Metropolitan News-Enterprise


Monday, March 15, 2010


Page 1


C.A. Revives Negligence Claim Over Shooting at Concert


By a MetNews Staff Writer


The First District Court of Appeal has revived a negligence claim against the owners and operators of a San Francisco concert venue for failing to provide adequate security at a 2003 hip-hop music event.

In an unpublished decision Thursday, Div. One ruled that Aaron Anderson had presented sufficient evidence to survive summary judgment, but rejected Anderson’s contention that he was entitled to judgment against the defendants in accordance with an offer to compromise he purported to accept after summary judgment was granted.

Anderson attended an event called the Holiday Jingle at Studio Z on Dec. 20, 2003. The headline performer for the evening’s festivities was Mac Dre, a high-profile rap artist who “drew a real ‘gangster’ crowd,” Anderson alleged.

The owners and operators of the venue, Eleventh & Folsom Preservation and Community Centers Inc. and Jon Stevens, hired eight security guards for the Holiday Jingle event.

Anderson said that two security guards were posted at the front entrance of the venue where they conducted pat-down searches of each patron entering the event and scanned each person with a metal detector wand.

A friend who accompanied him to the event testified that he saw at least 10 people enter through the designated exit door without being searched.

Two other attendees corroborated this testimony, and said they were able to enter the event without being searched by the guards. They also claimed that they danced with men in the audience at the event who appeared to be carrying guns.

At some point during the evening, Anderson was shot. Witnesses were able to provide police with a physical description of the shooter, but he was never identified or apprehended.

Anderson eventually filed suit against the owners and operators of Studio Z and the promoter of the Holiday Jingle event, asserting that the defendants had violated their own security policy and failed to take sufficient security measures to protect him from the criminal acts of third parties who they should have known were armed with deadly weapons and intended to injure other patrons.

Studio Z’s owners cross-complained against the promoter and the company that supplied the security guards and default was later entered against the cross-defendants.

In July 2008, the owners and operators of Studio Z filed a motion for summary judgment, contending that Anderson had not and could not show that the alleged violations of their security policy caused his injury.

The trial court granted the defendants’ motion, finding that Anderson’s proffered evidence did not show that it was “more likely that the actual gun involved in the shooting was brought into the Club after Defendants’ security guards went on duty” and that Anderson could not establish defendants’ alleged failure to take sufficient security measures caused his injury because “no one knows what measures can offer 100% protection against spontaneous violence” or whether additional guards could have prevented the shooting.

After the trial court entered judgment in favor of the defendants, Anderson moved to set aside the judgment and enter judgment against the defendants in accordance with an offer to compromise he attempted to accept after the trial court granted summary judgment. The trial court denied the motion.

Writing for the appellate court, Justice James J. Marchiano disagreed with the trial court’s determination that the witness testimony offered by Anderson did not demonstrate a likelihood that the shooter took advantage of the defendants’ lapses in security in order to commit his crime.

“Although the question is a close one, we conclude that the inferences reasonably drawn from the evidence are sufficient to raise a jury question as to whether defendants’ alleged negligence was a substantial factor in bringing about the harm to plaintiff,” he said.

Even though Anderson’s claim was that the defendants should have provided more security, Marchiano surmised that his primary contention was really that the existing guards had negligently performed their duties.

Marchiano reasoned that a jury could find it unlikely that the assailant was not one of the people authorized to enter the concert venue without passing through security since someone was likely to have recognized the shooter if he had been employed by the promoter or Studio Z.

Testimony that the shooter appeared to have been on drugs, and was dancing and acting erratically during the event further increased the probability that he was not present in the course of his job, the justice added.

In light of the allegations that security allowed individuals to enter the event without searching them, that Mac Dre drew a “gangster” crowd, and that several men on the dance floor were carrying handguns, Marchiano posited that a jury could reasonably infer that the gun likely belonged to the assailant or was taken from someone security failed to search. 

“Where security guards fail to deter criminal activity, it is generally for the jury to decide whether it is reasonably probable that adequate security could have prevented the shooting, either by serving as a deterrent or by intervening prior to the shooting,” he explained.

As for Anderson’s request for an entry of judgment in his favor, Marchiano concluded the entry of summary judgment terminated Anderson’s ability to accept the settlement offer.

“A grant of summary judgment disposes of all the issues in a case, and with them, the need for settlement,” he said.

Justices Sandra L. Margulies and Kathleen M. Banke joined Marchiano in his decision.

The case is Anderson v. Eleventh & Folsom Preservation and Community Centers, Inc., A123908.


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