Filed 6/30/05 (This opn. should precede companion case, S119750, also filed 6/30/05.)
IN THE SUPREME COURT OF CALIFORNIA
MICHAEL WOLLERY DELGADO,
S117287
Plaintiff and Appellant,
Ct.App.
5
v.
F040180
TRAX BAR & GRILL,
Stanislaus
Co.
Defendant and Appellant.
Superior Court No. 227476
It is established that business proprietors such as shopping centers, restaurants, and
bars owe a duty to their patrons to maintain their premises in a reasonably safe condition,
and that this duty includes an obligation to undertake “reasonable steps to secure
common areas against foreseeable criminal acts of third parties that are likely to occur in
the absence of such precautionary measures.” (Ann M. v. Pacific Plaza Shopping Center
(1993) 6 Cal.4th 666, 674 (Ann M.); see also Taylor v. Centennial Bowl, Inc. (1966) 65
Cal.2d 114, 121, and cases cited (Taylor).)
We granted review to address a related issue that has divided the Courts of
Appeal. In Mata v. Mata (2003) 105 Cal.App.4th 1121 (Mata), the appellate court,
reversing an order granting summary judgment, held that when a bar proprietor
voluntarily employs a guard on its premises, the proprietor has “assumed” a “duty to
protect” its patrons from criminal assault “and therefore the issue of foreseeability
becomes irrelevant.” (Id., at p. 1128, italics added.) In the present case, which similarly
concerns a bar at which guards (or “bouncers”) were employed, the appellate court
expressly disagreed with Mata, finding no duty owed and reversing a jury verdict for
1
plaintiff, a bar patron who was injured in a criminal attack by another patron and his
companions.
As we shall explain, although we agree with the Court of Appeal’s criticism of the
broad language of Mata, supra, 105 Cal.App.4th 1121, quoted above, we nonetheless
disagree with that court’s conclusion that the proprietor in this case could not properly be
held liable for the injury to its patron under the circumstances presented here.
Accordingly, we conclude that the judgment rendered by the Court of Appeal, reversing
the trial court’s judgment in favor of plaintiff, must be reversed.
I
This case arises out of a criminal assault that took place in the parking lot of
defendant Trax Bar & Grill (the bar or defendant) in Turlock, California. The evidence
adduced at trial, viewed in the light most favorable to the judgment (see 9 Witkin, Cal.
Procedure (4th ed. 1997) Appeal, § 359, pp. 408-410, and cases cited), is summarized
below.
On weekend nights in 1998, the bar employed two persons variously referred to
1
throughout the trial as “security people,” “security guards,” or “bouncers.” One guard
was stationed on a stool outside the bar, in the bar’s parking lot. The second guard, Jason
Nichols, was stationed inside the bar.
The bar manager testified that the guards were large and “good strong [men]”
whom the manager “thought . . . would do a good job.” He explained that he provided
the guards with the T-shirts they wore (bearing the words “Trax Security” or “Security”
on the back) and instructed them to (i) patrol the parking lot outside the bar to ensure that
persons did not congregate or consume intoxicating beverages there, (ii) check
1
Trial testimony established that “bouncer” is the common term for a person who
provides security services in a bar or other similar establishment.
2
identifications in order to keep out underage patrons, (iii) count those who entered so that
occupancy did not exceed 150 persons, and (iv) not physically intervene in any
altercation or attack, but instead telephone “911.” In response to a specific question by
plaintiff’s counsel concerning whether the bar “had any responsibility for the safety of
[its] customers in the parking lot,” the manager replied, “[t]o a certain point, yeah, to see
that they got to their car.”
The bar manager explained that the local police had recommended the no-
physical-intervention policy, but he conceded on recross-examination that the police
could take up to 20 minutes to respond. The manager explained that one purpose of the
policy was to protect the bar’s own guards, who were not trained in crowd control, from
injury.
The bar manager acknowledged that at times the bar’s guards ignored the no-
physical-intervention policy and personally interceded in fights between patrons, and that
when the guards did so they were not disciplined for a violation of procedure. Indeed, a
former guard at the Trax bar, John White (who left employment at the bar approximately
one month prior to the incident here at issue), testified as an expert (on behalf of plaintiff)
that the custom and practice of guards at local bars generally, and his own custom at the
Trax bar, was to treat the safety of patrons as a “top priority,” and to actively and
physically intervene in attacks (whether inside the bar or in an adjacent parking lot) rather
than simply to telephone 911. Finally, White testified that prior to terminating his
employment at the Trax bar, he advised the manager that security was inadequate on busy
nights.
Plaintiff Michael Wollery Delgado and his wife Linette Louise Wollery Delgado
arrived at the Trax bar approximately 10:00 to 10:30 on a Saturday night in November
1998. Plaintiff, who stood six feet one inch tall and weighed 230 pounds, had consumed
two beers earlier in the evening. After entering the bar, and over the course of the
following 60 to 90 minutes, he consumed one more beer. During this time another
3
patron, Jacob Joseph (whom plaintiff did not know), and Joseph’s three or four
companions, stared at plaintiff on numerous occasions, and plaintiff stared back at the
group. There was no verbal or physical interaction between plaintiff and Joseph or his
companions at that time.
Prior to midnight plaintiff had become uncomfortable as a result of the continued
staring and decided to leave. Although somewhat inconsistent testimony was presented
to the jury concerning the events that immediately ensued leading to plaintiff’s injuries,
the jury could have found from the evidence the following: (1) plaintiff’s wife
approached Nichols (the interior guard) and expressed concern that “there was going to
2
be a fight”; (2) Nichols himself then observed the hostile stares between plaintiff and
3
Joseph and his companions and concluded that a fight was imminent; (3) Nichols
determined that, under the circumstances, it would be best to ask plaintiff and his wife to
4
leave, and Nichols made that request; (4) plaintiff and his wife thereafter left the bar, but
5
Nichols did not escort them to their car in the parking lot; (5) when plaintiff and his wife
2
Nichols so testified. On redirect examination, however, plaintiff’s wife explicitly
denied having told Nichols that she feared a fight would occur.
3
Nichols, who described himself as the bar’s “head of security,” testified that he
observed plaintiff staring at Joseph, and Joseph (who was talking on a cell phone) staring
back at plaintiff. Nichols explained that no words were spoken between the two but that
Joseph continued to “blatant[ly] stare” at plaintiff. Nichols also stated that, based upon
these observations, he anticipated that a fight was in the offing: “Usually from the past
[of] what I saw in that bar, that meant there was, you know, going to be a fight.”
4
Nichols testified that he “went up to [plaintiff and] told him . . . I’m going to have
to ask you to leave.” According to Nichols, plaintiff responded, “that’s no problem” and
began to walk out of the bar. Nichols explained that he undertook these measures to
“remove the threat,” and that he elected to remove plaintiff rather than the others because
“one guy is easier to move than four people.”
5
Plaintiff and his wife so testified. Nichols, however, asserted that he escorted
plaintiff to the parking lot and that when the assault upon plaintiff began, he attempted to
protect plaintiff and suffered injuries to himself in the process. No other testimony
(footnote continued on following page)
4
began to walk through the parking lot toward their car, which was parked approximately
40 feet from the bar door, the guard who earlier had been posted outside no longer was
present, but 12 to 20 men were “standing” in the parking lot; (6) this situation was
contrary to the bar’s policy of dispersing such gatherings; and (7) Joseph and his
companions followed plaintiff into the parking lot and accosted him, and the other
6
persons who were in the parking lot joined with Joseph in the assault.
Immediately after the attack, or perhaps during the course of it, the other security
guard telephoned 911 to seek police assistance. The police arrested Joseph at the scene,
and he subsequently was convicted of felony assault upon a plea of no contest. Plaintiff
suffered a fractured skull and a subdural hematoma, was hospitalized for 16 days, and
subsequently experienced adverse personality changes as well as chronic headaches.
Plaintiff filed a personal injury suit against Trax Bar and Grill, Southern Pacific
Transportation Company (the landlord), and Joseph; plaintiff’s wife sued the same parties
for loss of consortium. At the outset of the trial plaintiff’s wife dismissed her suit, and
(footnote continued from preceding page)
supported Nichols’s assertions in this respect, and the parties stipulated that the extensive
police reports concerning the events do not mention Nichols’s name.
6
Nichols testified that as plaintiff walked toward the car, Joseph, accompanied by
three or four men from inside the bar, followed plaintiff outside and said something to the
effect of “well, what’s up?” Plaintiff responded similarly, and at that point, according to
Nichols, “the four guys ran toward [plaintiff],” who “began to prepare to defend himself
and there was a fight.” Nichols testified that very soon thereafter Joseph, who is of
Assyrian heritage, called out in Assyrian, and that 12 to 20 additional men immediately
appeared from the area containing a dumpster and parked cars and began to assault
plaintiff. Plaintiff testified that because he wished to protect his wife from danger from
the attackers, he ran out of the parking lot and crossed the street, where he was followed
by five or six men from the group. Once there he was beaten by Joseph and at least one
other person with a stick or baseball bat. Plaintiff’s wife testified that members of the
group restrained her and taunted, “watch, watch. And they used some foul language [and
said] [y]our husband is not so big now; is he?”
5
plaintiff dismissed the landlord as a defendant. Thereafter, following opening statements,
the parties stipulated that Joseph had been convicted of a felony, had filed for bankruptcy
protection, and no longer was a party to the case.
Trial continued against the Trax bar only, on a premises liability theory. The
7
jury was instructed pursuant to BAJI No. 3.11, concerning foreseeability and
8
negligence; BAJI No. 3.13.1, concerning the duty to anticipate criminal conduct of a
9
third person; and BAJI No. 8.23, concerning the duty of care owed by the proprietor of a
7
That instruction provided: “One test that is helpful in determining whether or not
a person was negligent is to ask and answer the question whether or not, if a person of
ordinary prudence had been in the same situation and possessed of the same knowledge,
[he] [or] [she] would have foreseen or anticipated that someone might have been injured
by or as a result of [his] [or] [her] action or inaction. If the answer to that question is
‘yes,’ and if the action or inaction reasonably could have been avoided, then not to avoid
it would be negligence.”
8
That instruction provided: “When the circumstances are such that the possibility
of harm caused by the criminal conduct of a third person is, or in the exercise of due care
should be, reasonably foreseeable, it is negligence to fail to use reasonable care to prevent
such criminal act from causing [injury] or [damage].”
9
That instruction provided: “The proprietor of a business establishment owes a
duty of care to customers when they come upon the business premises at the proprietor’s
express or implied invitation. [¶] The business premises include property owned,
possessed or controlled by the proprietor. [¶] This duty of care requires the proprietor to
exercise reasonable care to discover whether accidental, negligent or intentionally
harmful acts of third persons are occurring or are likely to occur on the business
premises. If a proprietor knows, or should know that such acts are occurring or are likely
to occur, the proprietor has the further duty to either give the customer a warning
adequate to enable the visitor to avoid the harm, or otherwise to protect the visitor against
such harm. [¶] A warning will not be adequate when it is apparent that because of a lack
of time or the character of the conduct to be expected, it will not be effective to give
protection. [¶] A failure by the proprietor to perform any such duty of care is
negligence. The proprietor does not have a duty to control the misconduct of third
persons which the proprietor has no reason to anticipate, or no reasonable opportunity or
means to prevent, or which occurs on property neither owned, possessed nor controlled
by the proprietor.”
