By Samantha Dos Santos and David Muncy

In Maryland, courts have recognized that an establishment’s personnel security, or “bouncers,” can be within the scope of their employment if they commit an assault or battery against a customer of the establishment. Market Tavern v. Bowen, 92 Md. App. 622 (1992). The Market Tavern court rejected the notion that employment ends the moment an employee decides to commit an intentional tort, thereby opening the door for customers to hold establishments responsible for assaults and batteries committed by their bouncers. This holding draws a distinction from other Maryland cases in which courts have held that conduct that is “unprovoked, highly unusual, and quite outrageous” suggests that an employee was acting outside the scope of his or her employment. See, e.g., Sawyer v. Humphries, 322 d. 247, 257 (1991) While the holding in Market Tavern allows Plaintiffs to plead assault and battery counts against an establishment, deciding how to plead a security-related case requires additional consideration and caution due to the various policy exclusions that could jeopardize insurance coverage.

When a customer walks into an establishment, restaurant, or bar, that customer expects to be treated with dignity and to be free from any unwanted physical touching or force exerted from that establishment’s security personnel or bouncers. It’s a common misconception that security personnel, or bouncers, have special privileges that allow them to remove customers from their establishments, restaurants, and bars without limitations and with the use of physical force that would typically constitute traditional definitions of assault and battery. Some believe that bouncers are highly trained security professionals retained by private security companies who ensure their employees are educated and trained in de-escalation tactics and the appropriate use of physical force when absolutely mandatory. While there are instances where professional and well-trained security are used, often this is not the case. Often bouncers have no special training of any kind, and their on-the-job training is minimal. This is evidenced by the volume of security-related cases and injuries resulting in Maryland establishments, restaurants, and bars.

In many cases, security personnel, or bouncers, are simply regular people employed by an establishment, restaurant, or bar to present the façade to customers that they are inherently safer due to their presence. The bouncers routinely used in these establishments do not have any specialized education or training, as indicated by the outrageous actions we have seen as litigators of security-related cases in Maryland. Further, these bouncers do not have special legal rights or privileges to initiate unwanted and unconsented physical force of customers, nor are bouncers given a pass to aggressively remove and evict customers from the premises using force. As a result of unwarranted actions taken by bouncers at establishments, restaurants, and bars, individuals can sustain serious physical injuries. In these incidents, an individual may sustain physical injuries that require medical attention or surgical repair, and may even suffer from mental, psychological, or reputational harm for being subjected to such treatment in public.

When signing up a case involving bouncers and these types of intentional torts, it is critical to immediately send a spoliation notice to the establishment to ensure that any video footage or other evidence related to the incident is preserved. If the establishment destroys or fails to preserve such evidence, your jury may infer that the evidence was unfavorable to the establishment. MPJI-Cv 1:16. If the jury finds that the establishment’s intent was to conceal the evidence, the jury must infer that the establishment believes it has a weak case and that it would not prevail with the evidence presented. Id. If the jury finds that the establishment was negligent in failing to preserve the evidence, the jury may infer that such evidence would have been unfavorable to the establishment. Id.

After spoliation notices are sent in pre-litigation, and the case has been filed, the lack of care given to the hiring, training, supervision, and/or retention to an establishment’s security personnel or bouncers can be highlighted in the depositions of corporate representatives. When deposing the corporate representative of an establishment, or its retained security company, the case has the ability to evolve into a greater issue that all people who enter the establishment are at risk, and your client unfortunately fell victim to that risk. This broadens the scope of risk from a one-off incident between your client and a bouncer into an issue that could affect anyone in the community. An expert witness in the realm of security can also be helpful in bolstering your case against the establishment to show that the practices the establishment used fell below the accepted standard of care. With evidence obtained during the course of pre-litigation and then discovery, these types of security-related cases are prime for focus groups where you can present both favorable and unfavorable facts to individuals who may be similar to those situated on your potential jury. Clearly, the favorable facts may include that the bouncer had no relevant training to handle the scenario involving your client, and unfavorable facts may include that your client was intoxicated. However, in cases involving bars and restaurants, there is an expectation that the establishment serves and encourages the use of alcohol, and therefore bouncers should be prepared to deal with intoxicated individuals. If your client presented to the emergency room and there is no evidence of his or her blood-alcohol content, then a Motion in Limine may be filed to exclude such evidence.

