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Wyatt v. 90 Grados Restaurant

United States District Court, E.D. Virginia, Alexandria Division

November 8, 2016

KELLY WYATT, Plaintiff
v.
90 GRADOS RESTAURANT, SPORTS BAR & CLUB LLC etal, Defendants.

          MEMORANDUM OPINION

          Liam O'Grady District Judge.

         This action arises out of a shooting that occurred in the early morning hours of January 20, 2014, at 90 Grados Restaurant, Sports Bar & Club LLC ("90 Grados") in Manassas, Virginia. Ms. Wyatt was a victim of the shooting. She now seeks to hold 90 Grados liable for her injuries on theories of negligence per se, vicarious liability, negligent hiring and supervision, and premises liability. In addition to 90 Grados, Ms. Wyatt brings claims against two additional defendants, Ventura Investment Group, LLC ("Ventura") and SONNY Inc., d/b/a Security Solutions Group and Investigative Services ("SSGIS"). Ms. Wyatt was granted leave to amend her complaint on two occasions, and 90 Grados now moves to dismiss this third version of the complaint under Rule 12(b)(6). For the reasons that follow, this motion is GRANTED.

         I. BACKGROUND

         A. Factual Background

         Defendant 90 Grados is a restaurant and bar operating with a mixed beverage liquor license in Manassas, Virginia. On Sunday, January 19, 2014, Bryant Banks hosted an event at 90 Grados-the "Big Banks Birthday Bash"-that was scheduled to run from 9:30 p.m. until 2 a.m. SSGIS and 90 Grados collected $20 from each person attending the Bash.

         The party featured live entertainment by a DJ and two "go-go" bands-the Northeast Groovers and Private Affairs. According to the Complaint, the Northeast Groovers "are known to have a following that often includes persons that engage in criminal behavior and attract a rowdy crowd to their performance." Both Banks and the bands widely promoted the event on social media. Plaintiff Kelly Wyatt was a member of Private Affairs.

         Because there would be live entertainment, 90 Grados had to comply with Prince William County zoning ordinances, including a requirement "to have a security plan and meet certain other conditions." See Code of Prince William County § 32-400.15 (General Provisions for Live Entertainment Uses). The Code's security plan sets a minimum level of guards present, requires that security and a manager be able to communicate, governs the location of the guards on the premises, provides for the minimum level of lighting necessary in a parking area, and sets last call. Banks hired SSGIS to provide security for the event, along with 90 Grados's security personnel. SSGIS provided eight uniformed security officers; four armed and four unarmed. By law, 90 Grados was also prohibited from "sell[ing] or permit[ting] to be consumed upon their premises any [alcohol]... [from] 2 a.m. to 6 a.m." 3 Va. Admin. Code § 5-50-30.

         On the night of the event, "the crowd grew larger and larger." At 1:30 a.m., SSGIS personnel asked 90 Grados staff to give a "last call, " but the staff failed to do so. Shortly before 2 a.m., the owner of SSGIS, Andre Hutchinson, looked for 90 Grados's "designated manager" to request that the sale and consumption of alcohol cease because SSGIS's security contract ended at 2 a.m., but management staff could not be located.

         Mr. Hutchinson and SSGIS personnel "began to announce to patrons and bar staff that consumption and sales of alcoholic beverages had to cease." As SSGIS security "traveled through the crowded establishment ordering the bar to stop serving alcoholic beverages and requesting patrons to discard their beverages, " Mr. Hutchinson encountered Jeremiah Pullen. Pullen "became belligerent" when he was told to discard his drink because he had recently purchased his beverage sometime around 2:00 a.m. When Pullen refused to throw out his drink, Mr. Hutchinson "sensed his hostility" and escorted him out of the establishment. When they reached the Restaurant exit, some patrons witnessed a "disturbance" between Mr. Pullen and security personnel. After the "disturbance, " a security officer escorted Mr. Pullen to the adjacent parking lot where he had allegedly parked his vehicle. According to the complaint, "[t]he adjacent parking lot is dimly lit, and does not possess the necessary security personnel or lighting as prescribed under the Prince William Code § 32-400.15." Therefore, "patrons rely on the lighting along the foyer of Defendant's establishment to illuminate the entire surrounding areas."

         Ms. Wyatt was returning from escorting her parents to their car and was in the vestibule of 90 Grados when multiple gunshots were fired into the entrance. Four people were shot, including Wyatt, who was hit in the leg. Pullen was later identified as the shooter. Wyatt was admitted to the INOVA hospital for treatment and was released the next day. Wyatt suffered permanent injury from the shooting. Bullet fragments remain in her leg and she lost her job with the U.S. Postal Service, among other injuries.

         The Second Amended Complaint alleges that "[t]here were a few incidents that occurred prior to the shooting that served as the basis of this complaint." First, "security personnel remov[ed] an unruly patron a few hours before the scheduled closing time of 2:00 a.m." Second, Wyat reports "a physical altercation between two female patrons around 1:00 a.m." While these events occurred, "the bands continued to perform and the bar continued to serve a very packed establishment. During some of these performances, some patrons in the crowd used their hands to represent gang affiliated signs."

         B. Procedural History

         Wyatt sued 90 Grados in the District of Maryland on four counts: (1) premises liability; (2) negligent hiring and supervision; (3) negligence per se; and (4) vicarious liability. She seeks at least $1, 000, 000 in damages as well as costs and fees. The District of Maryland transferred the case to the Eastern District of Virginia pursuant to 28 U.S.C. § 1404(a). (Dkt. No. 9). ...


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