Monday, September 16, 2013
Page 6
PERSPECTIVES (Column)
Dodgers, McCourt Ask Judge to Scuttle Lawsuit Over Stow’s Injuries
By ROGER M. GRACE
Los Angeles Superior Court Judge Abe Khan is being asked to tell lawyers pursuing a $50 million action by Bryan Stow against the Dodgers and the team’s former owner, Frank McCourt, in effect, “Yer out!”
The defendants are seeking summary judgment in an action brought against them on behalf of a San Francisco Giants fan who, at the opening game on March 31, 2011, was severely beaten in the Dodgers Stadium parking lot by partisans of the home team, causing brain damage that’s seen as permanent.
In the alternative, summary adjudication is sought.
At the time the action was filed in Los Angeles Superior Court on May 24, 2011, Stow was still in a medically induced coma; McCourt was owner of the Dodgers; the assailants had not been identified.
Public sympathy was decidedly in favor of the victim, to whom catastrophic harm had been done, and against the extremely-wealthy McCourt and the various Dodger entities, whose pockets were deep.
And the question that wasn’t asked was: how were these defendants at fault?
McCourt did not beat Stow. He did not hire the thugs who did. He is not vicariously responsible for actions of customers who went amok. The incident was unforeseeable, and McCourt and the security personnel were as much without an ability to prevent it as the Dodgers’ shortstop or a stadium hot dog vendor.
Yet, the law firm of Girardi | Keese brought the action on behalf of Stow, through his conservators, and on behalf of Stow’s two minor children, through their guardian ad litem.
On July 21, 2011, two Rialto men, Louie Sanchez and Marvin Norwood, were arrested in connection with the beating and are presently facing trial. If they are, in fact, the culprits, it is they, only they, who are the malefactors.
Although the complaint sets forth causes of action against the assailants—sued as Does—for assault, battery, false imprisonment and intentional infliction of emotional distress, the actual names of Sanchez and Norwood have not been substituted. That’s understandable; they don’t have the means to pay the millions of dollars needed for Stow’s care.
That inability does not, however—from either a moral or legal standpoint—actuate a duty to pay on the part of those who do have the means to do so, but are blameless.
The complaint contends that security at the game was wanting. That allegation is intertwined with denigration of McCourt—who at that time was a much disliked fellow, being widely blamed for the team’s floundering finances and impending bankruptcy…which was, in fact, declared the following month.
The potshots at McCourt, permeating the complaint, suggest that the trial strategy then anticipated was to portray the team owner as a blackguard, responsible for the home team’s woes through bungling and greed, and thus spur a jury into awarding hefty punitive damages.
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—AP FRANK McCOURT |
It’s even alleged that the post of head of security had been unfilled for six months, that this “was due to DEFENDANT MCCOURT’S misappropriation of corporate finances and misuse of corporate funds,” and this was a cause of Stow’s injuries and the children’s consequent loss of consortium and financial support.
Since the filing of the complaint, Khan on Sept. 30, 2011, sustained a demurrer without leave to amend to the minors’ causes of actions; on March 27, 2012, it was announced that McCourt had sold the team to Guggenheim Baseball; the sale was confirmed by Bankruptcy Judge Kevin Gross on April 13, 2012; when the Dodgers emerged from bankruptcy later that month, an accord was in place specifying that Stow would be limited to a recovery (if any) covered by insurance, estimated as being as much as $300 million.
But should anything be recovered based on the allegation of skimpy security?
The complaint alleges:
“It is unfortunate that such a storied and well-respected baseball club such as the Los Angeles Dodgers has been made to suffer due to the cutbacks and mismanagement by its owner FRANK MCCOURT and his various corporate entities. PLAINTIFFS are informed, believe, and thereon allege, that these cutbacks also led to a major downscaling of security forces at the stadium and surrounding parking lot. These cutbacks have accelerated since approximately 2009 primarily as a cost saving measure due to owner and principle [sic] FRANK MCCOURT’s financial mismanagement and family woes [his divorce]. The over approximately twenty-one MCCOURT entities, are comprised of a myriad of companies and corporations, each purposefully and intricately designed to fund MCCOURTS’ lavish lifestyle while depleting the DODGERS of necessary funds to operate adequately and properly. This led to a disturbing reduction in security staff for DODGERS games. As the final decision maker for the DODGERS DEFENDANTS, and each of them, MCCOURT and his entities held the ultimate responsibility for the funding and implementation of security procedures and implementation.”
