Supreme Court of California Justia
Docket No. S119750
Morris v. De La Torre

Filed 6/30/05 (This opn. should follow companion case, S117287, also filed 6/30/05.)

IN THE SUPREME COURT OF CALIFORNIA

CHARLES E. MORRIS IV,
S119750
Plaintiff and Appellant,
Ct. App. 4/2
v.
D040278
SILVINO DE LA TORRE,
San
Diego
Co.
Defendant and Respondent.
Superior Court No. GIS004607

As observed in the companion case, Delgado v. Trax Bar & Grill (June 30, 2005,
S117287) ___ Cal.4th ___ (Delgado), courts long have recognized that businesses such
as restaurant proprietors have a “special relationship” with their patrons or invitees, and
that this relationship imposes upon the proprietor a duty to take reasonable measures to
protect such persons against foreseeable criminal attack (id., ___ Cal.4th ___ [at pp. 10-
11]). Specifically, as we stated in Kentucky Fried Chicken of Cal., Inc. v. Superior Court
(1997) 14 Cal.4th 814 (Kentucky Fried Chicken), with respect to “ongoing” criminal
conduct that occurs in the presence of a restaurant proprietor, there is a duty to warn or
take such appropriate action as is reasonable under the circumstances to protect
patrons” and invitees. (Id., at p. 823, italics added.)
We granted review in this matter to consider the Court of Appeal’s determination
that plaintiff, who was injured by third party criminals in the parking lot of defendant’s
all-night restaurant while defendant’s employees watched from inside, stood in a special
relationship with defendant, and that defendant’s duty to take “appropriate action as is
reasonable under the circumstances” obligated the restaurant’s employees to telephone
1


911 on plaintiff’s behalf. We agree with the Court of Appeal that a special relationship
existed and that it imposed upon defendant, through its employees, such a duty, and that
there exists a triable issue of fact concerning whether defendant breached that duty when
his employees failed to make a 911 telephone call to summon aid for plaintiff.
Accordingly, we shall affirm the judgment of the Court of Appeal, which in turn reversed
the trial court’s grant of summary judgment for defendant.
I
Because plaintiff’s appeal is from a trial court order granting summary judgment
for defendant, we independently examine the record to determine whether there exist
triable issues of fact warranting reinstatement of the action. (Wiener v. Southcoast
Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142 (Wiener).) In order to prevail in an
action based upon a defendant’s alleged negligence, a plaintiff must demonstrate that the
defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that
the breach was a proximate or legal cause of his or her injuries. (Ibid.) “We have
recently observed that . . . amendments to Code of Civil Procedure section 437c . . . place
the initial burden on the defendant moving for summary judgment and shift it to the
plaintiff upon a showing that the plaintiff cannot establish one or more elements of the
action.” (Wiener, supra, 32 Cal.4th at p. 1142.)
Accordingly, in this matter we must determine whether defendant has shown that
plaintiff has not established a prima facie case of negligence. In making that assessment
on review of a grant of summary judgment for defendant, we view the evidence in the
light most favorable to plaintiff as the losing party below. (Wiener, supra, 32 Cal.4th at
1
p. 1142.)

1
Although we view the facts in the light most favorable to plaintiff, we nevertheless
require record evidence supporting those facts. Because plaintiff’s answer brief made
numerous factual allegations without citation to the record, we struck that brief and
(footnote continued on following page)
2


II
Defendant Silvino De La Torre is the proprietor of Victoria’s Mexican Food, a 24-
hour restaurant located in a small shopping center in San Diego’s Nestor area. At the
time relevant here (in mid-2000), the other five businesses in the center generally
maintained only daytime business hours. A parking area located directly in front of the
restaurant serves the entire shopping center. Under the terms of his lease, defendant
enjoys nonexclusive use of the entire parking lot and pays 20 percent of the maintenance
2
costs for that common area.
The restaurant has an approximately 40-foot-wide storefront of large plate glass
windows that afford an unobstructed view of the parking area; the restaurant posts
advertising in the windows that can be read from the parking lot. A narrow dining