6
10
business. By a vote of 9-3 the jury returned a special verdict finding that (i) defendant
was negligent; (ii) defendant’s negligence was a substantial factor causing plaintiff’s
injuries; and (iii) defendant was 100 percent at fault. The jury awarded economic
damages of $81,391.61 (exactly $20,000 more than the amount of the medical expenses
that the parties stipulated were incurred by plaintiff as a result of the physical injuries
inflicted in the attack) and nothing for noneconomic damages (that is, nothing for pain
and suffering). Judgment was entered accordingly. Defendant moved for a new trial,
asserting that it owed no duty to protect plaintiff from assault, and that there was
insufficient evidence of breach and causation. The trial court denied the motion.
Defendant appealed, contending that because there was no evidence of prior
similar criminal assaults either on its premises or in the vicinity, the assault upon plaintiff
was unforeseeable as a matter of law, and that as a consequence it owed no duty to
11
provide a security guard and thus could not be held liable for plaintiff’s injuries.
Plaintiff responded to this argument by asserting that defendant owed him a duty of care
“because of the special relationship created by the hiring of security guards,” and that in
any event defendant had a duty to protect plaintiff once plaintiff’s wife provided
defendant with notice of the “potential problem prior to its occurrence.”
While the appeal was pending, the First District Court of Appeal, Division Four,
issued its opinion in Mata, supra, 105 Cal.App.4th 1121. In that case (further described
10
The trial court refused a broad instruction requested by defendant that would have
informed the jury that “[v]iolent criminal conduct of a third party is not foreseeable to a
restaurant owner unless there [have] been prior incidents of similar violent crime on the
premises.”
11
In addition, defendant renewed its allegation that the evidence was insufficient to
support the jury’s findings concerning negligence and causation, and further asserted that
the trial court committed instructional error in refusing its proposed special instruction,
quoted ante, footnote 10. Plaintiff cross-appealed, raising issues concerning the proper
measure of damages.
7
post, at pp. 27-28), a bar proprietor employed a guard, and while the guard was on a
break a customer, after being told to leave by the proprietor, walked outside and fired
gunshots through the front door of the bar, killing one person and wounding others. (105
Cal.App.4th at pp. 1125-1127.) The patron’s survivors sued the proprietor on a premises
liability theory. The Court of Appeal in Mata concluded that the suit should not be
resolved in favor of the defendant proprietor on summary judgment, but instead should
proceed to trial. (Id., at pp. 1129-1130.) In reaching that determination, the Court of
Appeal reasoned that because the proprietor “employed a security guard . . . , and that
guard was on duty” when the criminal assault and murder occurred, “[t]he duty to protect
had already been assumed and therefore the issue of foreseeability becomes irrelevant.”
(Id., at p. 1128; see also id., at p. 1129.)
The Court of Appeal below, responding to Mata, supra, 105 Cal.App.4th 1121,
expressly disagreed with the proposition that merely because a bar proprietor employs
guards or implements other similar measures, it thereby “assumes” a duty to protect its
patrons while they are on the premises. The Court of Appeal below further disagreed
with Mata’s conclusion that such an assumed duty renders the issue of foreseeability
“irrelevant.” Instead, the Court of Appeal held that “genuine foreseeability” of the
“particular criminal conduct” involved — here, an attack by up to five men, followed
immediately by an attack by 12 to 20 additional men — was required in order to impose a
legal duty of care upon defendant. Proceeding to apply that test, the Court of Appeal
concluded that although there was evidence establishing that prior fights had erupted in
the Trax bar parking lot, there was no evidence of any previous “coordinated gang
attack” by “a large group of assailants lying in wait in the parking lot.” Having found no
evidence of any prior similar criminal incident that would have put defendant on notice
that such an occurrence reasonably might be anticipated, the Court of Appeal concluded
that the attack upon plaintiff was unforeseeable and that defendant owed no duty to
employ guards to protect plaintiff.
8
The Court of Appeal’s opinion acknowledged (i) Nichols’s testimony that
plaintiff’s wife told Nichols of an impending fight involving her husband, and
(ii) Joseph’s testimony to the effect that those who ultimately assisted in the attack upon
plaintiff had been, in the lower court’s words, “visible and loitering in the parking lot as a
group, contrary to [defendant’s] acknowledged policy of dispersing such gatherings.”
The Court of Appeal, however, dismissed this evidence as “insufficient to establish a
duty on the part of [defendant] to prevent or intervene in” the assault upon plaintiff.
Accordingly, the Court of Appeal reversed the judgment in favor of plaintiff.
We granted review to address and resolve the conflict in these decisions of the
First District and Fifth District Courts of Appeal.
II
Although “[a]s a general principle, a ‘defendant owes a duty of care to all persons
who are foreseeably endangered by his conduct, with respect to all risks which make the
conduct unreasonably dangerous’ ” (Tarasoff v. Regents of University of California
(1976) 17 Cal.3d 425, 434-435 (Tarasoff); see generally Civ. Code, § 1714; Lugtu v.
California Highway Patrol (2001) 26 Cal.4th 703, 716, and authorities cited), it also is
well established that, as a general matter, there is no duty to act to protect others from the
conduct of third parties. (Tarasoff, supra, 17 Cal.3d 425, 435; see also Paz v. State of
California (2000) 22 Cal.4th 550, 558 (Paz); Williams v. State of California (1983) 34
12
Cal.3d 18, 23 (Williams); Rest.2d Torts, § 314.) But as explained below, courts have
12
As we explained in Tarasoff, “[t]his rule derives from the common law’s
distinction between misfeasance and nonfeasance, and its reluctance to impose liability
for the latter. (See Harper & Kime, The Duty to Control the Conduct of Another (1934)
43 Yale L.J. 886, 887.) Morally questionable, the rule owes its survival to ‘the
difficulties of setting any standards of unselfish service to fellow men, and of making any
workable rule to cover possible situations where fifty people might fail to rescue . . . .’
(Prosser, Torts (4th ed. 1971) § 56, p. 341.)” (Tarasoff, supra, 17 Cal.3d at p. 435, fn. 5.)
9
recognized exceptions to the general no-duty-to-protect rule, one of which — the “special
13
relationship” doctrine — is dispositive in this case.
A defendant may owe an affirmative duty to protect another from the conduct of
third parties if he or she has a “special relationship” with the other person. (See 6 Witkin,
Summary of Cal. Law (9th ed. 1988) Torts, §§ 858-866, pp. 220-233; 2 Dobbs, The Law
of Torts (2001) §§ 317, 322-332 (Dobbs on Torts).) Courts have found such a special
relationship in cases involving the relationship between business proprietors such as
shopping centers, restaurants, and bars, and their tenants, patrons, or invitees.
Accordingly, in Ann M., we recognized as “well established” the proposition that a
proprietor’s “general duty of maintenance, which is owed to tenants and patrons, . . .
include[s] the duty to take reasonable steps to secure common areas against foreseeable
criminal acts of third parties that are likely to occur in the absence of such precautionary
measures.” (Ann M., supra, 6 Cal.4th 666, 674, italics added; see also Kentucky Fried
Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal.4th 814, 819 & 823-824 (Kentucky
Fried Chicken) [proprietor who has reason to believe, from observation or experience,
that the conduct of another endangers an invitee, has a duty to take reasonable steps to
protect the invitee]; Peterson v. San Francisco Community College Dist. (1984) 36
Cal.3d 799, 806 [a special relationship exists between “a possessor of land and members
of the public who enter in response to the landowner’s invitation”]; Taylor, supra, 65
Cal.2d 114, 121 [a business proprietor has a “duty to take affirmative action to control the
13
In the course of our consideration of this matter, we solicited briefing upon the
potential relevance and effect upon this case of a second exception to the no-duty-to-
protect rule — the so-called negligent undertaking doctrine. Because we conclude that
the issue before us can be resolved under the special relationship doctrine alone, we need
not and do not analyze or apply the negligent undertaking doctrine except as necessary to
explain and distinguish Mata, supra, 105 Cal.App.4th 1121 — the decision with which,
as noted earlier, the Court of Appeal below disagreed. (See post, pt. IV.)
10
wrongful acts of third persons which threaten invitees where the [proprietor] has
reasonable cause to anticipate such acts and the probability of injury resulting therefrom”;
14
further described post, at p. 19]; Rest.2d Torts, § 344.)
A. The special-relationship-based duty to provide security guards
In a series of cases we have addressed the narrow question of when the scope of a
proprietor’s special-relationship-based duty to patrons or invitees properly can be found
to include a duty to provide security guards.
In
Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112 (Isaacs), we
suggested that a proprietor (there, a hospital) might have a duty to provide guards to
protect patrons and invitees (in that case, a physician who practiced at the hospital) from
criminal attacks by third parties upon the premises, so long as such an attack was
reasonably foreseeable “in light of all the circumstances.” (Id., at pp. 126-129.) This
formulation left open the possibility that a proprietor might have a duty to provide guards
to protect against third party conduct, even in the absence of prior similar conduct putting
the proprietor on notice of the need to protect against such conduct.
In
Ann M., supra, 6 Cal.4th 666, we expressly retreated from the open-ended
formulation set forth in Isaacs. In Ann M. the plaintiff, an employee who worked at a
14
In addition to the relationship between proprietors and their tenants, patrons, or
invitees, special relationships triggering a duty to protect another from foreseeable injury
caused by a third party have been found in other contexts, including those of (i) common
carriers and passengers, (ii) innkeepers and their guests, and (iii) mental health
professionals and their patients. (See generally 6 Witkin, supra, Summary of Cal. Law,
Torts, § 859, p. 223 et seq.; Flahavan et al., Cal. Practice Guide: Personal Injury (The
Rutter Group 2004) ¶¶ 2:856 to 2:875.4; 2 Dobbs on Torts, supra, §§ 317, 322-332;
Rest.2d Torts, § 314A.) We addressed the latter special relationship in Tarasoff, supra,
17 Cal.3d 425, in which we concluded that in the circumstances of that case — in which
a patient had informed his mental health therapist of the patient’s plan to kill another
person — a special relationship was established that imposed upon the therapist a duty to
take steps designed to protect the intended victim. (Id., at p. 435 et seq.)
11
business located in a shopping center, was raped during business hours by a person who
entered her place of employment. In asserting premises liability against the defendant
shopping center, the plaintiff alleged that the defendant’s duty to maintain common areas
in a reasonably safe condition included an obligation to provide guards in those areas.
On the facts there presented, we concluded that the scope of the proprietor’s duty did not
include an obligation to provide such guards, and held that the trial court properly had
granted summary judgment for the defendant.
