my curiosity.  Gehrke v. Mustang Sally’s Spirits and Grill, Inc., __ A.D.3d __, 2020 NY Slip Op. 00741, is one of them.

As the trial court noted in her decision denying summary judgment: “This is an arm wrestling in a strip club case.”  I did not know there were such cases, but apparently there are, and this is one of them.  I was curious about why someone would pursue such a case to begin with, let alone pursue an appeal, and I ended up looking up the appellate record online to find out more about this case.

The plaintiff was a regular at “Tiffany’s Cabaret,” and one afternoon after about three hours of drinking, he talked the bartender into arm wrestling.  After about ten seconds, there was a “pop” and his arm went limp.  The bill of particulars indicates that he had a displaced right humeral shaft fracture, requiring surgery and hardware to repair.  In other words, he broke his funny bone.  But, the injuries were not funny.  A displaced fracture requiring surgery is no laughing matter.

Plaintiff asserted a cause of action for negligence based on theories of respondeat superior and premises liability.  Respondeat superior is a legal doctrine whereby an employer is liable for the negligent acts of his or her employee if the acts occur within the scope of employment.  “Tiffany’s Cabaret” moved for summary judgment, seeking dismissal of the complaint on both theories of liability, claiming that its employee was acting outside the scope of employment at the time of the incident and also claiming that it did not owe plaintiff a duty of care under the theory of premises liability.

The trial court denied the Cabaret’s motion on both grounds, holding that it owed its customer a duty of care on the premises liability claim, and determining that factual issues exist on the respondeat superior claim.  The trial court also noted that, if a jury found the arm wrestling to be within the scope of the bartender’s employment, “a notice requirement is obviated because, per respondeat superior, Defendants created the alleged dangerous condition of arm wrestling.”

The Appellate Division reversed on the respondeat superior issue.  While noting that it is generally a question for the jury whether an employee is acting within the scope of employment, “an employer is not liable as a matter of law under the theory of respondeat superior ‘if the employee was acting solely for personal motives unrelated to the furtherance of the employer’s business.'”  Id. (quoting Mazzarella v. Syracuse Diocese, 100 A.D.3d 1384 (4th Dep’t 2012)).  The Appellate Division concluded that the defendant established that the employee’s act of arm wrestling plaintiff was not within the scope of his employment and that plaintiff failed to raise a triable issue of fact in response.

The Appellate Division also reversed on the premises liability issue, resulting in the dismissal of the complaint in its entirety.

There are perhaps several morals of this story, and I will let you draw your own conclusions about that.  But, one thing I would like to point out to my readers is that this case demonstrates that not all serious injuries are the result of actionable negligence.  It is unfortunate that the plaintiff broke his arm.  But, Tiffany’s Cabaret was not legally responsible for causing this injury.

Part of my practice has included representation of plaintiffs seriously injured by the negligence of others.  In fact, the very first case I was assigned when I started as a new associate with the firm 24 years ago was a premises liability case where a little boy was injured in a fall through a wide-open stairwell in an elementary school.  Before we decide to take any personal injury case, we consider not only the nature of the injuries, but also whether or not somebody else’s wrongful conduct caused the injuries.

Did you know?  Since our firm began in 1979, we have represented clients seriously injured by the negligence or intentional misconduct of others, whether involving motor vehicle accidents or other wrongful conduct.  As noted above, this has also been part of my litigation practice since I joined the firm in 1996.  If you or a someone you know is ever seriously injured by another person’s carelessness, you can always contact us to talk about your rights and available options.  Information about our Personal Injury Practice may be found here.  Hopefully, you’ll never need us for that.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.



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