Friday, July 1, 2005
California Supreme Court Rules:
Businesses Must Take Measures to Protect Patrons From Attack
By KENNETH OFGANG, Staff Writer/Appellate Courts
The proprietor of a business is required to undertake “minimally burdensome” measures to protect patrons from third-party criminal attacks, even when those attacks are not particularly foreseeable, the California Supreme Court ruled yesterday.
In a long-awaited 5-2 decision, the justices reversed a ruling of the Fifth District Court of Appeal, which had overturned an $81,000 jury verdict in favor of a bar patron who said he was assaulted by gang members in the defendant’s parking lot.
The case was sent back to the Court of Appeal so that it may consider issues left unresolved by its 2003 opinion. And in a companion case, the justices unanimously ruled that a man beaten up in the parking lot of a restaurant can sue the establishment’s owner because employees failed to call 911.
Parking Lot Fight
The Fifth District case grew out of a suit by Michael Delgado, who claimed that John Joseph followed him out of Trax, a restaurant and bar in Turlock. He confronted Delgado and, when it appeared there would be a fight, Joseph called out in Assyrian to other men in the parking lot.
Joseph and his group, which Delgado said numbered at least a dozen, kicked and beat him before Joseph—who later pled no contest to assault—hit him several times with a baseball bat, causing him to be hospitalized for 16 days.
In reversing the judgment, the Court of Appeal held that the assault was unforeseeable as a matter of law because the bar, though it had experienced ordinary “bar fights” inside and outside the premises, had no history of gang fights or of gang attacks on individual patrons.
But Chief Justice Ronald M. George, writing for the high court, said there was a special relationship between the business and its patron, and that the duty was breached when the Trax security guard learned that trouble was likely and failed to take simple steps that might have prevented it.
The chief justice distinguished Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, in which the court held that the owner of a shopping plaza had no duty to provide security guards who might have prevented the rape of an employee of one of the stores.
The costly burden of providing such guards, measured against the very low foreseeability of the rapeóthere had been some burglaries and purse snatchings at the center, but no prior sexual assaults, the court notedówas held to require a conclusion that no such duty existed.
But George rejected the contention of Trax and its amicus, the Pacific Legal Foundation, that Ann M. always requires “heightened foreseeability” before a business proprietor can be found liable for failing to protect a patron from third-party crimes.
Turning to the facts of Delgado’s case, the chief justice wrote:
“[W[e conclude...that under the circumstances it was foreseeable that an assault would occur absent separation of Joseph and his group from plaintiff [and] that defendant had a special-relationship-based duty to respond to the unfolding events by taking reasonable, relatively simple, and minimally burdensome steps in order to address the imminent danger that [the security guard] perceived, and, specifically, in order to accomplish the separation that he had determined was necessary.”
The guard could have, for example, tried to talk Joseph and his group into staying inside after Delgado left, at the guard’s direction. And he could have checked to see if the outside guard—who called 911 while the assault was in progress—was at his post and in a position to help if a fight broke out, the chief justice said.
Justices Ming Chin, Marvin Baxter, Carlos Moreno, and Kathryn M. Werdegar concurred.
Justice Joyce L. Kennard, joined by Justice Janice Rogers Brown, dissented. “Unlike the majority, I am of the view that the business owner could not have foreseen this vicious assault and thus did not owe a duty to protect him from such an attack,” Kennard wrote.
In the companion case, the justices agreed with the Court of Appeal, which overturned a summary judgment in favor of the owner of Victoria’s Mexican Food, in the Nestor area of San Diego.
Plaintiff Charles 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.
George agreed with the Court of Appeal that once the fight broke out, the employees had a duty to call 911, at least to the extent that they could do so without endangering their own safety. Whether they reasonably feared for their own safety, he said, is a question of fact that must be decided at trial.
Baxter, Chin, Moreno, and Werdegar concurred. Brown and Kennard concurred separately, distinguishing the two cases by saying the burden of calling 911 may have been so minimal that the employees had a duty to do so under the circumstances.
The cases are Delgado v. Trax Bar & Grill, 05 S.O.S. 3252, and Morris v. De la Torre, 05 S.O.S. 3266.
Copyright 2005, Metropolitan News Company