Wednesday, August 7, 2002
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Restaurateurs Not Liable for Killing by Patron on Premises—C.A.
By KENNETH OFGANG, Staff Writer/Appellate Courts
The owners of Shakey’s Pizza on Sunset Boulevard in Hollywood cannot be held liable for a murder on the premises, which they could not reasonably have foreseen, the Court of Appeal for this district ruled yesterday.
A divided panel in Div. Four affirmed Los Angeles Superior Court Judge Charles W. McCoy, who granted a nonsuit to the restaurateurs at the close of the plaintiffs’ evidence, rejecting a suit brought by the family of Carlos Alvarez.
Alvarez was shot to death in 1996 after an incident at the restaurant. Witnesses said that Victor and Mauricio Ajanel got into a fight with Alvarez after the Ajanels and another man with them began yelling obscenities and pointing a video camera at Alvarez and his party.
The men left the restaurant and had a brief altercation in the parking lot, which led employees to call police. While police were en route, the Alvarez group went back inside—where an employee reassured them everything would be alright and brought them their meal—and the Ajanel group left.
After the police came, asked a few questions, and left, the Ajanels returned to the restaurant, where Mauricio Ajanel shot Alvarez from a distance of less than five feet.
Ajanel ran from the restaurant and escaped, but was eventually apprehended and convicted of murder.
Past Incidents
Alvarez’s family, represented by the Law Office of Robert Scott Shtofman, argued that the restaurant’s owners had a duty to prevent the murder, which they said was foreseeable in light of what had transpired earlier, as well as past incidents at the restaurant.
The cited testimony that when Mauricio Ajanel left the restaurant, he said “I’ll be back” and/or “this isn’t going to stay like this” and that Victor Ajanel said he wanted “to go home and get the shotgun.”
Second Incident
They also offered evidence that there had been two incidents of violence in 1994 and one in 1995 at the restaurant. In the first instance a homeless woman, described by the victim as “crazy,” pointed a gun at an employee in the parking lot after he declined to give her money, but then laughed and walked away.
The second incident was a fight between employees and a customer who tried to leave without paying. The customer hit the manager with a tray, then fought with employees until he was subdued and arrested.
In the last incident, nearly a year before the shooting, a customer who had been previously asked to leave because he was arguing with another patron came back with several companions, displayed a gun, and grabbed the cash register. He pushed the cash register over and fled when an employee tried to stop him.
In his statement of decision, McCoy said the shooting was not foreseeable because none of the prior incidents were of a kind which would cause a reasonable observer to expect that a murder would take place.
“The fact that the Shak[e]y’s employee who called 911 may have known of a statement to the effect ‘I’ll be back’ and did not inform police of the statement does not alter the result, even if his omission played a role in the ultimate result,” the judge wrote. “ ‘I’ll be back,’ or a similar statement, does not, in these circumstances, bridge the breathtaking gulf in legal nexus between pushing, shoving and a bloody nose on the one hand and cold-blooded murder on the other.”
Presiding Justice Charles Vogel, writing for the Court of Appeal and joined by Justice J. Gary Hastings, said the defendants had no duty according to a series of state Supreme Court decisions that have held business operators not liable to victims of crimes committed by third parties on their premises.
Those cases require a close connection between past incidents of violence and the crime committed against the plaintiff, Vogel explained. Thus, he noted, past assaults, robberies, and purse snatchings have been held not to make a subsequent sexual assault on the premises foreseeable.
The fact that the Ajanels said they were coming back to the restaurant, Vogel said, did not place the owners on notice that there was going to be a shooting. “In regard to any threat by Ajanel to return to the restaurant with a weapon, plaintiffs’ counsel conceded at oral argument that it is undisputed that neither the restaurant nor the police were apprised of that threat,” the presiding justice noted.
Vogel rejected the argument that the defendants could be held liable for failing to tell the police the full story of what had occurred, including the threats. Had they done so, the plaintiffs contended, the police would either have remained on the premises or told the Alvarez party to leave before the Ajanels returned.
Business operators cannot be expected “to understand the subtleties or nuances of police procedure,” Vogel wrote.
“Law enforcement is trained to investigate and prevent crime,” the jurist explained. “…To shift that burden to a pizza parlor is simply not good policy. “
Justice Norman Epstein dissented, arguing that the defendants had not met the “exacting standards” for a nonsuit.
The officer who headed the investigation into the shooting, the dissenting justice noted, acknowledged that Los Angeles Police Department policy requires that an individual be warned if the department discovers a threat to the person’s safety. That and other evidence, Epstein reasoned, supports the “common sense” argument that had the police been informed of the threat, they would have take steps to protect Alvarez and his party.
Whether the employees actually knew of the threats and whether it was unreasonable for them not to report the threats to the police are questions that should have been resolved by the jury, the justice suggested.
Epstein distinguished the California Supreme Court cases cited by Vogel.
“In each of these cases, the court was concerned with the foreseeability of criminal conduct by an unknown and unknowable possible assailant,” he wrote. “That is in sharp contrast with this case. The identity of the assailant in this case was precisely known.”
If, in any of the Supreme Court cases, “the premises possessor had received specific reliable information that a particular assailant would be at the property to attack persons there, yet took no steps to prevent the attack,” the case would have come out differently, he reasoned.
The defendants were represented on appeal by Walter M. Yoka and Daniel F. McCann of Yoka & Smith.
The case is Alvarez v. Jacmar Pacific Pizza Corporation, 02 S.O.S. 4126.
Copyright 2002, Metropolitan News Company