Most of us have heard about the beating suffered by Neal Auricchio, Jr. outside of Geno's Steaks in Philadelphia on January 5, 2012. These are the facts as reported in the Philadelphia Inquirer by staff writer Mike Newall on January 6, 2012.
Auricchio is the New York Rangers fan who was sucker-punched and beaten unconscious by three Flyers fans after the Winter Classic hockey game Monday night at Citizens Bank Park. The video of the beating went viral.
Auricchio and a friend were enjoying postgame cheesesteaks at Geno's in South Philadelphia when the unidentified Flyers fans bribed a squeegee guy to squirt the Rangers fans with his spray bottle, said Capt. Laurence Nodiff, commander of South Detectives.The guy goes up and does it, and then runs away," Nodiff said.
That's where the video picks up.
Wearing a No. 24 Ryan Callahan Rangers jersey, Auricchio stands surrounded by Flyers fans. He puts his hands out, as if trying to play peacemaker.A man who looks to have about a one-foot height advantage on Auricchio removes his dark coat with white fur trim, uncovering his No. 28 Claude Giroux Flyers jersey.He shoves Auricchio, who still has his hands out, and then throws a punch.Auricchio throws back, punching up, but is quickly overwhelmed when a man in a No. 68 Jaromir Jagr jersey begins punching him, too. The two hit Auricchio about a dozen times as he lies on the ground.When a Flyers fan tries to pull them off Auricchio, the man with No. 28 and two other men begin to beat another Rangers fan.When Auricchio stumbles to that man's aid, No. 28 blindsides him with a punch, knocking him to the ground unconscious.Some people yell, "Enough! Enough!" and, "Easy!" Someone else yells, "Go to sleep!" No. 68 then kicks Auricchio. No. 28 steps over him and picks up his fur-trimmed coat.
Auricchio was treated at a New Jersey hospital for a concussion, said Woodbridge Mayor John McCormac, a longtime family friend. Auricchio has a stitched-up cut under one eye, and the other eye is still swollen nearly shut.
Auricchio is married and welcomed his first child, Vincenzo, the week before Christmas. He was shot by a sniper in Fallujah during his first tour in Iraq. He went back in 2007, the day after graduating from the Woodbridge Police Academy.
Questions certainly come to mind about what the heck Mr. Auricchio was doing wearing a Rangers jersey in that setting, and his lack of awareness for his personal safety in general in which he ultimately found himself. I found it surprising that Auricchio, a combat veteran and a police officer, was caught, surrounded as he was, by the violent animals that beat him. I by no means am suggesting that Mr. Auricchio's lack of awareness justified what happened to him. Rather I found it surprising that he was so unaware of the potential dangers he was facing, given his background. By the time he ordered his steak sandwich, he was "trapped" and it was already too late.
There's a book I read sometime ago, The Gift Of Fear by Davin De Becker. The premise of the book is that the threat of violence surrounds us every day. But if we trust our instincts, our sixth sense if you will, we can identify the subtle signs of danger—before it's too late. Simply put, most violent acts are predictable.
That aside, is Geno's responsible? They sure are, as a matter of law, and I believe they can be sued for money damages by Mr. Auricchio. A property owner is responsible for the criminal acts of third parties if they should have anticipated a danger to their customers. Owners of commercial property may be held liable under civil negligence claims for harm to persons by criminal acts of third parties so long as the criminal act was forseeable against “reasonably foreseeable” crimes.Section 344 of the Restatement (Second) of Torts reads:
A possessor of land who holds it open to the public for entry for
his business purposes is subject to liability to members of the
public while they are upon the land for such a purpose, for
physical harm caused by the accidental, negligent, or intentionally
harmful acts of third persons or animals, and by the failure of the
possessor to exercise reasonable care to
(a) discover that such acts are being done or are likely to be
(b) give a warning adequate to enable the visitors to avoid the
harm, or otherwise to protect them against it.
Comment (f): Duty to police premises. Since the possessor is
not an insurer of the visitor's safety, he is ordinarily under no duty
to exercise any care until he knows or has reason to know that
the acts of the third person are occurring, or are about to occur.
He may, however, know or have reason to know, from past
experience, that there is a likelihood of conduct on the part of
third persons in general which is likely to endanger the safety of
the visitor, even though he has no reason to expect it on the part
of any particular individual. If the place or character of his
business, or his past experience, is such that he should
reasonably anticipate careless or criminal conduct on the part of
third persons, either generally or at some particular time, he may
be under a duty to take precautions against it, and to provide a
reasonably sufficient number of servants to afford a reasonable
The Pennsylvania courts have held that a property owner should have knowledge of recent criminal activity and incidents at or in the vicinity of the property. This knowledge can create a duty on the part of the owner to ensure adequate security measures are in place.
If the owner of Geno's knew or should have known that a potentially violent individuals had ever frequented his business, he was as a matter of law on notice that violence could occur to his customers by other persons, be they patrons of Geno's or not. Even if no prior violent acts were known to the Geno's Steaks folks, if they saw what was developing to and around Mr. Auricchio, and did nothing, like calling the police rapidly, I believe that can be found negligent for the injuries sustained by Auricchio. Geno's Steaks should have:
- anticipated the violence to it's customer, Mr. Auricchio,
- acted promptly to protect its customer,
- had a mechanism in place to deescalate violent situations occurring on their property, or originating from their property, between customers or others utilizing their property for any purpose.
I find it hard to believe that events similar to this have never before taken place at or near Geno's Steaks; perhaps not to this degree- yet post sporting event/post late night partying tussles between purchasers of cheesesteaks? Absolutely. That puts Geno's Steaks on notice of the violence that befell Mr. Auricchio.