We began our discussion in Ann M. by noting several basic legal propositions
relating to the question of duty. We observed that the existence of a legal duty is a
question of law for the court to determine (Ann M., supra, 6 Cal.4th at p. 674), that
foreseeability is a “crucial factor” in determining the existence and scope of a legal duty
15
(id., at p. 676), and that “[f]oreseeability, when analyzed to determine the existence or
scope of a duty, is a question of law to be decided by the court” (Ann M., at p. 678). We
also acknowledged the “well established” rule that commercial proprietors (because they
generally stand in a special relationship with their tenants, patrons, or invitees) are
required to “maintain land in their possession and control in a reasonably safe condition”
15
We also pointed out in Ann M. that, in addition to foreseeability, other factors
“that courts consider in determining the existence and scope of a duty in a particular case
are: ‘. . . the degree of certainty that the plaintiff suffered injury, the closeness of the
connection between the defendant’s conduct and the injury suffered, the moral blame
attached to the defendant’s conduct, the policy of preventing future harm, the extent of
the burden to the defendant and consequences to the community of imposing a duty to
exercise care with resulting liability for breach, and the availability, cost, and prevalence
of insurance for the risk involved.’ ” (Ann M., supra, 6 Cal.4th at p. 675, fn. 5, quoting
Rowland v. Christian (1968) 69 Cal.2d 108, 113.) Although, as we noted in Tarasoff,
supra, 17 Cal.3d 425, 434, “[t]he most important of these considerations in establishing
duty is foreseeability,” as we explained in Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th
1181, 1190, footnote 2 (Sharon P.), “[t]hese other factors may dictate against expanding
the scope of a landowner’s duty to include protecting against third party crime, even
where there is sufficient evidence of foreseeability.”
12
and that this general duty includes taking “reasonable steps to secure common areas
against foreseeable criminal acts of third parties that are likely to occur in the absence of
such precautionary measures.” (Ann M., at p. 674, and cases cited.)
Explicating the proper approach to foreseeability analysis in relation to a business
proprietor’s duty to provide protection for patrons and invitees from third party crime,
we stated in Ann M.: “[B]efore and after our decision in Isaacs, we have recognized that
the scope of the duty is determined in part by balancing the foreseeability of the harm
against the burden of the duty to be imposed. (Isaacs, supra, 38 Cal.3d at p. 125.)
‘ “[I]n cases where the burden of preventing future harm is great, a high degree of
foreseeability may be required. [Citation.] On the other hand, in cases where there are
strong policy reasons for preventing the harm, or the harm can be prevented by simple
means, a lesser degree of foreseeability may be required.” [Citation.]’ [Citation.] Or, as
one appellate court has accurately explained, duty in such circumstances is determined
by a balancing of ‘foreseeability’ of the criminal acts against the ‘burdensomeness,
vagueness, and efficacy’ of the proposed security measures. (Gomez v. Ticor [(1983)]
145 Cal.App.3d [622,] 631.)” (Ann M., supra, 6 Cal.4th at pp. 678-679.)
Turning to the plaintiff’s specific claim that the proprietor’s duty to reasonably
secure the premises against foreseeable criminal acts of third parties included, in the
circumstances there presented, a legal obligation to provide guards, we stated in Ann M.
that although “there may be circumstances where the hiring of security guards will be
required to satisfy a landowner’s duty of care, such action will rarely, if ever, be found
to be a ‘minimal burden.’ The monetary costs of security guards is not insignificant.
Moreover, the obligation to provide patrols adequate to deter criminal conduct is not
well defined. ‘No one really knows why people commit crime, hence no one really
knows what is “adequate” deterrence in any given situation.’ [Citation.] Finally, the
social costs of imposing a duty on landowners to hire private police forces are also not
insignificant. [Citation.] For these reasons, we conclude that a high degree of
13
foreseeability is required in order to find that the scope of a landlord’s duty of care
includes the hiring of security guards. We further conclude that the requisite degree of
foreseeability rarely, if ever, can be proven in the absence of prior similar incidents of
[16]
violent crime on the landowner’s premises.
To hold otherwise would be to impose an
unfair burden upon landlords and, in effect, would force landlords to become the
insurers of public safety, contrary to well-established policy in this state. [Citations].”
17
(Ann M., supra, 6 Cal.4th 666, 678-679, italics added.)
Thereafter,
in
Sharon P., supra, 21 Cal.4th 1181, we further elaborated upon the
principles set forth in Ann M. In Sharon P., the plaintiff was assaulted and raped shortly
after parking her car in a dimly lighted garage located beneath the building in which she
was employed. Although there had been recent robberies in a nearby bank, and assorted
other crimes within a 50-block area surrounding the underground parking garage, there
was no evidence of the occurrence of crimes similar to the assault upon the plaintiff in or
near the parking garage — and indeed, no evidence of any crimes in the parking garage
during the previous 10 years. After the plaintiff sued the owners and operators of the
16
At this point, we observed in a footnote that evidence other than prior similar
crimes occurring on the proprietor’s premises might be adequate to establish
foreseeability. We stated: “It is possible that some other circumstances such as
immediate proximity to a substantially similar business establishment that has
experienced violent crime on its premises could provide the requisite degree of
foreseeability. Because Ann M. presented no such evidence, we need not further
consider this possibility.” (Ann M., supra, 6 Cal.4th at p. 679, fn. 7.)
17
At the close of our opinion in Ann M. we observed in a footnote that the plaintiff
had “offered no evidence to show that, like a parking garage or an all-night convenience
store, a retail store located in a shopping center creates ‘ “an especial temptation and
opportunity for criminal misconduct.” ’ [Citations.] Therefore, we need not consider in
this case whether some types of commercial property are so inherently dangerous that,
even in the absence of prior similar incidents, providing security guards will fall within
the scope of a landowner’s duty of care.” (Ann M., supra, 6 Cal.4th at p. 680, fn. 8.)
14
parking garage, the trial court granted the defendants’ motion for summary judgment.
(Sharon P., at pp. 1185-1187.) The Court of Appeal, in a divided opinion, reversed on
the basis that commercial underground parking structures are “inherently dangerous”
and, notwithstanding the absence of prior similar incidents of assaults in or near the
parking garage, a jury should be allowed to determine whether the defendant’s duty to
provide reasonable security included an obligation to provide guards or other similar
18
measures. (Id., at pp. 1187-1188.)
We granted review in Sharon P. and ultimately reversed the Court of Appeal’s
decision in that case. We found the evidence of prior crimes insufficiently similar to the
violent assault upon the plaintiff to “establish a high degree of foreseeability that would
justify imposition of . . . an obligation” on defendant’s part “to provide security guards
in their garage.” (Sharon P., supra, 21 Cal.4th at p. 1191; see also id., at p. 1195.) We
also rejected, as legally unsupported and contrary to sound public policy, the Court of
Appeal’s conclusion that underground parking facilities are, as a matter of law,
“inherently dangerous,” and hence that those who own or control them must provide
guards. (Id., at pp. 1191-1195.) Finally, we addressed the plaintiff’s contention that the
defendants had an obligation to undertake other, assertedly less burdensome security
measures, such as ensuring that the garage was brightly lighted and clean, activating and
monitoring previously installed security cameras, and requiring existing personnel to
walk periodically through the garage. (Id., at pp. 1195-1199.) We questioned whether
such other measures, in reality, would be significantly less burdensome than the hiring
of guards (id., at pp. 1196-1197), and applied the heightened foreseeability test:
“[A]bsent any prior similar incidents or other indications of a reasonably foreseeable risk
18
As observed ante, at footnote 17, we had mentioned the possibility of such an
approach in Ann M., supra, 6 Cal.4th at page 680, footnote 8.
15
[19]
of violent criminal assaults in that location,
we cannot conclude defendants were
20
required to secure the area against such crime.” (Sharon P., at p. 1199.)
In summary, as explained in Ann M., supra, 6 Cal.4th 666, and Sharon P., supra,
21 Cal.4th 1181, only when “heightened” foreseeability of third party criminal activity
on the premises exists — shown by prior similar incidents or other indications of a
reasonably foreseeable risk of violent criminal assaults in that location — does the scope
19
The disjunctive phrase was employed to acknowledge that, even in the absence of
evidence of prior similar crimes on the defendant’s premises, other circumstances — for
example, similar violent crime occurring on the premises of a nearby and substantially
similar business establishment (Ann M., supra, 6 Cal.4th at p. 679, fn. 7, quoted ante,
fn. 16) — might provide the requisite heightened degree of foreseeability.
20
Most recently we reviewed Ann M., and Sharon P., in Wiener v. Southcoast
Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1146-1148 (Wiener). The plaintiffs in
that case asserted that the defendants (a childcare center and its landlord) had a duty to
provide a stronger barrier that would have protected young children who intentionally
were killed while on a playground when a third party drove his car though a four-foot
high chain link fence separating the playground from a nearby street. After the trial court
granted summary judgment for the defendants, the appellate court reversed. (Id., at p.
1145.) On review, we concluded that the trial court properly granted summary judgment.
We found no evidence of prior similar incidents or other indications of a reasonably
foreseeable risk of violent criminal assaults in that location. We determined that the third
party criminal act in the case before us was “so outrageous and bizarre, that it could not
have been anticipated under any circumstances” (Wiener, supra, 32 Cal.4th at p. 1150),
and hence the defendants had no duty to provide a stronger fence to protect against the
crime that ultimately occurred. In the process we distinguished an appellate court
decision, Robison v. Six Flags Theme Parks Inc. (1998) 64 Cal.App.4th 1294, 1301
(finding an amusement park proprietor liable for negligent design of a parking lot,
resulting in injuries triggered by a park patron’s negligent driving), and commented that
the court in Robison had “acknowledged that our cases analyze third party criminal acts
differently from ordinary negligence, and require us to apply a heightened sense of
foreseeability before we can hold a defendant liable for the criminal acts of third parties.”
(Wiener, supra, 32 Cal.4th at pp. 1149-1150.) We concluded: “Without prior similar
criminal acts, or even any indication of prior criminal acts or intrusions of any type in the
surrounding businesses, defendants here could not have been expected to create a fortress
to protect the children . . . .” (Id., at p. 1151.)
16
of a business proprietor’s special-relationship-based duty include an obligation to
provide guards to protect the safety of patrons. (Ann M., supra, 6 Cal.4th at p. 679 &
21
fn. 7; Sharon P., supra, 21 Cal.4th at pp. 1190-1191, 1197-1198.)
B. Other special-relationship-based duties
Even when proprietors such as those described above have no duty under Ann M.
and Sharon P. to provide a security guard or undertake other similarly burdensome
preventative measures, the proprietor is not necessarily insulated from liability under the
special relationship doctrine. A proprietor that has no duty under Ann M. and Sharon P.
to hire a security guard or to undertake other similarly burdensome preventative
measures still owes a duty of due care to a patron or invitee by virtue of the special
relationship, and there are circumstances (apart from the failure to provide a security
guard or undertake other similarly burdensome preventative measures) that may give
rise to liability based upon the proprietor’s special relationship.