(footnote continued from preceding page)
directed the filing of a new brief in compliance with the California Rules of Court, rules
29.1(b)(1) (form and content of briefs) and 14(a)(1)(C) (each brief must support any
reference to a matter in the record by a citation to the record), and we also specified in
our order that “[a]ny request to augment the record to support the content of the answer
brief must comply with the provisions of [California Rules of Court,] rule 12.” Although
plaintiff’s subsequently filed replacement brief contained citations, in many respects
those citations referred to matters that were not part of the record on appeal.
Accordingly, we ordered plaintiff to file a motion to augment the record. Plaintiff so
moved without objection, and prior to oral argument we issued an order granting that
motion..
2
Even as augmented (see ante, fn. 1), plaintiff’s appellate presentation is deficient
and we therefore must ignore a number of factual assertions made in his answer brief
without support in the citations provided by plaintiff. One such unsupported factual
assertion is plaintiff’s specific representation ⎯ which he repeated at oral argument ⎯
that “[a]fter 9:00 p.m., [the restaurant] has exclusive use of [the] parking lot located
directly in front of its premises.” The cited authority — paragraphs 18.1 and 18.2 of
defendant’s lease — contains no such express or implied “exclusive use” provision
relating to any prescribed time period, and our independent review of the record has not
disclosed any such evidence.
3


section is located in the front of the restaurant interior. A standard-height counter
separates that area from an open kitchen. At one end of the counter is a gate at counter
height, allowing access from the dining area to the open kitchen. At the other end of the
counter, between the counter and the kitchen, a private telephone is mounted on a wall
below counter height.
At approximately 1:00 a.m. on August 1, 2000, plaintiff Charles E. Morris IV,
along with his friends Bonilla, Rhodes, Miranda, and Gallegos, arrived in Gallegos’s car
and parked in the described area immediately outside the restaurant. Miranda and
Rhodes entered the restaurant to purchase food while plaintiff, Gallegos, and Bonilla
waited outside. Plaintiff, a frequent customer of the restaurant, had a stomachache and
did not plan to eat.
At about this time Richard Cuevas and Saul De La Vega arrived by car and parked
near plaintiff and his companions. Cuevas and De La Vega were members of the Nestor
Street gang. Apparently, neither plaintiff nor any of his friends were gang members.
Cuevas, approximately six feet tall and bare chested (with the word “Nestor” tattooed on
his chest in three-inch letters), approached plaintiff and his companions in a hostile
manner and asked where they lived. Immediately thereafter Rhodes and Miranda
emerged from the restaurant, and Rhodes attempted to calm Cuevas by offering to shake
hands. Cuevas replied that he was “Lobo from Nestor” and was not there to make
friends. When plaintiff responded that he was from Imperial Beach, Cuevas punched
him, at which point plaintiff’s companions began to fight in defense of plaintiff. De La
Vega threw two unopened cans of beer at plaintiff and his companions and began to rip
off his own shirt; Cuevas ran into the restaurant, yelling to its employees in Spanish slang
that he wanted a “filero” — a knife.
Inside, restaurant employees Najera, Coronado, and Hernandez, all of whom
subsequently were interviewed by the police, each watched the unfolding altercation and
saw and heard Cuevas enter the restaurant and demand a knife. Although there is
4
conflicting testimony regarding how Cuevas entered the kitchen itself, it is undisputed
that all three employees watched Cuevas depart from the kitchen with an approximately
12-inch knife. Najera told the interviewing officer that he was frightened when Cuevas
entered, and had opened the gate for Cuevas. In a subsequent deposition, however,
Najera denied having opened the gate. Coronado stated that he told Cuevas he was not
allowed to enter behind the counter, but Cuevas nevertheless barged through the
unlatched swinging gate. Hernandez stated that from the kitchen area he had seen
persons fighting and had observed Cuevas enter and demand a knife. Coronado reported
that shortly after Cuevas left the kitchen with the knife, he saw Cuevas “bend over a
person that was on the ground” and “saw him making stabbing motions.”
Approximately 25 feet from where the employees were watching from inside the
restaurant, Cuevas stabbed plaintiff at least twice. The employees continued to watch as
Cuevas chased Rhodes and Bonilla, who ran out of the parking lot and across a street.
Unable to overtake them, Cuevas returned to the car in which plaintiff and his
companions had arrived and used the knife to puncture three of its tires. Meanwhile,
Rhodes ran to a nearby fast food restaurant where he used a pay phone to call 911.
Cuevas and De La Vega drove off in their car and soon tracked down plaintiff,
who had stopped, wounded, on a nearby public sidewalk. Plaintiff was then stabbed
several more times. Three minutes and 58 seconds after Rhodes’s 911 call, police arrived
on the scene.
The entire incident, beginning with the fistfight in the parking lot immediately in
front of the restaurant and culminating with the second stabbing attack upon plaintiff,
consumed approximately seven to eight minutes. During this time, none of defendant’s
three employees telephoned the police or any other emergency personnel. Employee
Coronado, asked by an investigating officer whether he had called the police, responded
that the phone was disabled. Employee Najera eventually made the same statement by
deposition. Defendant, the restaurant’s proprietor, echoed that assertion in his own
5
deposition, stating that on the day of the assault the phone did not work and that he had
contacted Pacific Bell, which sent someone to fix the problem the next day. Defendant
possessed no record of such a repair, however, and in response to plaintiff’s subpoena,
Pacific Bell reported that it had no record of any such problem or repair.
The police arrested Cuevas approximately six months after the assault. The record
does not indicate the result of any subsequent criminal prosecution.
Plaintiff sued defendant as well as the shopping center landlord, alleging
negligence under a premises liability theory, as well as battery. The trial court initially
denied motions for summary judgment filed by defendant and the landlord, but upon
further review granted those motions a month later. The court found that that although
plaintiff had offered some evidence of prior incidents of criminal activity on or near the
premises (including various fist fights, robberies, and carjackings), much of that evidence
was inadmissible. In any event, the trial court concluded, those prior incidents were not
similar to the criminal activity that caused injury to plaintiff. The trial court also found
no competent evidence indicating that defendant or his employees created or increased
any danger faced by plaintiff.
Plaintiff sought reconsideration as to defendant only, and thereafter the trial court
reaffirmed summary judgment for defendant and entered judgment accordingly. In doing
so the trial court concluded that although there existed a factual question concerning
whether defendant’s employee Najera held open the counter gate for Cuevas, that issue
was immaterial because the low gate, even if closed or latched, would not have prevented
Cuevas from entering the restaurant’s kitchen area. The trial court also rejected
plaintiff’s assertion that defendant owed a special-relationship-based duty to assist him
during the attack that took place in full view of defendant’s employees. The trial court
reasoned that because plaintiff had remained in the parking lot with no intention of
entering the restaurant, he “was not a customer” at the time in question and hence no
special relationship existed between defendant and plaintiff.
6

