A lawsuit against Pizza Pizza by a man who was beaten unconscious in a parking lot outside of a Stoney Creek store will move forward after three attempts by the company to quash the action.

Eugene Kelly, then 46, was assaulted outside the Fiesta Mall location in November 2006, after an exchange of words with two teens inside the eatery.

Kelly launched a suit against Pizza Pizza, arguing the restaurant did not take reasonable steps to protect him. He is also suing his assailants.

Two teens were convicted of aggravated assault in the attack and one was also convicted of assault with a weapon (pepper spray) and administering a noxious substance. A third man pleaded guilty to aggravated assault.

Pizza Pizza has tried to have the case thrown out, questioning in its latest attempt whether "a commercial entity who does not serve alcohol owes a duty of care to its former patron for an intentional tort that occurred off-premises."

The company argued "that this is an important principle that warrants a review and comment by appellate court to advance and/clarify the state of the law in Ontario."

The parking lot outside of the mall where the attack occurred "is not occupied by Pizza Pizza," according to the court documents.

Superior Court Justice R. John Harper denied the company's appeal in his decision April 30. Now, there will either be a trial or settlement in the case — which raises questions about the liability of businesses when it comes to their customers' safety.

On the night of the attack, Kelly had stopped by the Fiesta Mall takeout joint in Stoney Creek around 2:30 a.m. He had played a show with his band at the Corktown Pub, and was stopping for a bite to eat on his way home.

Employee Azhar Iqbal was the only one working that night and he was doing the serving and the cooking.

As Kelly paid for his order, two teenagers walked in and asked for a glass of water. Iqbal explained they only sold bottled water and, according to court documents, one of the teen's used a racial slur against the employee.

Kelly stepped in and told the kids to settle down and "have some manners."

One of the teens then asked him what "is it to you?"

Hoping to diffuse the situation, Kelly told Iqbal he was going to Tim Hortons next door to get a coffee while his order was being prepared. One of the teens asked if he wanted to take it outside.

As soon as Kelly left, the two teens followed him outside, where they were joined by friends. Kelly was pepper sprayed in the face, and that was the last thing he remembered until he woke up in the hospital weeks later with significant injuries.

In Pizza Pizza's latest attempt to have the suit thrown out, the company submitted that the previous judge erred in finding they had a duty of care to take action to protect Kelly from assault (or that they could have reasonably foreseen that he'd sustain the injuries he did), particularly after he had left the restaurant.

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In his April decision, Harper ruled it would not be proper at this stage to send the matter to the Court of Appeal, but rather that "it is trial judge who will consider the legal issues after having the ability to hear all of the evidence."

Kelly's lawyer Ivan Marini declined to comment because the case is still before the courts. Pizza Pizza's lawyer, Van Krakachovski, declined to be interviewed.