For example, it long has been recognized that restaurant proprietors have a special-
relationship-based duty to undertake relatively simple measures such as providing
“assistance [to] their customers who become ill or need medical attention and that they are
liable if they fail to act.” (Breaux v. Gino’s, Inc. (1984) 153 Cal.App.3d 379, 382; see
generally Rest.2d Torts, § 314A.) Similarly, a restaurant or bar proprietor also has a duty
to warn patrons of known dangers (see Rest.2d Torts, § 344) and, in circumstances in
which a warning alone is insufficient, has a duty to take other reasonable and appropriate
measures to protect patrons or invitees from imminent or “ongoing” criminal conduct.
21
In such situations — in which a proprietor is legally obligated to provide guards to
protect the safety of its patrons — the proprietor might be held vicariously liable for the
ensuing negligence of its guard (see generally 6 Witkin, Summary of Cal. Law, supra, Torts,
§ 997, p. 388 et seq.), or for its own negligence in selecting, training, supervising, or
retaining the guard (cf. Far West Financial Corp. v. D & S Co. (1998) 46 Cal.3d 796, 812).
17
(Kentucky Fried Chicken, supra, 14 Cal.4th 814, 823.) Such measures may include
telephoning the police or 911 for assistance (e.g., Johnson v. Fontana (La.Ct.App.1997)
610 So.2d 1119, 1121-1122 [duty of bar proprietor]), or protecting patrons or invitees from
an imminent and known peril lurking in a parking lot by providing an escort by existing
security personnel to a car in that parking lot. (Taylor, supra, 65 Cal.2d 114, 121-125
[duty of bar proprietor]; see generally BAJI No. 8.23 (quoted ante, at fn. 9), under which
the jury in this case was instructed.) Moreover, as especially relevant to the present case,
California decisions long have recognized, under the special relationship doctrine, that a
proprietor who serves intoxicating drinks to customers for consumption on the premises
must “exercis[e] reasonable care to protect his patrons from injury at the hands of fellow
guests” (Saatzer v. Smith (1981) 122 Cal.App.3d 512, 518 (Saatzer)), and that such a duty
“ ‘arises . . . when one or more of the following circumstances exists: (1) A tavern keeper
allowed a person on the premises who has a known propensity for fighting; (2) the tavern
keeper allowed a person to remain on the premises whose conduct had become
obstreperous and aggressive to such a degree the tavern keeper knew or ought to have
known he endangered others; (3) the tavern keeper had been warned of danger from an
obstreperous patron and failed to take suitable measures for the protection of others; (4) the
tavern keeper failed to stop a fight as soon as possible after it started; (5) the tavern keeper
[22]
failed to provide a staff adequate to police the premises;
and (6) the tavern keeper
tolerated disorderly conditions [citations].’ ” (Saatzer, supra, 122 Cal.App.3d at p. 518;
see also Slawinski v. Mocettini (1963) 217 Cal.App.2d 192, 196, and authorities cited.)
Taylor, supra, 65 Cal.2d 114, illustrates how these principles are applied. In that
case the plaintiff, a female bar patron, twice was offensively propositioned by a male
22
This aspect of the special relationship duty of bar proprietors relates to, and may
overlap, the more general duty (discussed above in pt. II.A) of business proprietors to
provide guards to protect the safety of patrons under limited circumstances.
18
patron. Although the plaintiff rebuffed the male patron’s advances, she testified she felt
she had no reason to fear him. (Id., at p. 118.) The bar employed a bouncer, who
observed and overheard these encounters. Later, as the plaintiff prepared to leave when
the bar was closing, the bouncer warned her not to “go outside because that goofball is
out there.” (Ibid.) The plaintiff replied that it was late and that she needed to depart for
home so she later could go to work. The bouncer then walked the plaintiff to the bar
door but did not escort her to her car in the parking lot. Upon arriving at her car in the
lot, the plaintiff was attacked by the male bar patron and severely injured. The plaintiff
sued the bar, claiming it was negligent in failing to provide her with adequate protection
from a known danger of imminent criminal assault. After presentation of the evidence,
the trial court issued a directed verdict for the bar. This court reversed, concluding from
the evidence that defendant’s bouncer “must have been apprised of the potential danger
to plaintiff of assault by ‘the goofball’ ”; that the bouncer’s warning did not adequately
apprise the plaintiff of the imminent danger she faced and she had a right to depart from
the bar when she elected to do so; and that the bouncer “could have easily protected her
from the danger he apparently anticipated by simply accompanying [the] plaintiff to her
car.” (Id., at pp. 123-124.) Accordingly, we held, it was a question for the jury whether
the bouncer’s “mere admonition not to enter the parking lot because ‘that goofball is out
there’ ” satisfied the defendant’s special-relationship-based duty to the plaintiff. (Id., at
p. 124.)
III
We now apply to the case before us the principles discussed above. We shall
conclude, contrary to the Court of Appeal below, that defendant owed a duty to plaintiff
pursuant to the special relationship doctrine. Prior to doing so, however, we first address
a preliminary point advocated by defendant.
19
A. Is “heightened foreseeability” always required when a plaintiff seeks
to impose a special-relationship-based duty upon a proprietor?
Defendant, supported by an amicus curiae on its behalf, asserts that a showing of
heightened foreseeability as defined by Ann M. and its progeny always is required when a
plaintiff seeks to impose special-relationship-based liability upon a proprietor related to
the criminal conduct of a third party. In support, defendant and amicus curiae rely upon
Hassoon v. Shamieth (2001) 89 Cal.App.4th 1191 (Hassoon).
In
Hassoon a customer, the plaintiff, was inside a grocery store at night when he
and the store’s employee noticed a man — known to be a drug dealer — being beaten on
the sidewalk by a group of fellow drug dealers. The store’s employee rescued the victim
and brought him inside while the attackers remained outside. Soon thereafter shots were
fired into the store, injuring the customer, who subsequently sued the proprietors and the
employee, claiming that the proprietors’ employee acted negligently in rescuing the
victim and thereby exposing the customer to the ensuing gunshots fired from outside the
store. (Hassoon, supra, 89 Cal.App.4th at pp. 1193-1194.)
Clearly, the facts in Hassoon did not implicate a proprietor’s possible obligation to
provide guards or take other similarly burdensome action designed to prevent future
crime, but instead concerned only a proprietor’s asserted duty to refrain from rescuing a
crime victim in the face of unfolding criminal activity on or near the premises and from
thereby putting the customer in danger. Nevertheless, in affirming summary judgment in
23
favor of the defendants on three separate grounds, the Court of Appeal in Hassoon
broadly stated as its first ground that “the absence of proof of prior similar incidents at
defendants’ place of business is fatal to a successful damages claim in tort” and “means
23
In affirming the granting of summary judgment, the court in Hassoon clearly
reached the correct result on its facts: Under Rowland v. Christian, supra, 69 Cal.2d 108
(quoted ante, at fn. 15), the proprietor had no duty to refrain from rescuing a person being
beaten in his presence. (Hassoon, supra, 89 Cal.App.4th at pp. 1197-1199.)
20
the shooting was not foreseeable.” (Hassoon, supra, 89 Cal.App.4th at p. 1195.) In
addition, the Court of Appeal asserted that “the requirement of ‘prior similar incidents’ is
. . . a factual precondition to premises liability.” (Id., at p. 1196.)
This aspect of the decision in Hassoon — and the similarly broad position advanced by
defendant and amicus curiae on its behalf, as well as by the dissenting opinions in this case —
is facially inconsistent with our decisions in Ann M., supra, 6 Cal.4th 666, and its progeny, all
of which, when articulating and applying the heightened foreseeability doctrine, expressly
reaffirm the sliding-scale balancing formula articulated prior to and in our decision in Isaacs,
supra, 38 Cal.3d 112, 125, under which we have recognized that, as a general matter,
imposition of a high burden requires heightened foreseeability, but a minimal burden may be
imposed upon a showing of a lesser degree of foreseeability. (See ante, at p. 13, quoting
Ann M., supra, 6 Cal.4th at pp. 678-679, which in turn quoted and followed both Isaacs,
supra, 38 Cal.3d 112, 125, and Gomez v. Ticor, supra, 145 Cal.App.3d 622, 631; Sharon P.,
supra, 21 Cal.4th at p. 1195 [same]; Wiener, supra, 32 Cal.4th at pp. 1146-1147 [same;
24
described ante, at fn. 20]; see also Kentucky Fried Chicken, supra, 14 Cal.4th 814, 819.)
24
Restating the sliding-scale balancing formulation and integrating the holdings of
our most recent cases, we observe that the guiding principles are these: In circumstances
in which the burden of preventing future harm caused by third party criminal conduct is
great or onerous (as when a plaintiff, such as in Ann M., asserts the defendant had a legal
duty to provide guards or undertake equally onerous measures, or as when a plaintiff,
such as in Sharon P. or Wiener, asserts the defendant had a legal duty to provide bright
lighting, activate and monitor security cameras, provide periodic “walk-throughs” by
existing personnel, or provide stronger fencing), heightened foreseeability — shown by
prior similar criminal incidents or other indications of a reasonably foreseeable risk of
violent criminal assaults in that location — will be required. By contrast, in cases in
which harm can be prevented by simple means or by imposing merely minimal burdens,
only “regular” reasonable foreseeability as opposed to heightened foreseeability is
required.
Contrary to the suggestion in Justice Kennard’s dissenting opinion (post, at p. ___
[at p. 7], there is nothing new or “different” in this formulation; indeed, as noted above,
this general approach has been repeatedly set forth in numerous prior opinions spanning
(footnote continued on following page)
21
Accordingly, to the extent Hassoon v. Shamieth, supra, 89 Cal.App.4th 1191,
1195, suggests that a showing of heightened foreseeability is required in all premises
liability cases — regardless of the extent of the burden sought to be imposed upon the
defendant — that aspect of Hassoon is disapproved.
B. Special relationship analysis
Turning to the application of the special relationship doctrine in the case before us,
it is undisputed that defendant, a bar proprietor, stood in a special relationship with
plaintiff, its patron and invitee, and hence owed a duty to undertake “reasonable steps to
secure common areas against foreseeable criminal acts of third parties that [were] likely
to occur in the absence of such precautionary measures” (Ann M., supra, 6 Cal.4th 666,
674) and to take such “appropriate action as is reasonable under the circumstances to
protect patrons.” (Kentucky Fried Chicken, supra, 14 Cal.4th 814, 823; see also id., at
p. 819; Taylor, supra, 65 Cal.2d 114, 121 [proprietor has duty “to take affirmative action
to control the wrongful acts of third persons which threaten invitees”] and cases cited;
Saatzer, supra, 122 Cal.App.3d at p. 518.)
To the extent plaintiff’s special-relationship-based claim rests upon an assertion
that defendant was legally required to provide a guard or guards or to undertake any
similarly burdensome measures, we initially must consider whether defendant was
obligated to do so under Ann M. and Sharon P. In this respect, of course, plaintiff was
required to demonstrate heightened foreseeability in the form of prior similar criminal
incidents (or other indications of a reasonably foreseeable risk of violent criminal assaults
in the bar or its parking lot — see ante, at fn. 19).
(footnote continued from preceding page)
at least two decades, and was most recently — and unanimously — reaffirmed only last
year in Wiener, supra, 32 Cal.4th at pages 1146-1147.