Upon plaintiff’s appeal from the judgment entered in favor of defendant, the Court
of Appeal first agreed with the trial court that plaintiff’s proffered evidence of prior
criminal conduct on the premises was insufficient to establish “heightened foreseeability”
that would have required defendant to undertake preventative measures such as providing
security guards to protect his patrons. (See Delgado, supra, ___ Cal.4th ___ [at pp. 11-
17] [discussing the “heightened foreseeability” rule].) The appellate court also
determined that even if defendant’s employee, Najera, opened the counter gate for
Cuevas, the evidence showed that he acted out of fear for his own safety, and hence
defendant neither owed nor breached any duty to plaintiff in that respect, because a
proprietor in this setting “does not have a duty to protect his customers at the expense of
3
his own safety.” The Court of Appeal ultimately concluded, however, that the
circumstance that plaintiff had failed to establish that defendant had a duty to hire guards
or undertake other preventative measures to protect against future third party criminal
conduct against his patrons or invitees did not signify that defendant owed no duty to take
reasonable and minimally burdensome measures to aid plaintiff in the face of an ongoing
attack occurring upon the premises and in the presence of the proprietor’s employees.
The court concluded that such a duty existed in this case and that there were triable issues
of fact concerning breach and causation, and hence that summary judgment improperly
had been entered for defendant.