In Maryland, individuals may seek to recover damages from the tortfeasor’s employer under causes of action for the assault and battery (with caution), but also for the employer’s negligent hiring, training, supervision, and/or retention of that dangerous employee. As with any assault or battery case, the customer must demonstrate that the bouncer intentionally threatened the customer and had the present ability to carry out such threat; or, in the case of battery, that the bouncer intentionally touched the body of the customer in an offensive manner absent consent. MPJI-Cv 15:1; 15:2. Even if such actions were intentional, an employer may still be held liable if the assault or battery was performed within the scope of employment and the harm complained of was foreseeable. MPJI-Cv 3:5 While the facts of a bouncer-related incident may seem simplistic at the onset, employees and employers often take the position that the customer was belligerent, initiated the offense, and therefore required physical removal from the establishment. Further, insurance carriers have taken extensive measures to write battery and assault related exclusions into their policies to immediately disclaim coverage in these types of incidents.

In regard to the negligence counts, Maryland courts have required the torts of negligent selection, training, or retention, to meet the four elements of any negligence claim: (1) the defendant owed a duty to the plaintiff; (2) the defendant breached that duty; (3) the plaintiff suffered actual injury; and (4) the injury proximately resulted from the defendant’s breach. Some courts have outlined a bit more specificity as to the above-referenced elements, noting that the Plaintiff must demonstrate: (1) the existence of an employee relationship; (2) the employee’s incompetence; (3) the employers’ actual or constructive knowledge of such incompetence; (4) the employee’s act or omission causing the plaintiff’s injuries; and (5) the employer’s negligence in hiring, supervising, or retaining the employee as the proximate cause of the plaintiff’s injuries.

In considering the above-referenced elements, in conjunction with the likely defenses and the fact that the establishment’s insurance carrier may present an argument to disclaim coverage for the customer’s injuries and resulting damages, it is important to consider what counts you may want to include or exclude from your complaint. Consider whether a battery count is necessary in addition to the above-referenced respondeat superior and negligence counts to ensure your client has the best opportunity to obtain a just recovery. You may find that the respondeat superior count allows the bouncer’s conduct to be in evidence without taking the risk of a policy exclusion removing coverage from the case.

Biographies

Samantha Dos Santos is an Associate Attorney at Plaxen Adler Muncy, P.A. in Columbia, Maryland representing clients in personal injury matters. Prior to joining the firm, Samantha served as a judicial law clerk to the Honorable Jeannie J. Hong in the Circuit Court for Baltimore City.

Samantha attended The George Washington University where she played Division 1 Softball. At GWU, Samantha was a two-year captain and four-year starting catcher. Following her tenure at GWU, Samantha attended the American University Washington College of Law and graduated cum laude. During law school, she taught twelfth grade Constitutional Law and also practiced pursuant to Rule 16 by representing criminal defendants in the Montgomery County District Court. She also served on the Administrative Law Review and received ALR’s Exemplary Service Award for her commitment as a Senior Staffer. In the classroom, she garnered Highest Grade Recognitions in Civil Rights and Remedies, Legal Ethics, and Education Law.

Samantha is an active member of the Maryland State Bar Association and was selected for MSBA's Leadership Academy from 2021-2022. She was then appointed to the Leadership Academy Committee in 2022.

She is admitted to practice in Maryland, the District of Columbia (selected to Rising Stars 2023), and the U.S. District Court for the District of Maryland.

David A. Muncy is a graduate of the University of Baltimore School of Law and a partner at Plaxen Adler Muncy. David joined the practice in 2012 upon graduating from UB. Since then, he has dedicated his practice to representing people injured in motor vehicle and premises liability cases, injured workers, and disabled people seeking Social Security benefits.

He has been named a Rising Star every year since 2017 by Maryland Super Lawyers. David has been on the Board of MAJ since 2016 and has chaired the New Lawyers and Auto Negligence sections, and also frequently testifies in Annapolis on behalf of MAJ. David lives in Woodstock with his wife and daughter.