22
In considering whether plaintiff made such a showing, we reject the suggestion of
the Court of Appeal below that in order to establish heightened foreseeability under
Ann M., plaintiff was required to produce evidence not only of prior similar criminal
assaults, but of “a coordinated gang attack on an individual patron.” Heightened
foreseeability is satisfied by a showing of prior similar criminal incidents (or other
indications of a reasonably foreseeable risk of violent criminal assaults in that location)
and does not require a showing of prior nearly identical criminal incidents. (See Claxton
v. Atlantic Richfield Co. (2003) 108 Cal.App.4th 327, 339 [plaintiff victim of a violent
and racially motivated crime committed at a gas station established heightened
foreseeability by demonstrating that the premises had been the scene of numerous recent
violent crimes, although none of those prior crimes was a racially motivated crime].)
Although the record refers to a few prior altercations between patrons, we agree
with the conclusion of the Court of Appeal below that plaintiff produced insufficient
evidence of heightened foreseeability in the form of prior similar incidents or other
indications of a reasonably foreseeable risk of a violent criminal assault on defendant’s
premises that would have imposed upon defendant an obligation to provide any guard, or
additional guards, to protect against third party assaults. But the absence of heightened
foreseeability in this case merely signifies that defendant owed no special-relationship-
based duty to provide guards or undertake other similarly burdensome preventative
measures; it does not signify that defendant owed no other special-relationship-based
duty to plaintiff, such as a duty to respond to events unfolding in its presence by
undertaking reasonable, relatively simple, and minimally burdensome measures. Indeed,
the record clearly establishes the existence of such a minimally burdensome duty here.
As noted earlier, the trial record contains evidence that defendant’s employee and
guard, Nichols, was aware of facts that led him to conclude, at least a few minutes prior
to the occurrence of the assault (and prior to plaintiff’s departure from the bar), that a
fight was likely to occur between Joseph and his three or four companions and plaintiff,
23
absent some intervention on Nichols’s part. The record also establishes that Nichols
formed the opinion that in order to avoid an altercation it was necessary to separate
plaintiff from Joseph and his group by removing plaintiff from the bar while
simultaneously leaving Joseph and his group inside, and that in order to put that plan into
action Nichols approached plaintiff and directed him to depart from the bar.
Having considered the Rowland factors (Rowland v. Christian, supra, 69 Cal.2d
108, 113, quoted ante, at fn. 15) as they apply to these circumstances, we conclude, first,
that under the circumstances it was foreseeable that an assault would occur absent
separation of Joseph and his group from plaintiff. The remaining Rowland factors
similarly support a determination 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 Nichols perceived, and,
specifically, in order to accomplish the separation that he had determined was necessary.
Indeed, defense counsel essentially conceded this general point during oral argument
before this court — responding with the words “Certainly. Certainly” to a question
whether, in light of the circumstances then known to Nichols, there was “some minimal
25
duty” on the part of defendant.
25
The following exchange occurred at oral argument:
Justice Werdegar: “Now the Court of Appeal [below], as I recall, said flatly that
your client had no duty.”
Defense counsel: “Correct.”
Justice Werdegar: “May I ask you . . . doesn’t the law allow for a duty to behave
reasonably as events unfold, and we’ve had discussion about what those events were,
including . . . a member of the staff telling the victim to leave — is there not a duty to
behave reasonably, however that would be defined and whatever the foreseeability might
be — but to do something?”
Defense counsel: “Sure, and as I think your honor said in Sharon P., . . . you can’t
have a strict similar incident test, . . . there has to be some reasonable . . . .”
Justice Werdegar: “[N]ow I’m not talking about anything that had occurred
previously, I’m talking about what was happening at this time.”
(footnote continued on following page)
24
Such minimally burdensome measures may have included, for example, Nichols
attempting to maintain the separation between plaintiff and Joseph’s group that Nichols
had determined was called for in order to avoid an imminent assault, by turning his
attention to Joseph and his companions in order to dissuade them from following plaintiff
26
(who, at Nichols’s direction, was departing from the bar). And, in the face of the
continuing threat of a five-on-one altercation if Nichols were unable to dissuade Joseph
and his companions from following plaintiff outside, defendant also might have
confirmed that the outside guard was at his post in the parking lot and was available, as
necessary, to help maintain the desired separation between plaintiff and Joseph and his
companions. (See Taylor, supra, 65 Cal.2d 114, 123-125 [duty of bar proprietor to
respond to imminent criminal conduct]; Kentucky Fried Chicken, supra, 14 Cal.4th 814,
(footnote continued from preceding page)
Defense counsel: “Right.”
Justice Werdegar: “There was tension, there was a group, a member of the staff
saw sufficiently to tell the victim to leave . . . . [W]ouldn’t there be some minimal duty
within that context, [even] if nothing had ever happened in this establishment before?”
Defense counsel: “Certainly. Certainly. But I, again I, which leads us to whether
or not that . . . duty would extend to protecting this gentleman from . . . what he
suffered.” (Italics added.)
26
We stress that, in light of the clear foreseeability of an imminent assault absent
separation of Joseph and his group from plaintiff, defendant’s duty was to attempt to
dissuade Joseph and his group from following plaintiff. Contrary to implications in
Justice Kennard’s dissenting opinion, we do not suggest that defendant had a duty to
guarantee that separation, or, for that matter, to prevent any resulting attack and injury to
plaintiff.
The question whether the ultimate group attack upon plaintiff in the parking lot
would not have occurred had Nichols successfully dissuaded Joseph and his companions
from following plaintiff implicates the sufficiency of the evidence to support the jury’s
implied findings of breach of duty and causation — issues that are not relevant to, and do
not influence, our analysis of whether defendant owed a duty of care under the
circumstances.
25
823 [restaurant proprietor has a duty to respond to ongoing conduct by taking “such
appropriate action as is reasonable under the circumstances to protect patrons”]; Saatzer,
supra, 122 Cal.App.3d 512, 518 [a bar proprietor’s duty to protect patrons “ ‘arises . . .
when . . . the tavern keeper had been warned of danger from an obstreperous patron and
27
failed to take suitable measures for the protection of others.’ ”].)
27
In reaching a contrary conclusion, Justice Kennard’s dissenting opinion asserts
that “the existence and scope of a business owner’s duty to protect against a threat of
future criminal activity, imminent or otherwise, depends on the foreseeability of the sort
of criminal conduct that actually occurred. . . . As I have explained, the vicious group
attack that occurred outside the restaurant was not reasonably foreseeable.” (Post, at p.
___ [at p. 9], italics added.)
It is well established that the scope of a defendant’s duty in this context is
premised upon the danger that the defendant knows or reasonably should anticipate, and
that the defendant’s duty is simply to take reasonable steps in light of those
circumstances. As a matter of logic, it is difficult to understand how the existence or
scope of a proprietor’s duty properly could depend upon the nature of the criminal
conduct “that actually occurred,” rather than the danger of which the defendant was or
should have been aware.
In this case, the dissent appears to acknowledge that there is sufficient evidence to
support a determination that defendant’s employee Nichols reasonably foresaw a four (or
five)-on-one assault involving Joseph and his three or four companions, on the one hand,
and plaintiff, on the other. The dissent apparently reasons, however, that because
defendant did not and reasonably could not foresee what “actually occurred” — that is,
that Joseph and his companions would gain a large number of reinforcements in the
parking lot — defendant had no duty even to take the steps necessary to attempt to
maintain the separation that Nichols had determined was called for to avoid the more
limited group attack that Nichols actually anticipated. But the circumstance that the
precise size of the actual gang attack that occurred may not have been reasonably
foreseeable does not absolve defendant of the duty to take reasonable steps based upon
the nature of the danger that its employee could (and, indeed, did) foresee.
As noted above, the question whether there is sufficient evidence to support the
jury’s implied findings that defendant breached its duty of care and that such breach was
a proximate cause of plaintiff’s injury is distinct from the issue addressed here —
namely, whether defendant owed a duty of care to plaintiff under the circumstances of
this case.
26
IV
As noted at the outset of this opinion, we granted review in this matter largely in
light of the conflict between the Court of Appeal opinion in this case and the earlier Court
of Appeal opinion in Mata, supra, 105 Cal.App.4th 1121. To avoid similar conflict and
confusion in future cases, we believe it is appropriate at this time to address the Mata
decision and to explain why we, like the Court of Appeal, find some of the language and
analysis of Mata to be overbroad and potentially misleading.
In
Mata, supra, 105 Cal.App.4th 1121, a bar proprietor posted a guard inside the
front door of its bar and armed him with a billy club and a large flashlight. The guard
was instructed to monitor the number of patrons who entered the bar so as not to exceed
the room’s capacity, to inspect identifications in order to detect and keep out minors, to
check customers for weapons, and to eject unruly customers and prevent certain
“banned” customers from entering the bar or remaining on the premises. In addition, the
guard was instructed to inform the bar proprietor when he needed to take a break, so that
the proprietor could assume the guard’s responsibilities. (Id., at p. 1126.)
On the evening in question the guard on duty at the bar asked the proprietor’s
brother to assume his post while he took a restroom break. During the guard’s break a
customer, who previously had been banned from the bar and yet, earlier that same
evening, had returned to and been ejected from the bar, returned yet again to the bar and,
after again being told to leave, walked outside and immediately fired gunshots through
the front door of the bar, killing one person and wounding others. (Mata, supra, 105
Cal.App.4th at pp. 1125-1127.) The surviving relatives of the patron who was killed and
other injured patrons and their relatives sued the proprietor on a premises liability
theory.
Overturning the trial court’s grant of summary judgment for the defendant, the
Court of Appeal in Mata asserted that “Ann M. is inapposite as to [the proprietor’s
liability] because [the proprietor] employed a security guard . . . , and that guard was on
27
duty [when the criminal assault and murder occurred].” (Mata, supra, 105 Cal.App.4th at
p. 1128.) The court in Mata continued, very broadly: “The duty to protect had already
been assumed and therefore the issue of foreseeability becomes irrelevant.” (Ibid., italics
added; see also id., at p. 1129.)
Within the context of the special relationship doctrine, this broad language is
potentially misleading. Contrary to the suggestion that “the issue of foreseeability
becomes irrelevant” whenever a proprietor has employed a security guard (Mata, supra,
105 Cal.App.4th at p. 1128), the foreseeability of the criminal conduct in question
remains relevant to the existence and scope of a proprietor’s duty under the special
relationship doctrine. For example, foreseeability remains highly relevant in determining
the existence and scope of any duty, discussed above, to warn of dangers or to take
appropriate measures to protect patrons or invitees from ongoing or imminent criminal
conduct.