3
The Court of Appeal reasoned: “In Kentucky Fried Chicken[, supra,] 14 Cal.4th
[814] at pages 828-829, the court held the employees did not owe a duty to comply with a
robber’s demands for property to lessen the risk of injury to patrons. The facts here
present a situation converse to the situation in Kentucky Fried Chicken, but a similar
conclusion applies. Just as there is no duty for a shopkeeper to comply with an intruder’s
demands, likewise there is no duty for a shopkeeper to refrain from complying with an
intruder’s demands when the shopkeeper is acting out of actual fear for his own safety.
Duty involves the balancing of competing concerns — in this instance, the shopkeeper’s
interest in protecting his own safety as opposed to the shopkeeper’s duty to protect
customers. (See id. at pp. 825-826.)”
7



We granted review to consider whether defendant had a duty to aid plaintiff with
respect to the ongoing criminal conduct, and that issue is the sole question before us.
III
A
Duty is, of course, a question of law decided by the court. (Delgado, supra, ___
Cal.4th ___ [at pp. 12-13]; see also Ann M. v. Pacific Plaza Shopping Center (1993) 6
Cal.4th 666, 676 (Ann M.).) As a general matter there is no duty to act to protect others
from the conduct of third parties. (Delgado, supra, ___ Cal.4th ___ [at pp. 9-10].) One
exception to that general rule is found in the “special relationship” doctrine. A defendant
may owe an affirmative duty to protect another from the conduct of third parties, or to
assist another who has been attacked by third parties, if he or she has a “special
relationship” with the other person. (See Delgado, supra, ___ Cal.4th ___ [at pp. 10-11];
6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, §§ 858-866, pp. 220-233 (Witkin);
Flahavan et al., Cal. Practice Guide, Personal Injury (2004), 2:856-2:875.4; 2 Dobbs, The
Law of Torts (2001), §§ 317, 322-332 (Dobbs on Torts).)
As we also observed in Delgado, “[c]ourts 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.” (Delgado, supra, ___
Cal.4th ___ [at p. 10]; see Ann M., supra, 6 Cal.4th 666, 674 [recognizing 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”]; Kentucky Fried Chicken, supra, 14 Cal.4th
814, 819 & 823-824, 829-830 [a restaurant 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 — but that duty does not include an obligation
to comply with an armed robber’s unlawful demand that property be surrendered];
8
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”] (Peterson); Taylor v. Centennial Bowl, Inc.
(1966) 65 Cal.2d 114, 121 (Taylor), and cases cited [a bar proprietor has a “duty to take
affirmative action to control the 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”]; Rest.2d Torts, §§ 314(A), 344.)
Finally, as we explained in Delgado, even if a proprietor, such as the bar in that
case, has no special-relationship-based duty to provide security guards or other similarly
burdensome measures designed to prevent future criminal conduct (which measures are
required only upon a showing of “heightened foreseeability”), such a proprietor
nevertheless owes a special-relationship-based duty to undertake reasonable and
minimally burdensome measures to assist customers or invitees who face danger from
imminent or ongoing criminal assaultive conduct occurring upon the premises. In this
regard, we noted in Delgado that restaurant proprietors owe a special relationship-based
duty to provide “ ‘assistance [to] their customers who become ill or need medical
attention and that they are liable if they fail to act’ ” (Delgado, supra, ___ Cal.4th ___ [at
p. 17]), and, more to the point, with respect to imminent or ongoing criminal assaultive
conduct occurring in the proprietor’s presence, such proprietors have a duty to warn or
“take other reasonable and appropriate measures to protect patrons or invitees . . . .” (Id.,
at p. ___ [at p. 18], paraphrasing Kentucky Fried Chicken, supra, 14 Cal.4th 814, 823; see
also Taylor, supra, 65 Cal.2d 114, 121, 123-125; Johnson v. Fontana (La.Ct.App.1997)
610 So.2d 1119, 1121-1122 (Johnson) [restaurant proprietor whose customer threatened
to attack another customer had duty to “call[] the police for assistance”].)
9
B
1
Defendant
asserts
preliminarily that a showing of “heightened foreseeability” as
defined by Ann. M., supra, 6 Cal.4th 666, and its progeny (see generally Delgado, supra,
___ Cal.4th ___ [at pp. 11-17]) is “a prerequisite” to imposing any special-relationship-
based duty and hence to imposing liability upon a restaurant proprietor related to the
criminal conduct of a third party. Specifically, defendant argues that he had no duty to
train his employees to react reasonably to events such as occurred here, absent evidence
of other similar criminal incidents in the past that would have put him on notice to do so.
As we explained in Delgado, plaintiff’s expansive view of our heightened
foreseeability doctrine “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 [v. Huntington Memorial Hospital (1985)] 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.” (Delgado, supra, ___ Cal.4th ___ [at p.
