Restaurant Patrons Risk Injury and Death as the City and Restaurant Owners are Opened up to Massive Potential Liability.
By Shelomo Alfassa, MPA
The ‘Hostile Vehicle Attack’ has been a standard offensive tactic of terrorists for the past several years. This attack is easy to pull off, instills a heavy footprint of fear in those who witness it or hear about it, and it is effectively lethal. Such attacks have happened at street fairs, bus stops, restaurants, holiday markets and other locations. The standard to protect pedestrians is the use of high-strength crash-rated steel bollards. Bollards are so important for modern perimeter security that a New York City Councilman introduced legislature to protect pedestrian waiting in the city’s 10,000 bus stops with steel bollards. Those bus stops are on the sidewalk—but now, due to COVID social distancing, NYC is allowing citizens to eat outside both on the sidewalk and in the streets at unprotected restaurant tables.
Over the last few years, ramming attacks have been ever-increasing. Some of the notable incidents include a man who drove a van through the streets of Barcelona killing 13 and injuring 130. In Melbourne a driver deliberately crashed his car into a group of pedestrians on a sidewalk injuring over a dozen. In North Carolina a man drove a car into a restaurant killing people. In New York City a man drove a car at a high rate of speed across sidewalks in Times Square injuring 20 and ending the life of 1 person. Then, several months later, a man driving a truck murdered 8 people by driving on a Manhattan pedestrian and bicycle path.
The two latter events were a catalyst for New York City to harden areas where the public was vulnerable to attack from a hostile vehicle. Since those NYC attacks, the city has spent between $50-$70 million dollars on hardening targets such as popular pedestrian plazas and certain streets using steel perimeter security bollards. Today, everything has changed as a result of the COVID Pandemic, and now NYC is allowing restaurants which had been shuttered for months, to open, and serve food to people who are sitting at tables and chairs on busy sidewalks and streets.
Steel anti-ram bollards keep vehicles at bay, no matter the intent of the driver. They halt vehicles from entering prohibited areas, their purpose is to protect pedestrians, property and structures. NYC addresses such vulnerabilities through their ‘Security Infrastructure Working Group’ which is comprised of the Mayor’s Office, New York Police Department, Department of Transportation, and several other participating agencies. However, since the recent reopening of the businesses, NYC has seemly dropped all concern for public safety and has allowed restaurants to place pedestrians in the streets with no physical protection—not even the protection of the 6-inch sidewalk curb.
The U.S. Department of Homeland Security has warned about attacks against pedestrians, indicating terrorist groups will likely continue to encourage “unsophisticated tactics such as vehicle-ramming” since these types of attacks are difficult to prevent and “could inflict mass casualties if successful.” Those same eyes on America’s streets—eyes of the adversary, are still
out there. If a bad actor wanted to strike and hurt innocent Americans, there would be nothing to stop them. It is important that cities which are reopening, even in staggered stages, be cognizant of where they put the public, both figuratively and literally.
NYC abides by the New York State ‘Interim Guidance for Outdoor and Take-Out/Delivery Food Services’ (issued June 26, 2020). This allows restaurants to serve food to people only outside, but it is not overly specific on what “outside” means. However, New York State Executive Order No. 202.38 (issued June 6, 2020) allows for sidewalk dining, and for dining in the street if it is a “closed street.” Yet, NYC has dining occurring on multiple open streets, adjacent to vehicle traffic where there is seemly no enforcement of the “closed street” rule issued by the Governor.
A municipality legally allowing business owners to seat patrons at tables in an active roadway is absorbing a massive tort risk for that government. Such potential liability should be mitigated, and fully addressed. Moreover, if a City government knows that the State prohibits an activity—and yet allows it due to ignorance or any other reason, it may be held accountable in a court of law.
Further, for the business owner, it is a liability of high magnitude as well as an OSHA workplace safety concern for employers—a legitimate business concern. Case law well establishes that restaurant patrons that are hurt inside or immediately around a restaurant due to a dangerous condition can legally hold the restaurant liable for injuries. One hostile vehicle into a restaurant’s temporary operations in the street, can lead to numerous wrongful death and personal injury suits, medical claims, pain and suffering, etc., for all patrons; just imagine the breach of duty claim for creating a safe environment for patrons, when those patrons were placed by the restaurant to dine in the street in unprotected seating areas.
No matter the reason for the crash—either an intentional attack or perhaps an elderly person who has an unexpected medical episode causing a collision into a store front, the public who are exposed to streets and areas where vehicles travel are in a position to initiate litigation against all parties who placed them and/or allowed them to be there. Without a doubt, COVID restrictions and precautions have devastated the economy, and businesses need to be reopened, but reopening should be phased in with proper risk assessment and safety considerations.
Shelomo Alfassa, MPA, is a homeland security analyst and a Certified Emergency and Disaster Professional who focuses on hostile vehicle attacks and perimeter security.