Based upon the language quoted above, it also appears that the Court of Appeal’s
determination in Mata, supra, 105 Cal.App.4th 1121, that a duty existed in that case,
may have been influenced by the appellate court’s understanding of a related but
separate doctrine — the negligent undertaking doctrine. Our cases establish that a
volunteer who, having no initial duty to do so, undertakes to provide protective services
to another, will be found to have a duty to exercise due care in the performance of that
undertaking if one of two conditions is met: either (a) the volunteer’s failure to exercise
such care increases the risk of harm to the other person, or (b) the other person
28
reasonably relies upon the volunteer’s undertaking and suffers injury as a result. Even
28
See Williams, supra, 34 Cal.3d 18, 23 et seq. (discussing circumstances in which
police officers will be found to have undertaken an affirmative duty owed to members of
the public); Weissich v. County of Marin (1990) 224 Cal.App.3d 1069, 1077 (“Liability
may be imposed on a person who has no general duty to act, but who has voluntarily
assumed a protective duty toward an individual and undertakes action on his or her
(footnote continued on following page)
28
if the court in Mata may have been influenced by that doctrine, however, the decision’s
broad language failed to recognize the important limitations and qualifications of that
doctrine.
Mata indicated in expansive terms that by hiring a guard a proprietor necessarily
assumes a general duty to protect its patrons. We disagree. First, the scope of any duty
assumed depends upon the nature of the undertaking. (See Artiglio, supra, 18 Cal.4th
604, 614-615.) Merely because a supermarket or other similar enterprise “chooses to
have a security program” that includes provision of a roving security guard does not
(footnote continued from preceding page)
behalf, thereby inducing reliance”); see also Schwartz v. Helms Bakery, Ltd. (1967) 67
Cal.2d 232, 238-244 (describing the negligent undertaking theory of liability as “[f]irmly
rooted in the common law,” and finding that liability could be premised upon a breach of
the duty undertaken); see generally Paz, supra, 22 Cal.4th 550, 558-562 (recognizing
potential duty to act pursuant to the negligent undertaking doctrine, but finding no such
undertaking, and hence no duty, in litigation concerning delayed installation of a traffic
signal); Artiglio v. Corning, Inc. (1998) 18 Cal.4th 604, 613-618 (Artiglio) (recognizing
potential duty to act pursuant to the negligent undertaking doctrine, but finding no such
undertaking, and hence no duty, in litigation concerning safety of silicone breast
implants); 6 Witkin, Summary of Cal. Law, supra, Torts, section 868, page 234; 2 Dobbs
on Torts, supra, section 319, pages 860-864.
This negligent undertaking doctrine (sometimes referred to as the “Good
Samaritan” rule, but in actuality an exception to that rule) is reflected in Restatement
Second of Torts, sections 323 and 324A. Section 323 addresses cases concerning a duty
assumed by a defendant to another. (See Williams, supra, 34 Cal.3d 18, 23; see also
Blankenship v. Peoria Park Dist. (Ill.Ct.App. 1994) 647 N.E.2d 287, 291-292
[swimming pool operator undertook duty to provide lifeguard to protect adult swimmer];
Feld v. Merriam (Pa. 1984) 485 A.2d 742, 746-747 (Feld) [apartment complex landlord
undertook duty to provide security guards]; Wilson v. Texas Parks and Wildlife Dept.
(Tex. 1999) 8 S.W.3d 634, 635-636 [park district undertook to provide siren warning of
impending flood]; Nelson by and Through Struckman v. Salt Lake City (Utah 1996) 919
P.2d 568, 573 [state undertook to erect and maintain fence between park and nearby
river].) Similarly, section 324A of the Restatement addresses cases concerning a duty
assumed by a defendant to third persons. (See Paz, supra, 22 Cal.4th 550, 559; Artiglio,
supra, 18 Cal.4th 604, 613-614.)
29
signify that the proprietor has assumed a duty to protect invitees from third party
violence. (Brown v. Schnuck Markets, Inc. (Mo.Ct.App.1998) 973 S.W.2d 530, 535.) A
store that hires a “security officer” to guard its interior “cash office” for three hours each
day does not assume a duty to protect a customer who is injured in the store’s exterior
parking lot by the criminal act of a third party. (See Posecai v. Wal-Mart Stores, Inc.
(La. 1999) 752 So.2d 762, 764, 769 & fn. 7.) Second, as noted above, a defendant’s
undertaking will support the finding of a duty to another only if (a) the defendant’s action
increased the risk of harm to another, or (b) the other person reasonably relied upon the
undertaking to his or her detriment. (Williams, supra, 34 Cal.3d 18, 23; Weissich v.
County of Marin, supra, 224 Cal.App.3d 1069, 1077.) The court in Mata did not
consider whether the imposition of liability in that case was consistent with these
limitations.
Finally, contrary to the implications of Mata’s broad language (Mata, supra, 105
Cal.App.4th at p. 1128), foreseeability remains a highly relevant factor — even in cases
in which a legal duty is found (and regardless of the doctrine under which it is found).
For example, even when a proprietor voluntarily has employed one or more guards and
properly is found to owe a duty to patrons, foreseeability remains relevant to the
factfinder’s determination of breach and causation.
V
We conclude that the Court of Appeal below erred in reversing the trial court’s
judgment in favor of plaintiff on the ground that defendant owed no duty to plaintiff.
Instead, as explained above, because defendant had actual notice of an impending assault
involving Joseph and plaintiff, its special-relationship-based duty included an obligation
to take reasonable, relatively simple, and minimally burdensome steps to attempt to avert
that danger. Whether there was sufficient evidence to support the jury’s determinations
of breach of duty and causation are matters, among others, to be addressed by the Court
of Appeal on remand.
30
The judgment of the Court of Appeal is reversed and the matter is remanded for
further proceedings to permit that court to address defendant’s remaining contentions as
well as the issues concerning damages raised by plaintiff in his cross-appeal.
GEORGE, C. J.
WE CONCUR:
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
31
DISSENTING OPINION BY KENNARD, J.
In the area of torts, one of the more difficult issues is determining when a business
owner owes a duty to protect others from the criminal acts of third parties. Contributing
to the complexity are considerations such as these: (1) the difficulty of predicting when
and under what circumstances a criminal might strike; (2) the difficulty of determining
whether the business owner should be held civilly liable for the harm caused by the third
party’s criminal conduct; (3) the need to avoid imposing a particularly onerous burden on
business owners in poor areas where the risk of criminal activity is particularly great, as
the owners will pass the burdens on to customers who, because of their poverty, are less
able to shoulder it; and (4) the concern that imposing too onerous burden on business
owners in poor areas may cause them to close their businesses or relocate to safer and
more affluent communities, thus depriving the poor of jobs and essential services.
In this case, as plaintiff Michael Delgado was leaving defendant’s restaurant, a
gang of 10 to 15 men, apparently on a prearranged signal, came out of hiding and brutally
attacked him. 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.
I.
At approximately 10:00 p.m. on Saturday, November 7, 1998, plaintiff and his
wife, together with two friends, went to the Trax Bar and Grill (Trax) in Turlock. They
parked their car in front of, and near the entrance to, the restaurant.
Trax employed two security guards: Juan Navarro and Jason Nichols, a former
police officer. Each wore a black shirt, with the word “SECURITY” in white letters on
the back of the shirt.
1
During plaintiff’s visit, another patron, Jacob Joseph, who was with three or four
companions and was unknown to plaintiff, started staring at plaintiff, who stared back.
Because the staring made plaintiff uncomfortable, he decided to leave. He, his wife, and
their two friends walked out of the front door toward their car. Plaintiff did not anticipate
any attack, and neither he nor his wife noticed anyone in the parking lot. Just before
reaching the car, plaintiff heard someone yell in a foreign language; as he turned around,
he saw Joseph. When Joseph got near him, Joseph again yelled in a foreign language, at
which point roughly a dozen men instantly surrounded and attacked plaintiff. After
getting punched, kicked, and sprayed with pepper spray, plaintiff broke free and ran
across the parking lot, through a park, and into the street, where some of the assailants
caught up with him and seriously injured him by hitting him with a baseball bat.
Plaintiff’s wife corroborated his version of events. She testified that upon
Joseph’s yell, 10 to 15 men came out of nowhere, “like they had been crouched behind
cars,” and attacked her husband. She saw her husband break free of the initial assault,
run across the parking lot, through the park, and into the street, where he was again
attacked.
According to security guard Nichols, plaintiff’s wife told him inside the restaurant
that there was going to be a fight. When he looked over he saw plaintiff and Joseph
staring at each other; the staring indicated there was going to be a fight, and he asked
plaintiff to leave. As Nichols escorted plaintiff and his companions into the parking lot,
one of the men who had been with Joseph came out and asked plaintiff, “What’s up?”
When plaintiff in turn asked, “What’s up?,” four men rushed toward plaintiff. Nichols
grabbed the arm of one of the men; at that point some 15 men suddenly appeared from
behind cars and a trash dumpster and surrounded plaintiff “like a wolf pack.” In coming
to plaintiff’s aid, security guard Nichols was injured. Nichols saw plaintiff break free and
run across the parking lot and into the street. The other guard, Juan Navarro, called 911,
2
the emergency telephone number, to report the attack. The police responded within two
to three minutes.
Called as a rebuttal witness, plaintiff’s wife denied approaching security guard
Nichols in the bar and warning him there was going to be a fight. She also disputed
Nichols’s version of events leading up to the attack.
Jacob Joseph testified that, while inside, he and plaintiff stared at each other, that
after he went outside to smoke a cigarette plaintiff came out and swore at him and put up
his hands as if to fight, that Joseph then yelled out something in Assyrian, whereupon a
group of men attacked plaintiff. Joseph said that when he came outside, several men
were already “[h]anging out in the parking lot.”
Plaintiff sued defendant, the restaurant, alleging negligence. The jury found for
plaintiff and awarded him $81,391.61 in damages. Defendant appealed. While the
appeal was pending, the First District Court of Appeal decided Mata v. Mata (2003) 105
Cal.App.4th 1121, which involved a negligence action against a business owner based on
a third party’s violent criminal act. Mata held that because the owner had employed a
security guard who was working at the time of the shooting, the “duty to protect had
already been assumed and therefore the issue of foreseeability becomes irrelevant” (id. at
p. 1128), rendering it unnecessary for the plaintiff to “prove the proprietor had notice of
prior similar acts” (id. at p. 1129). In this case, the Fifth District Court of Appeal
reversed the judgment for plaintiff based on lack of a duty, and expressly disagreed with
the Mata court’s holding on foreseeability. We granted review to resolve the conflict.
I agree with the majority that the court in Mata v. Mata, supra, 105 Cal.App.4th
1121, erred in saying that in that case foreseeability was irrelevant. (Maj. opn., ante, at p.
28.) But I disagree with the majority’s conclusion that defendant here owed plaintiff a
duty to anticipate and take precautions against the unforeseeable violent criminal gang
assault that led to plaintiff’s injuries.
3
II.
Did defendant business owner owe plaintiff a duty to take advance precautions to
protect plaintiff from the vicious and violent gang assault he suffered? The answer is no,
because the attack could not have been reasonably foreseen.
The existence and the scope of a duty owed is a question of law to be decided by
the court. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 (Ann
M.).) Whether a duty exists depends on considerations of policy. (Rowland v. Christian
(1968) 69 Cal.2d 108, 112-113.) As a leading treatise has observed, duty “is only an
expression of the sum total of those considerations of policy which lead the law to say
that the plaintiff is entitled to protection.” (Prosser & Keeton, Torts (5th ed. 1984) § 53,
p. 358.) Foreseeability is an important factor in determining the existence of duty. (Ann
M., supra, 6 Cal.4th at p. 676.) It also plays a crucial role in determining proximate
cause. (Ballard v. Uribe (1986) 41 Cal.3d 564, 572, fn. 6.) But whereas a jury decides
causation, it is the court that determines whether a duty exists. (Ibid.) Here, the issue is
one of duty, not causation.