21].)
In any event, as the Court of Appeal below observed, foreseeability analysis in a
case such as this — involving a proprietor’s duty to respond reasonably to criminal
conduct that is imminent or even ongoing in his or her presence — contrasts
fundamentally with the type of foreseeability at issue in cases such as Ann M., which
involve a proprietor’s duty to take preventative measures to guard against possible future
criminal conduct. When, as in Taylor, supra, 65 Cal.2d 114, 123-125, Delgado, supra,
___ Cal.4th ___ [at pp. 23-24], or Johnson, supra, 610 So.2d 1119, 1121-1122, assaultive
conduct is imminent — or when, as in the present case, it is actually occurring in plain
view — “it requires no mastery of metaphysical philosophy or economic risk analysis to
10
appreciate the strong possibility of serious injury” to persons against whom such
imminent or ongoing criminal conduct is aimed. (Marios v. Royal Investigation &
Patrol, Inc. (1984) 162 Cal.App.3d 193, 202.) Defendant’s employees, like the
establishments’ employees in Taylor, Delgado, and Johnson, readily could foresee the
immediate danger posed to plaintiff and his companions. The question posed in the
present case is whether those employees (as agents of defendant) owed any duty to
plaintiff to take reasonable action for his protection at some point during that ongoing
conduct. The answer depends upon whether there existed a special relationship between
defendant and plaintiff.
2
Defendant asserts that no special relationship existed between himself and plaintiff
because plaintiff, who merely accompanied his friends to the restaurant and did not plan
to eat, was not a customer at the time of the attack. As our cases disclose, however, a
special relationship exists between a business proprietor and not only its patrons or
customers, but also its invitees. (See, e.g., Kentucky Fried Chicken, supra, 14 Cal.4th
814, 819 & 823-824; Peterson, supra, 36 Cal.3d 799, 806; Taylor, supra, 65 Cal.2d 114,
121.) Moreover, courts long have recognized that a person may be an “invitee” even if
he or she is not at the time of injury a paying customer: “Prospective customers on the
premises of any business open to . . . provide services . . . are easily invitees by any
definition.” (1 Dobbs on Torts, supra, § 234, at p. 600.) Indeed, “[w]hen consistent with
the purpose for which the invitation is implicitly or explicitly issued, those who
accompany the invitee are themselves invitees.” (Id., at p. 601.) For example, in Farrier
v. Levin (1959) 176 Cal.App.2d 791 (Farrier), the plaintiff accompanied her friend to a
delicatessen, with no intent to make a purchase there. While on the premises, the plaintiff
slipped on a spilled substance and injured herself. After reviewing a number of similar
older cases and secondary authorities (id., at pp. 798-802), the Court of Appeal concluded
that “it cannot be said that the presence of the plaintiff upon the premises . . . was merely
11
tolerated. [Citation.] She was a potential customer and within the class of persons a
merchant normally desires to have observe and inspect his merchandise, whether or not
she was in a position to make a purchase on the particular evening.” (Id. at p. 803.)
Because the plaintiff in Farrier was a potential customer and hence a person whom a
proprietor desired to have visit the premises, she was an “invitee or business visitor” and
was owed a special-relationship-based duty by the proprietor. (Ibid.; see generally 6
Witkin, supra, Torts, § 918 et seq.)
More recently, and on facts similar to those in Farrier, supra, 176 Cal.App.2d
791, the Oregon Court of Appeals followed that decision and found sufficient evidence of
invitee status and hence of a special-relationship-based duty owed by the business
proprietor. (Walsh v. C & K Market, Inc. (Or.Ct.App. 2000) 16 P.3d 1179 (Walsh).) In
Walsh, the plaintiff was injured by malfunctioning mechanical doors while entering a
market. The plaintiff, like plaintiff in the present case, was a regular customer of the
business, but at the time in question merely was accompanying a friend and planned only
to visit a market employee without making any purchase. (Id., at p. 1180.) The appellate
court concluded that under either of two alternative tests of invitee status, the plaintiff
was an invitee. It reasoned that under an “invitation” test, “a person is ‘an invitee in a
store even if [the person] enter[s] only to kill time between airplanes and intend[s] to buy
nothing.’ ” (Id., at p. 1182, quoting 1 Dobbs on Torts, supra, § 234, at p. 601.)
Moreover, the court in Walsh reasoned, viewing the question under an “economic
advantage” test, “[w]hat matters is not whether the specific visit offers the prospect of
business dealings but that the visit has a reasonable connection with another visit that
does.” (Walsh, supra, 16 P.3d at p. 1183.) The court concluded that a jury reasonably
could have found that “because the [plaintiff’s] visit tended to reinforce her general habit
of shopping at defendant’s store, it provided an economic advantage to defendant.”
(Ibid.)
12

