Maybe it’s a Jersey/East Coast thing but I love a good cheesesteak. My go-to spot after a late-night gig in Philadelphia was Pat’s, the South Philly institution known as the King of Steaks. Across the street from Pat’s is Geno’s Steaks, which also has great steaks, but except for trying Geno’s one time, I’ve always picked Pat’s—perhaps because Pat’s has been around since 1930 (as opposed to Geno’s, established 1966), but more likely because Pat’s had a scene in Rocky, one of my all-time favorite flicks. But I digress…

This headline caught my eye this morning when I was reading through my RSS feed: Is Geno’s Steaks Liable For The Beating Of The Rangers Fan? This post is courtesy of Philadelphia personal injury attorney Stuart Carpey, who writes the Pennsylvania Injury Law Report for the LexBlog Network. Although I consider myself well-versed in tort law, I’m not a personal injury attorney per se. It is through my involvement in sports law that I typically run into tort (e.g. personal injury) practice.

Here’s the basis for Carpey’s post: A couple days after last week’s Winter Classic hockey matchup between the Rangers and Flyers in Philly, a Rangers’ fan was severely beaten while waiting to pickup his cheesesteak at Geno’s. For those who’ve never been, Geno’s (and Pat’s) doesn’t have a dining room, or any inside seating or service. They service all customers through a pickup window, which is virtually on the sidewalk of the South Philly neighborhood. And it’s not uncommon for the line at either joint to wrap around the corner, or to wait an hour or longer to get to the front of the line and place your order. Based in part on those typical circumstances, Carpey proposes that Geno’s was is liable for the Ranger fan’s injuries:

[I]s 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… for harm to persons by criminal acts of third parties so long as the criminal act was forseeable…

The key language, however—if they should have anticipated a danger—is a pretty big if, because liability will be premised on the Ranger fan’s ability to prove that Geno’s knew that it was reasonably foreseeable that one of its customers could be attacked while waiting in line for a cheesesteak. (“Reasonably foreseeable” is lawyer speak, which basically means that such an incident was somewhere between possible and likely.)

Credit to Carpey for pointing this out as well, but I respectfully disagree with his conclusion that Geno’s is liable as a matter of law. Why? Because the burden of proof falls on the Rangers fan, and he will have to demonstrate that Geno’s knew or should have known that this was bound to happen. Even if he can show that Geno’s knew or should have known, Geno’s can still avoid liability if they can demonstrate that he created or escalated the situation, or that there was any other intervening cause for the altercation.

I genuinely feel for the victim, especially as a New York sports fan, but I don’t see a big payday in his future coming from Geno’s. What I do see in the future, however, is me stopping at Pat’s today—for one Whiz wit—after my meeting in Philly.