In tort law, the question of when to impose liability against a business owner for
not taking precautions against possible future criminal acts of third parties has been a
vexing one. Two basic approaches have evolved, as this court explained in Ann M.,
supra, 6 Cal.4th at pages 677-679. The totality of circumstances test applies general
principles of negligence; it takes into account such things as the nature, condition, and
location of the premises; it views foreseeability as a question of fact that turns on the
evidence. The second approach takes the view that a business owner has no duty in the
absence of a prior similar incident on the premises; in other words, it views foreseeability
as requiring the occurrence of a prior similar event before a duty to take precautionary
measures can be imposed on the business owner. (2 Dobbs, The Law of Torts (2001)
§ 324, pp. 877-878.) The discussion that follows sheds some light on how this court has
applied those two approaches.
4
In 1985, this court in Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d
112 (Isaacs), held that the existence of a business owner’s duty to anticipate criminal acts
of third parties could be established, even if there had not been a prior similar incident, by
considering the totality of circumstances, with foreseeability of harm being a question of
fact for the jury. (Id. at pp. 126, 127, 130; see also Kentucky Fried Chicken of Cal., Inc.
v. Superior Court (1997) 14 Cal.4th 814, 823-824.)
Eight years later in Ann M., supra, 6 Cal.4th 666, this court held that in the
absence of a prior similar incident, a business owner had no duty to provide security
guards to protect a plaintiff against a criminal assault by a third party. (Id. at p. 679.) In
reaching this conclusion, Ann M. revisited the totality of circumstances rule this court had
adopted in Isaacs, supra, 38 Cal.3d 112, noting there was no need in Isaacs to consider
the viability of the prior similar incident approach in order to decide the case because the
facts there disclosed ample evidence of prior third party criminal assaults. (Ann M.,
supra, 6 Cal.4th at p. 678.) Ann M. also observed that, contrary to the broadly worded
suggestion in Isaacs, foreseeability in the context of duty analysis is a question of law for
the court, not a question of fact for the jury. (Ibid.)
Six years later, in Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, we applied the
prior similar incident rule of Ann M., supra, 6 Cal.4th 666, to a business owner’s failure
to provide security measures other than hiring guards. We there held that, in the absence
of a prior similar incident or other evidence showing a foreseeable risk of a violent
criminal assault, the business owner did not owe the plaintiff a duty to deter criminal
assaults in its underground garage by keeping the garage brightly lit and clean, or by
“requir[ing] existing personnel to periodically walk through the garage.” (Id. at p. 1196.)
Most recently, in 2004, we applied the prior similar incident rule to hold that, in
the absence of a prior similar incident, the operator of a child care center did not owe a
duty to protect against a violent criminal assault by a man intentionally driving a car
through a four-foot-high chain link fence onto a playground and into a group of children.
5
(Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1150.) We noted
that “our cases analyze third party criminal acts differently from ordinary negligence, and
require us to apply a heightened sense of foreseeability before we can hold a defendant
liable for the criminal acts of third parties.” (Id. at pp. 1149-1150.)
Here, in discussing the sudden, unexpected, and vicious gang attack on plaintiff,
the Court of Appeal noted that “[n]othing even remotely similar” had ever occurred
before on defendant’s premises, and thus the assault on plaintiff could not have been
foreseen. In reaching this conclusion, the Court of Appeal relied on this court’s decision
in Ann M., supra, 6 Cal.4th 666. Indeed, like the plaintiffs in Ann M., supra, 6 Cal.4th
666, Sharon P. v. Arman, Ltd., supra, 21 Cal.4th 1181, and Wiener v. Southcoast
Childcare Centers, Inc., supra, 32 Cal.4th 1138, plaintiff here was the victim of a
criminal assault by a third party. As the Court of Appeal noted, and as the majority here
concedes (maj. opn., ante, at p. 23), there had been no prior similar attacks at Trax.
Although in the past there had been some altercations between patrons, none involved
gang fights or gang attacks on patrons. (See Alvarez v. Jacmar Pacific Pizza Corp.
(2002) 100 Cal.App.4th 1190, 1212 [“Absent foreseeability of the particular criminal
conduct, there is no duty to protect plaintiff from that particular type of harm”].)
The majority here goes far beyond this court’s recent decisions in Ann M., supra, 6
Cal.4th 666, and its progeny. Anyone reading this court’s decisions in Ann M., supra, 6
Cal.4th 666, Sharon P. v. Arman, Ltd., supra, 21 Cal.4th 1181, and Wiener v. Southcoast
Childcare Centers, Inc., supra, 32 Cal.4th 1138, would conclude that (1) the prior similar
incident rule applies to premises liability claims against business owners for failing to
take precautions against possible future criminal conduct of third parties when the
conduct is a criminal assault by a third party, and that (2) as suggested in Kentucky Fried
Chicken of Cal., Inc. v. Superior Court, supra, 14 Cal.4th at pages 823-824, the totality of
circumstances rule applies when the business’s owner or employees become aware that
criminal conduct is ongoing or imminent.
6
Relying on certain language in Wiener v. Southcoast Childcare Centers, Inc.,
supra, 32 Cal.4th 1138, the majority announces a different rule in which the existence of
a business owner’s duty to prevent harm from third-party criminal acts is determined
through a “sliding-scale” approach by balancing the degree of foreseeability of harm
against the weight of the burden that a particular preventive measure would impose on
the business owner. (Maj. opn., ante, at p. 21.) Turning to the facts of this case, the
majority asserts that the restaurant owner had a duty to take minimally burdensome
actions, such as having security guard Nichols try to dissuade Joseph from following
plaintiff as he left the restaurant because some sort of criminal assault was foreseeable.
(Maj. opn., ante, at p. 25.) Thus, instead of focusing on whether what occurred at the
restaurant was foreseeable, the majority decides that here the owner owed a duty to
plaintiff because the owner’s employee (the security guard) could have done something
different that might have broken the causal chain of events. “While causation is an
indispensable element of negligence liability, it is neither the only element, nor a
substitute for ‘duty.’ ” (Hegyes v. Unjian Enterprises, Inc. (1991) 234 Cal.App.3d 1103,
1134.) Because there are numerous causes of any event that precede its occurrence, it is
always possible to point to something that could have been done differently, and the
majority’s approach is perilously close to imposing liability that has no limits.
In this case, whether one applies the prior similar incident approach or the totality
of circumstances approach, the result is the same: no liability on the part of the business
owner. As I discussed earlier, the Court of Appeal noted the absence of any prior
criminal acts similar to the gang assault here in concluding that the vicious attack on
plaintiff by a gang of 10 to 15 men who suddenly came out of hiding was not an event
that the owner could reasonably have foreseen, thus precluding liability.
The result is the same under the totality of circumstances approach, which applies
general principles of negligence. As noted earlier, foreseeability is a crucial
consideration in determining the existence of a duty. (Ann M., supra, 6 Cal.4th at p. 678;
7
Issacs, supra, 38 Cal.3d at pp. 123-124.) It is the general character of the event that is
required to be foreseeable. (Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 57-
58.) Here, the hostile staring by Joseph and the reported statement by plaintiff’s wife that
a fight seemed imminent were insufficient to alert defendant business owner to the
likelihood that a brutal gang assault on plaintiff by 10 to 15 men would later occur
outside the restaurant. Viewing the totality of the circumstances known to the
restaurant’s employees, that form of violent criminal conduct was unforseeable.
The majority faults defendant for failing to “address the imminent danger” (maj.
opn., ante, at p. 24) because security guard Nichols did not try to stop Joseph from
leaving the restaurant. But the existence and scope of a business owner’s duty to protect
against a threat of future criminal activity, imminent or otherwise, depends on the
foreseeability of the sort of criminal conduct that actually occurred. (See Sharon P. v.
Arman, Ltd., supra, 21 Cal.4th at p. 1195 [“defendants’ duty of care did not include the
hiring of security guards for the garage because the bank robberies were not sufficiently
similar to the sexual assault crime to establish a high degree of foreseeability]; Lopez v.
McDonald’s Corp. (1987) 193 Cal.App.3d 495, 510-511 [existence of prior crimes on
business premises in high crime area, including two robberies, did not make massacre by
armed criminal reasonably foreseeable]; Gregorian v. National Convenience Stores, Inc.
(1985) 174 Cal.App.3d 944, 950 [“[w]hile the proprietor of an allnight convenience store
may . . . reasonably anticipate that his place of business will be the target of armed
robbers, the same cannot be said for a crime resulting from gang violence”].) As I have
explained, the vicious group attack that occurred outside the restaurant was not
reasonably foreseeable. Once the attack occurred, security guard Navarro did call 911.
To summarize: irrespective of whether one follows the prior similar incident
approach, the totality of circumstances approach, or some intermediate “sliding scale”
approach, the conclusion is the same: the business owner here did not owe a duty to
anticipate and protect plaintiff from the violent gang assault that occurred. Providing
8
additional support for this conclusion are various policy considerations, as discussed
below.
III.
Thirty-seven years ago, in Rowland v. Christian, supra, 69 Cal.2d 108, this court
articulated certain policy considerations that determine when on person (the defendant)
owes a duty in tort to take an action to protect another person (the plaintiff) from harm.
Those considerations are: (1) the foreseeability of the harm to the plaintiff; (2) the degree
of certainty that the plaintiff suffered injury; (3) the closeness of the connection between
the defendant’s conduct and the plaintiff’s injury; (4) the policy of preventing future
harm; (5) the extent of the burden imposed on the defendant and the consequences to the
community in imposing a duty to exercise care, with resulting liability in the event of a
breach; and (6) the availability, cost, and prevalence of insurance for the risk involved.
(Id. at p. 113.)
These policy considerations support a conclusion that the business owner here did
not owe a duty to prevent plaintiff’s injuries. As demonstrated in part II above, here the
particular harm to plaintiff was not foreseeable. Although it is undisputed that plaintiff
was seriously injured in the vicious gang attack, the connection between the conduct of
defendant business owner and the harm to plaintiff is highly attenuated, and very little
moral blame can be attached to defendant’s conduct, for it was the conduct of the
criminals, not that of the business owner, that was primarily responsible, both legally and
morally, for plaintiff’s injuries. As to the burden on defendant, it is substantial. In the
absence of a prior similar incident or some other indication of a reasonably foreseeable
risk of a criminal assault, a business owner can only guess when, where, and how a
criminal assault might occur, and what protective measures among an infinite number of
possible precautions should be taken.
