Metropolitan News-Enterprise


Monday, October 19, 2009


Page 1


Court: Patrol Company Owed No Duty to Children Injured in Fire


By SHERRI M. OKAMOTO, Staff Writer


A security company hired to patrol a mobile home park was not liable to four children who were injured after one of them ignited model airplane fuel stored in an unlocked storage shed within the park where they were playing, the Fourth District Court of Appeal said Friday.

Affirming a grant of summary judgment in favor of Patrol Plus Inc., Div. Two emphasized in an unpublished decision that security companies do not have a duty as a matter of law to ensure the safety and security of the premises they patrol.

On Jan 15, 2005, a fire broke out around 4 p.m. at the Avalon Mobile Home Park in Riverside County, injuring Jolene Marie Lomeli, Rachel Ann Lomeli, Jose Luis Lomeli III and Devon Ray Davis.

The parties did not dispute that the owners of the park had hired Patrol Plus to patrol the property three times each day between the hours of 6 p.m. and 6 a.m., and the children—through guardian ad litem Rayleen Ann Lomeli—asserted that the park and the company “owned, operated, managed, maintained and/or were in possession and control” of the mobile home park premises and buildings.

They also claimed that the defendants were “the owners, manufacturers, suppliers, distributors, possessors or had under their custody and control a container of model aircraft and or racing fuel” at the mobile home park premises.

General Denial

Patrol Plus filed a general denial and moved for summary judgment contending that it could not be held liable because it did not own or control the mobile home park property; it did not own, control, supply, manufacture, or distribute the fuel which had ignited; and its acts were not a proximate cause of plaintiffs’ injuries.

In opposition, the plaintiffs purported to dispute various facts including whether the storage shed was locked on the day of the fire, and the source and extent of the duty owed by Patrol Plus.

Riverside Superior Court Judge Bernard Schwartz found that the undisputed facts did not establish a duty on the part of Patrol Plus to the plaintiffs and granted the security company’s motion for summary judgment.

On appeal, the plaintiffs argued that triable issues of material facts existed as to whether Patrol Plus had a duty to inspect the door to the storage shed where the fuel was stored and whether that door was locked in the hours preceding the fire. They also insisted that the duty of Patrol Plus was not defined exclusively by its contract with the park and included a duty to maintain the premises in a safe and secure condition.

Duty Rejected

However, Justice Art W. McKinster, writing on appeal, disagreed with the plaintiffs’ claim that Marois v. Royal Investigation & Patrol, Inc. (1984) 162 Cal.App.3d 193 imposed a duty on security companies to ensure the safety and security of the premises they patrol.

Marois involved two security guards who saw a man vandalize a kiosk in a restaurant parking lot and then attack a customer who tried to intercede. The Marois court held that the security guards had a “special relationship” with the restaurant’s customers which created an exception to the general rule that a person does not have a duty to come to the aid of another or to control the conduct of third persons.

McKinster reasoned that Marois was distinguishable because the security officers in that case were present and on duty when the victim was assaulted, whereas Patrol Plus was not present, nor contractually obligated to be present, when the plaintiffs entered the storage shed or when the fire erupted.

The justice explained that whether Patrol Plus had a duty to inspect the storage shed to determine whether it was locked depended on whether that inspection was required under the terms of its contract with the mobile home park. Even assuming, however, that Patrol Plus had a duty to inspect the door to the storage shed, McKinster said a breach of that presumed duty was not the cause of plaintiffs’ injury.

He noted, based on the terms of the security contract, that had Patrol Plus been contractually obligated to check the storage shed, the company would have done so no later than 6 a.m. and would not have returned until nearly two hours after the fire.

“Plaintiffs simply cannot demonstrate that the door to the storage shed was open because Patrol Plus failed to check the door and report its condition, or even because it failed to actually lock the door some 10 hours before the fire erupted,” McKinster said.

Presiding Justice Manuel A. Ramirez and Justice Douglas P. Miller joined McKinster in his decision.

The case is Lomeli v. Patrol Plus, Inc., E046314.


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