Does an Assault and Battery Exception Apply to Negligence in Allowing Assault and Battery to Occur?

Estate of Pickett v. Moore’s Lounge

Docket No.: A-2230-17T2

Decided August 25, 2020

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

In a recent published decision, the Appellate Division considered whether a tavern’s assault and battery exception applied to the tavern’s alleged negligence in allowing assault and battery to occur.

In Pickett, Plaintiff, Pickett and James D. Corley got into an argument in Moore’s Lounge in Jersey City. As Pickett turned to walk away, Corley shot him three times, killing him. Corley was convicted of aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), and is currently incarcerated.

Pickett’s estate alleged the tavern’s staff subjected Pickett and other customers to a weapons search before they entered, but Corley, a retired police officer and a regular customer, was allowed to enter with a concealed weapon. The estate also alleged that the staff continued to serve Corley after he had already consumed excessive amounts of alcohol and displayed signs of intoxication.

The estate’s seven-count complaint against Corley and EMRO, Inc., the owner of the tavern, included a wrongful death count against all defendants, based on defendants’ “actions and/or negligence”; an assault and battery claim against Corley, for intentionally shooting Pickett; and a claim against EMRO for violating the Licensed Alcoholic Beverage Server Fair Liability Act, N.J.S.A. 2A:22A-2, for serving Corley alcohol despite his excessive consumption and visible intoxication. The remaining counts alleged negligence against EMRO including negligent hiring, training, supervision and retention.

EMRO settled its claims against the estate, then sought indemnification for the settlement amount and attorney’s fees from its insurance company, Northfield. Northfield denied coverage based on an exclusion of the policy for assault and battery, despite the negligence claims.  The Trial Court granted summary judgment to Northfield and EMRO appealed.

The Appellate Division found that the plain language of the insurance policy clearly excluded coverage in this instance. Although negligent acts were alleged against EMRO, it was the assault and battery that resulted from the negligence that was the driving force of the claim. Therefore, because it was actually damages from assault and battery, even though negligence was claimed on account of the tavern, the Appellate Division affirmed the trial court’s ruling that the assault and battery exclusion applies in this instance and no insurance coverage would be afforded.

This case is important for all personal injury plaintiffs.  Normally, personal injury damages are paid by insurance.  Therefore, plaintiff’s personal injury attorneys seek cases in which insurance applies. Otherwise, the plaintiff could run the risk of failing to recover for their damages if the individual or company they bring suit against has insufficient assets or declares bankruptcy.  Normally there are exclusions for intentional conduct in most insurance policies, meaning that an act like a shooting in the above-referenced case results in no insurance coverage, limiting the ability of the estate to collect for wrongful death. Had the shooting been accidental, the estate and EMRO would have had much better chances of collecting for damages and indemnification from the insurance company.

If you or someone you know has been injured in a slip and fall, motor vehicle accident, truck crash, wrongful death, or other premises related injury, you need to make sure you contact a personal injury attorney with experience today.  Failing to consider these issues could result in your case be dismissed permanently.  Do not hesitate to contact Hark & Hark today to discuss your personal injury.

For personal injury matters, you pay nothing upfront, and our fee is paid as a percentage of your recovery. At Hark & Hark, we represent clients in all towns in New Jersey, including Absecon, Atlantic City, Brigantine, Buena Borough, Buena Vista Township, Corbin City, Egg Harbor City, Egg Harbor Township, Estell Manor, Folsom, Galloway Township, Hamilton Township, Hammonton, Linwood, Longport, Margate, Mullica Township, Northfield, Pleasantville, Port Republic, Somers Point, Ventnor, and Weymouth Township.


Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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