To the contrary, there was no lack of security, according to evidence put forth in connection with the motion for summary judgment. The memorandum of points and authorities in support of the motion, drafted by Dana Alden Fox of Lewis Brisbois Bisgaard & Smith LLP, summarizes that evidence in these words:
“It is undisputed that the Dodgers deployed a comprehensive security force throughout the stadium on the date at issue. That security team numbered 442, and consisted of 195 uniformed, on-duty officers of the Los Angeles Police Department (‘LAPD’); 19 uniformed, off-duty law enforcement officers retained by the Dodgers; 59 off-duty law enforcement officers retained by the Dodgers in designated with polo shirts; 124 private security guards employed by the Dodgers; 21 managerial security personnel in the stadium security command post and throughout the premises; 5 officers from the Los Angeles Office of Public Safety; 2 officers from the California Highway Patrol; and 17 personnel assigned to Dodger Stadium by the FBI.
“With 55,070 fans in attendance on Opening Day 2011, the security-to-fan ratio at the stadium was one security person for every 124 fans. That high level of security brought recognition and praise from Major League Baseball, which concluded that ‘there were no deficiencies’ in security at Dodger Stadium on March 31, 2011 and that the level of security ‘might only be surpassed by the Yankees.’
“In fact, the number of security personnel deployed at Dodger Stadium on Opening Day 2011 represented one of the highest, if not the very highest, number of security personnel ever present at a Dodger game played at Dodger Stadium.”
The evidence includes deposition testimony as to the presence of 32 surveillance cameras beaming images to monitors in the command post overlooking the stadium, patrolling of the stands by uniformed officers, and security personnel touring the parking lot in golf carts.
A report by Bob Campbell, director of security at Major League Baseball, says that “[d]uring the game there was one arrest”—based on an assault of an off duty police officer—and “there were 92 ejections for mostly alcohol related reasons.”
The 2011 complaint alleges a duty to eject from the premises “those throwing or launching [an] object at other persons.” Testimony at Sanchez’s 2012 preliminary hearing shows that Sanchez had, indeed, been tossing peanuts at Giants fans, as well as bellowing cuss words.
If Sanchez’s conduct had come to the attention of security personnel, testimony indicates, the first step would have been to counsel him, and if that failed, he would have been banished. The goal, of course, would have been to spare others the annoyance of being pelted with shell-encased legumes or bombarded with profanity. As it happens, however, deposition testimony reveals a lack of the staff’s awareness of the conduct.
Posted at the turnstiles and elsewhere, and announced during the game, was an exhortation to report offensive conduct “to the nearest Usher, Security Officer or stadium staff member”—with a texting hotline number provided. No complaints came electronically or orally to stadium personnel, the evidence shows.
In this era when spectator sections at soccer games are frequently battle zones, it would seem that a modicum of indecorousness at baseball games is commonly tolerated. Marc Lu, one of the Giants fans who was pelted and identified Sanchez as the pelter, testified at the preliminary hearing:
“We didn’t think much of it. It was a baseball game. It was Dodgers Opening Day and we were wearing Giants gear. We expected things like that.”
LAPD officer Randy Espinoza testified in a deposition that if spectator hurled a whole bag of peanuts at someone, it would result in the person being kicked out…but that tossing a single peanut is viewed by many as fairly innocuous.
Even if someone had complained, or if the LAPD officers strolling through the section at frequent intervals, or Dodger security guards, had observed Sanchez acting up, any duty that would have arisen would have been to protect Lu and others within the range of Sanchez’s arm throw—or earshot with respect to his profane utterances.
There would clearly not have been any duty to oust Norwood—who apparently had not been misbehaving, and, according to testimony, was actually seeking to calm Sanchez. To the contrary, security guards and police would have been legally powerless to require Norwood’s departure; he was a paid ticket-holder, entitled to be there.
It is difficult to see any duty at that point to Stow, who was seated on the other side of the stadium (himself being rather rowdy). Yet, inherent in the plaintiff’s position is an assertion of a duty to have escorted Sanchez and Norwood outside the premises in order to forestall any possibility of them inflicting physical harm on some Giants fan they might encounter in the parking lot after the game. Landowner liability does not arise from a lack of clairvoyance.
Assuming that Sanchez was one of Stow’s assailants, his throwing of peanuts (perhaps also sunflower seeds) during the game hardly presaged his later throwing of punches to Stow’s head, followed by kicking his cranium when he was down on the ground, inducing a coma. The activity by Sanchez in the stands evidenced immaturity, not violent propensities. If Sanchez’s conduct had been spotted by Dodgers personnel, it would not even arguably have alerted them to his dangerousness.
There is a duty to invitees to take reasonable steps to protect them from foreseeable injuries. This does not extend to expelling every goof-off like Sanchez who behaves in a nettlesome manner or assigning a bodyguard to every customer who might evoke disfavor of others, such as Stow in his orange and white Giants gear.
