Thursday, October 2, 2003
Appeals Court Reinstates Suit Over Shootings Outside Restaurant
Panel Says Breach of Agreement to Provide Security May Result in Liability
By KENNETH OFGANG, Staff Writer/Appellate Courts
A commercial property owner who agrees to provide security for an event on the premises may be liable for failing to prevent a shooting on the adjacent sidewalk, the Court of Appeal for this district has ruled.
Overturning a summary judgment favoring the owner of Steven’s Steak and Seafood House in Commerce, Div. Eight said the restaurant had assumed a contractual duty towards the hosts of the event and their guests, and that the breach of that duty may result in liability even if the shooting was unforeseeable.
The plaintiffs, Guillermo Avila and Jeremiah Del Real, were attending a 1999 quinceanera, or 15th birthday celebration, at the restaurant located at Steven’s Place and Eastern Ave. when a vehicle containing five persons later identified as members of the Stoner 13 gang drove up. A scuffle broke out before Avila and Del Real were shot.
Del Real had to have his leg amputated and Avila suffered nerve damage to his leg.
There was deposition testimony that the family hosting the event was told that the restaurant would provide “security” and that they understood that to mean that they did not have to provide their own security guards.
An employee testified that the restaurant typically told those who booked its banquet rooms that “we have in-house security and we never had any problems here.”
According to the testimony, however, the former deputy sheriff who regularly patrolled the premises was on the other side of the building when the fighting broke out. After being told what was happening, he went into the restaurant to ask a deputy sheriff who he knew was in the restaurant for help.
The deputy sheriff said in his deposition that he did not call for assistance prior to the shots ringing out because he was unable to assess the situation.
The plaintiffs’ security expert said in a declaration that the security guard appeared positioned to provide security for cars, rather than for the event, and that security should have been highly visible in order to serve as a deterrent.
He concluded that “it is more probable than not, that competent security personnel would have prevented the attack...from occurring and even if an incident had occurred, competent security would have intervened before any injuries occurred to Mr. Del Real and Mr. Avila.”
Trial Court’s Reasoning
Los Angeles Superior Court Judge Emilie Elias, in granting summary judgment, reasoned that the restaurateur had no duty to protect patrons from third-party criminal conduct on the sidewalk or street, that the shootings were not foreseeable, and that any breach of duty was not a legal cause of the plaintiffs’ injuries.
But Presiding Justice Candace Cooper, writing for the Court of Appeal, said there were triable issues as to duty and causation. There was, she said, evidence that the restaurant had assumed responsibility for security, on the street and sidewalk as well as on the premises themselves.
She also cited a Court of Appeal decision holding that a condominium association that negligently failed to secure the common areas could be held liable for injuries suffered by the plaintiff in the plaintiff’s own apartment.
Del Real’s attorney, Danilo Becerra of Montebello’s Moreno, Becerra, Guerrero & Casillas, said the case would send a message to businesses that “if they can’t properly provide the security, they shouldn’t hold the events.”
The restaurant management should have been aware of the possibility that gang members would show up at an event where young people were gathering, the attorney said. “The neighborhood has changed in the last 20 years,” Becerra, who has worked in the area for a number of years, told the MetNews.
Orly Degani of Horvitz & Levy, who argued the case for the defendant, said a petition for Supreme Court review was under consideration. The appellate panel, she said, “broadly widened landowner liability for third party crimes” beyond anything the California Supreme Court has permitted.
The ruling she added, is at odds with the Court of Appeal decision in Delgado v. Trax Bar & Grill, a case now under review by the state high court. The court in that case held that an assault on bar patron by a gang in a parking lot was unforeseeable as a matter of law where the defendant’s establishment, 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.
Copyright 2003, Metropolitan News Company