Particularly significant are the adverse consequences to the community of the duty
that the majority recognizes and imposes here. Although no segment of our community
9
is immune from violent crime, it is generally more prevalent in less affluent areas. (See
Kaufman, When Crime Pays: Business Landlord’s Duty to Protect Customers from
Criminal Acts Committed on the Premise (1990) 31 S. Tex. L.Rev. 89, 107-108, and
authorities cited.) In such areas, the cost to businesses of elaborate security measures is
likely to be prohibitive. In the absence of a prior similar incident, requiring business
owners to anticipate and prevent a wide array of violent criminal conduct, including
vicious group assaults like the one that occurred here, is likely to produce two
unfortunate consequences in these economically depressed areas. Some businesses may
take the elaborate precautions that the majority’s holding requires, and will pass on the
added costs to their customers in the form of higher prices (this has been referred to as a
“crime tax”), thereby increasing the costs of goods and services for the people least able
to afford the higher prices. (Id. at p. 108; Cabrera, Negligence Liability of Landowners
and Occupiers for the Criminal Conduct of Another: On a Clear Day in California One
Can Foresee Forever (1987) 23 Cal. Western L.Rev. 165, 188.) Other businesses will
simply close their doors, thereby depriving the local community of employment
opportunities as well as goods and services. Either way, the effect will be to make life
more difficult and costly for the innocent residents of crime-plagued neighborhoods.
The final policy consideration in determining the existence of a tort duty is the
availability, cost, and prevalence of liability insurance. This consideration too weighs
against recognizing a duty here. The broader the duty imposed on businesses to
anticipate and guard against violent criminal assaults on their customers and others, the
more expensive liability insurance is going to be, if it is available at all. Because the duty
that the majority imposes requires business owners to anticipate all forms of violent
criminal conduct, even when there has been no prior similar incident, insurance coverage
for this expanded liability will become more expensive and harder to obtain.
10
Accordingly, the policy considerations that this court articulated in Rowland v.
Christian, supra, 69 Cal.2d 108, support my conclusion that the business owner here
should not be held liable for not anticipating the violent criminal gang assault on plaintiff.
For all of these reasons, I dissent. I would affirm the judgment of the Court of
Appeal.
KENNARD,
J.
11
DISSENTING OPINION BY BROWN, J.
I generally agree with Justice Kennard’s dissenting opinion. The attack on
plaintiff Michael Delagado was not foreseeable. Therefore, defendant Trax Bar & Grill
had no duty to protect against third party criminal conduct. (Dis. opn. of Kennard, J.,
ante, at p. ___ [at p. 4].).) However, unlike Justice Kennard, for the reasons set forth in
my concurring opinion in Morris v. De La Torre (June 30, 2005, S119750) ___ Cal.4th
___, ___ [pp. 1-2] (conc. opn. of Brown, J.)), I do not believe our decision in Kentucky
Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal.4th 814 imposed a duty on
business owners based on ongoing criminal conduct.
BROWN, J.
1
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Delgado v. Trax Bar & Grill
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 109 Cal.App.4th 262
Rehearing Granted
__________________________________________________________________________________
Opinion No. S117287
Date Filed: June 30, 2005
__________________________________________________________________________________
Court: Superior
County: Stanislaus
Judge: Glenn Arthur Ritchey, Jr.
__________________________________________________________________________________
Attorneys for Appellant:
Law Offices of Eric G. Young, Eric G. Young; Ringhoff & Toledo, Stephen J. Ringhoff, Theressa Y. Toledo; Law
Offices of Frank J. Christy, Jr., and Frank J. Christy, Jr., for Plaintiff and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Hollingshead, Nardine, Bennett & Smith, Hollingshead, Bennett & Smith, David H. Bennett; Fatouhi • Epps •
Hilger • Gilroy and Shahab E. Fotouhi for Defendant and Appellant.
Debra J. La Fetra for Pacific Legal Foundation as Amicus Curiae on behalf of Defendant and Appellant.
1
Counsel who argued in Supreme Court (not intended for publication with opinion):
Eric G. Young
Law Offices of Eric G. Young
100 B Street, Suite 330
Santa Rosa, CA 95404
(707) 575-5005
Shahab E. Fotouhi
Fatouhi • Epps • Hilger • Gilroy
1701 Broadway
Oakland, CA 94612
(510) 834-2011
2
Opinion Information
| Date: | Docket Number: |
| Thu, 06/30/2005 | S117287 |
Parties
| 1 | Delgado, Michael Woolery (Plaintiff and Appellant) Represented by Frank Joseph Christy Law Offices of Frank J. Christy, Jr. 11 Western Avenue Petaluma, CA |
| 2 | Delgado, Michael Woolery (Plaintiff and Appellant) Represented by Stephen J. Ringhoff Ringhoff & Toledo, L.L.P. P O Box 3009 Modesto, CA |
| 3 | Delgado, Michael Woolery (Plaintiff and Appellant) Represented by Eric Gene Young Law Offices of Eric G. Young 100 B Street, Suite 330 Santa Rosa, CA |
| 4 | Trax Bar & Grill (Defendant and Appellant) Represented by Shahab E. Fotouhi Fotouhi, Epps, Hillger & Gilroy LLP 1701 Broadway Oakland, CA |
| 5 | Pacific Legal Foundation (Amicus curiae) Represented by Deborah Joyce Lafetra Pacific Legal Foundation 3900 Lennane Drive, Suite 200 Sacramento, CA |
| Disposition | |
| Jun 30 2005 | Opinion: Reversed |
| Dockets | |
| Jul 7 2003 | Petition for review filed by counsel for appellant (Michael Woolery Delgado) |
| Jul 7 2003 | Record requested |
| Jul 11 2003 | Received Court of Appeal record one doghouse |
| Jul 25 2003 | Request for depublication (petition for review pending) by counsel for appellant (Michael Woolery Delgado). |
| Aug 27 2003 | Petition for Review Granted (civil case) Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ. |
| Sep 3 2003 | Certification of interested entities or persons filed by counsel for plaintiff & appellant {Michael Woolery Delgado). |
| Sep 8 2003 | Certification of interested entities or persons filed by counsel for defendant & appellant {Trax Bar & Grill}. |
| Sep 26 2003 | Opening brief on the merits filed by counsel for plaintiff & appellant (Michael Woolery Delgado). |
| Oct 30 2003 | Received: late answer brief on the merits received in Sacramento. 11/3/03 brief received in San Francisco. |
| Nov 3 2003 | Application filed to: file a late answer brief on the merits - from counsel for appellant (Trax Bar & Grill). (Document entitled: Respondent's application for extension of time to file answer to opening brief on the merits.) |
| Nov 5 2003 | Filed: appellant's Memorandum of Points and Authorities in opposition to respondent's application for extension of time to file answer to opening brief on the merits. |
| Nov 6 2003 | Answer brief on the merits filed with permission by counsel for appellant (Tax Bar & Grill). |
| Nov 6 2003 | Change of Address filed for: Eric G. Young, counsel for appellant (Michael Woolery Delgado). |
| Nov 7 2003 | Filed: Letter from counsel for appellant Delgado advising the court that they will not be filing a reply brief. |
| Nov 8 2003 | Case Fully Briefed |
| Dec 22 2003 | Received application to file Amicus Curiae Brief by Pacific Legal Foundation in support of appellant (Trax Bar & Grill). |
| Dec 31 2003 | Permission to file amicus curiae brief granted Pacific Legal Foundation |
| Dec 31 2003 | Amicus curiae brief filed The application of Pacific Legal Foundation for permission to file an amicus curiae brief in support of appellant, Trax Bar & Grill is hereby granted. Answer due by any party within 20 days. |
| Jan 20 2004 | Response to amicus curiae brief filed by counsel for appellant Michael Woolery Delgado. Answer to AC brief of Pacific Legal Foundation. |
| Jul 27 2004 | Change of contact information filed for: Law Offices of Frank J. Christy, Jr., counsel for appellant effective August 1, 2004. Change made to party screen. |
| Dec 2 2004 | Notice of substitution of counsel filed by appellant Trax Bar & Grill. New counsel: SHAHAB E. FOTOUHI w/Epps, Hillger & Gilroy LLP - replacing the law firm of Hollingshead & Assoc. |
| Dec 15 2004 | Supplemental briefing ordered The court solicits from the parties in the above-captioned case supplemental briefing addressing the effect, if any, of the "negligent undertaking" doctrine upon the duty question presented in this case. (See Williams v. State of California (1983) 34 Cal.3d 18, 23 et seq.; Weissich v. County of Marin (1990) 224 Cal.App.3d 1069, 1077 et seq.; 6 Witkin, Summary of Cal. Law (9th ed. 1988), Torts, ? 868, p. 234 et seq.; see also Paz v. State of California (2000) 22 Cal.4th 550, 558-562; Artiglio v. Corning, Inc. (1998) 18 Cal.4th 604, 613-618; Schwartz v. Helms Bakery, Ltd. (1967) 67 Cal.2d 232, 238-244; Blankenship v. Peoria Park District (Ill.App. 1994) 647 N.E.2d 287, 291-292; Feld v. Merriam (Pa. 1984) 485 A.2d 742, 746-747; Wilson v. Texas Parks and Wildlife Dept. (Tex. 1999) 8 S.W.3d 634, 635-636; Nelson v. Salt Lake City (Utah 1996) 919 P.2d 568, 573; Rest. (2d) of Torts, ?? 323 & 324A.) In addition, the court solicits briefing addressing the effect, if any, of Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, upon the duty question presented in this case. Supplemental letter briefs shall be served and filed in the San Francisco office of the court by January 10, 2005. Answer briefs, if any, shall be served and filed in the San Francisco office of the court by January 24, 2005. |
| Dec 16 2004 | Note: Copy of order filed 12/15/04 faxed to counsel. |
| Dec 29 2004 | Received: Errata notice for answer brief on the merits from counsel for appellant (Trax Bar & Grill). (Answer brief was filed on 11/6/04) |
| Jan 10 2005 | Supplemental brief filed by appellant - Trax Bar & Grill. |
| Jan 10 2005 | Supplemental brief filed by appellant - Michael Woolery Delgado. |
| Jan 24 2005 | Filed: Answer letter brief filed by appellant - Trax Bar & Grill. |
| Mar 8 2005 | Case ordered on calendar Fri. 4/8/05 @9am - Los Angeles |
| Apr 8 2005 | Cause argued and submitted |
| Jun 30 2005 | Opinion filed: Judgment reversed and the matter is remanded for further proceedings to permit that court to address defendant's remaining contentions as well as the issues concerning damages raised by plaintiff in his cross-appeal. Majority opinion by: George, C.J.; Joined by: Baxter, Werdegar, Chin and Moreno, JJ. Dissenting Opinion By: Kennard, J. Dissenting Opinion By: Brown, J. |
| Jul 6 2005 | Note: Mail returned and re-sent Copy of opinion mailed to Deborah Lafetra @Pacific Legal Foundation. Ms. Lafetra had moved and forwarding time had expired. |
| Aug 2 2005 | Remittitur issued (civil case) |
| Aug 2 2005 | Returned record to 5DCA (two doghouses) |
| Aug 8 2005 | Received: receipt for remittitur |
| Briefs | |
| Sep 26 2003 | Opening brief on the merits filed |
| Nov 6 2003 | Answer brief on the merits filed |
| Dec 31 2003 | Amicus curiae brief filed |
| Jan 20 2004 | Response to amicus curiae brief filed |