Despite the Dodgers’ victory on opening day, which should have had a mellowing effect on him, Sanchez allegedly continued to act in the manner of a naughty brat. At the end of the game, according to testimony, he sprayed a can of soda pop—though it’s not clear if it hit anyone. According to LAPD Officer Rene Zavala, in his deposition testimony, such conduct, if known about, will result in an ejection, if not an arrest. Also, Sanchez, and possibly Norwood, may have shoved someone. If there were official awareness of that, Officer Espinoza said, the suspect would be “taken upstairs” to the security office and perhaps arrested for battery.
Again, however, none of the security personnel witnessed the alleged post-game misconduct nor received a report of it.
If Dodgers personnel had witnessed or heard of Sanchez’s boorishness, what duty would be imposed on them after the game? To escort Sanchez and those in his company to their vehicle in the parking lot to make sure they didn’t cause anyone harm? To escort Stow and his party to a taxi stand (they came by taxi because they had been imbibing before the game) to assure their safety? That does seem far-fetched. Who among the throng of tens of thousands of spectators would not be a theoretical aggressor or victim?
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—AP LOUIE SANCHEZ and MARVIN NORWOOD |
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The parking lot had previously been the scene of crimes and squabbles, the complaint says, alleging:
“The DODGERS DEFENDANTS owe a duty to warn patrons of known dangers and a duty to take other reasonable and appropriate measures to protect patrons from imminent or ‘ongoing’ aggressive conduct. Such measures [should include] protecting patrons or invitees from an imminent and known peril lurking in the parking lot by providing an escort by existing security personnel to a car in that parking lot.”
Can you imagine the upshot?
SECURITY GUARD: I’m sorry, sir, you cannot go to your car unattended. You must wait for an escort.
PATRON: But I’ve been waiting here five hours!
SECURITY GUARD: I’m sorry, sir, we have only so many existing personnel.
Although the complaint calls for an escort service utilizing existing personnel, Fox discounts the feasibility of providing any such a service without hiring additional employees, commenting in her P&As:
“Plaintiff argues, apparently, the only manner by which to achieve unparalleled safety in stadiums is to only hire uniformed officers on a nearly one to one ratio, all of whom would be available to personally escort fans out of the stadium. But consider the atmosphere such a duty would create—America’s pastime would become ominous and oppressive.”
Girardi | Keese has taken a tragedy and founded upon it an action at law unsupported by the facts and steeped in falderal.
The complaint harps on the parking lot lighting being inadequate, creating a peril known to the Dodgers. That would be relevant in an action brought by a patron who had been robbed in the shadows, or set upon by a foe lying in wait. But the level of the lighting in no way caused or facilitated the beating of Stow.
He drew the ire of his assailants through his belligerent conduct—in particular, his one-liner to three fellow paramedics, in reference to a group of Dodgers fans: “I hope they code.” In medical parlance, that means to incur cardiac arrest.
The complaint—filed before the culprits had been (correctly or not) identified—rails against the Dodgers admitting gang members to the stadium. As it turns out, neither Sanchez nor Norwood is a gang member.
Too, the complaint repeatedly mentions the Dodgers selling beer at half price to promote drinking. On the day Stow was beaten, it did not do that.
No attempt has been made to amend the complaint to reflect the actual facts.
The hearing on the motion for summary judgment was initially slated to be heard Aug. 20. It was continued to Sept. 19. It’s now scheduled for Jan. 7.
Wherever it comes to be heard, the spotlight will be on Khan.
Baseball aficionados would doubtlessly be enraged if he granted summary judgment. Khan would be seen as heartless. And a negative public perception of him is something Khan experienced in the past, costing him his job.
He was a member of the Citrus Municipal Court when, in 1992, he drew an election challenge from an obscure attorney, Patrick B. Murphy. The incumbent ran as Abraham Aponte Khan and, with bias against Mid-Easterners rampant, he lost.
(Running under the moniker of “Abe Khan,” more palatable to voters, he was elected to the Los Angeles Municipal Court in 1994, and was elevated to the Superior Court through unification in 2000. Murphy later suffered the ignominy of resigning from the Los Angeles Superior Court in 2001 to dodge an imminent forced removal by the Commission on Judicial Performance, and in 2004, was disbarred.)
Will Khan take what would be a highly unpopular action—scuttling Stow’s action—which could, conceivably, prompt another election challenge?
There is, of course, the prospect that Khan, in good faith and with clear conscience, will deny the motion, spotting in the morass of facts some that are triable. Denial of summary judgment would not necessarily demonstrate a lack of fortitude on his part.
On the other hand, if Khan does grant the motion, it would, unmistakably, evidence courage and a commitment to equal treatment under the law.
The defendants’ lawyer, Fox, has presented evidence and argumentation in favor of summary judgment meticulously and persuasively. She’s hit a home run.
But there are more innings to come.
Next up to bat is Christopher T. Aumais, of Girardi | Keese, whose opposition is due in late November.
The outcome of the game is uncertain.
I’ll be in the defendants’ rooting section.
Copyright 2013, Metropolitan News Company