Metropolitan News-Enterprise


Thursday, September 4, 2003


Page 1


C.A. Finds Duty to Summon Aid After Unforeseeable Attack


By KENNETH OFGANG, Staff Writer/Appellate Courts


A business owner has a duty to protect customers and others with whom he has a special relationship once violence breaks out on the premises, even if the violence was unforeseeable, the Fourth District Court of Appeal ruled yesterday.

Div. One reinstated a suit by Charles E. Morris against Silvino De La Torre, the owner of a San Diego taco shop. Morris, a longtime customer, claims that De La Torre’s employees failed to summon help when he was stabbed by a gang member in the parking lot of Victoria’s Taco Shop three summers ago.

The appellate panel agreed with San Diego Superior Court Judge Luis R. Vargas that the attack on Morris was unforeseeable as a matter of law, so De La Torre had no duty to hire guards or take other steps to prevent the attack from occurring. But the plaintiff is still entitled to a trial, Justice Judith Haller wrote.

 “Although we agree with the court’s foreseeability analysis, we reverse the judgment because the court failed to distinguish between a business owner’s duty to take protective measures to deter future criminal conduct, and the duty to respond to contemporaneous criminal acts occurring on property used by the business,” Haller explained.

Gang Attack

Morris said he was waiting outside the shop at about 1 a.m. while some friends went inside for food. The plaintiff said he and two other friends were attacked in the parking lot by members of the Nestor street gang, one of whom said the shop was in the gang’s territory and Morris and his friends could not eat there.

After his friends came out, he said, a fistfight ensued, and one of the gang members went into the shop, grabbed a knife from the kitchen, went back into the parking lot, and stabbed Morris. Morris said he attempted to flee, but the gang member pursued him and stabbed him several more times.

Police came after Morris’ friends called 911 from a pay phone at a nearby Jack in the Box.

A police officer who investigated the incident related that an employee of the eatery admitted allowing the gang member into the kitchen, saying he became afraid when the gang member came in yelling and demanding a knife.

Evidence showed that there had been no prior stabbings or shootings outside or inside the taco shop, although there had been some fights, as well as harassment by gang members, and police had seen gang members congregating there. There was also testimony that employees were aware of the fights and gang presence and did nothing about it.

Vargas held that the defendant was entitled to summary judgment, saying the attack on Morris was unforeseeable and that the plaintiff lacked a special relationship with the defendant because he was not buying food at the time of the incident but was merely waiting for his friends.

Haller agreed that De La Torre had no duty to take steps to prevent violence from occurring.

“Based on the California Supreme Court’s recent pronouncements requiring evaluation of a landholder’s duties in the context of current societal conditions,” the justice wrote, “and considering the burden of requiring a business owner to monitor gang activity, we conclude that, on balance, the prior incidents of criminal activity in this case did not make the foreseeability of an aggravated assault sufficiently high for purposes of imposing a duty to take protective measures against future third party crime such as hiring a security guard, issuing warnings, or screening employees.”

Special Relationship

But Haller disagreed with the trial judge as to the existence of a special relationship between the parties, and said the defendant owed Morris a duty of care once the fight broke out.

While Morris was not on the premises to buy food that night, she reasoned, he was a regular customer and was in the parking lot waiting for friends who were patronizing the establishment and were also victims of the attack. There was, the justice wrote, “a sufficient nexus between the business and the victim and the location of the assault to create a special relationship and to justify imposition of a duty to respond to the assault with reasonable measures; i.e., by summoning aid.”

Any liability however, must be premised on the failure to summon help and not on the fact that an employee allowed the assailant access to the knife, Haller cautioned. The employee’s fear, the justice reasoned, “was eminently justifiable.”

The case is Morris v. De La Torre, 03 S.O.S. 4892.


Copyright 2003, Metropolitan News Company