Although plaintiff, who was a long-time paying customer of the restaurant, did not
intend to purchase food from defendant’s establishment on the night in question, he was
an invitee of the restaurant at that time under the reasoning of the foregoing decisions.
Plaintiff arrived with a group of four others and parked immediately in front of the
restaurant — an area for which defendant paid extra rent and enjoyed nonexclusive
use — and two of plaintiff’s companions entered the restaurant to purchase food. As they
returned with their selections, the criminal attack upon plaintiff and his friends
commenced in full view of the restaurant’s three employees. As in Farrier, supra, 176
Cal.App.2d 791, “it cannot be said that the presence of the plaintiff upon the premises
was merely tolerated” — instead, despite plaintiff’s stomachache, he “was a potential
customer and within the class of persons a merchant normally desires to have observe and
inspect his merchandise, whether or not [he] was in a position to make a purchase on the
particular evening.” (Id., at p. 803.) And as in Walsh, supra, 16 P.3d 1179, plaintiff,
present just outside the restaurant’s door and windows while waiting for his companions
to return with their purchases, was “invited” to be and remain on the premises; moreover,
his presence there was closely connected with his companions’ purchase of food from the
restaurant. (See id., at pp. 1182-1183.) Indeed, absent the business transaction in which
his companions engaged with defendant, plaintiff most likely would not have been at that
4
scene and had his unfortunate encounter with Cuevas.

4
Presumably because plaintiff’s briefing does not address Farrier, supra, 176
Cal.App.2d 791, or Walsh, supra, 16 P.3d 1179, neither does defendant’s. Instead
defendant relies primarily upon Andrews v. Wells (1988) 204 Cal.App.3d 533 (Wells),
which he asserts is “quite similar to the case at hand.”

We disagree and find Wells inapposite. In Wells, a customer (the decedent) was
struck and killed by a car on a public road as he walked home from the defendant’s bar.
The customer had patronized the bar over a period of a few months, and on four or five
prior occasions had asked the bartender to arrange for a ride home from another patron.
On two of those prior occasions, the bartender had been able to arrange such a ride. On
the evening in question, the customer was served one drink by the bartender but was
(footnote continued on following page)
13


3
Our conclusion that plaintiff was an invitee for purposes of the special relationship
doctrine is not altered by the circumstance that the fistfight and initial stabbing incidents
occurred immediately outside the restaurant’s physical structure. It is well established
that a proprietor’s special-relationship-based duty to customers or invitees extends
beyond the structure of a premises to areas within the proprietor’s control. We find
sufficient control in this case based upon a number of factors: (1) apparently customers
and invitees regularly used the parking lot when patronizing defendant’s restaurant;
(2) defendant was aware of this use, and posted in its windows advertising that could be
read from the parking lot; (3) the area of the parking lot where the altercation and initial
stabbing occurred was directly in front of the restaurant’s windows; (4) defendant’s lease

(footnote continued from preceding page)
refused further service, because the customer appeared to be inebriated. The customer, as
on prior occasions, asked the bartender to arrange a ride home from another patron, but
the bartender was busy and did not immediately respond. Less than one minute later,
however, the bartender noticed that the customer had departed, and soon thereafter the
customer was struck by a car as he attempted to cross a road. The customer’s blood-
alcohol content was between .35 and .38 percent, indicating that he had consumed a
substantial quantity of alcohol prior to arriving at the bar. (Wells, supra, 204 Cal.App.3d
at pp. 536-537.) In an ensuing wrongful death action, the trial court granted summary
judgment for the bar proprietor and the appellate court affirmed, finding no duty under
the circumstances to arrange a ride for the customer. In the course of reaching that
conclusion, the appellate court cited and relied upon a number of cases that addressed the
negligent undertaking doctrine (id., at pp. 539-541; see generally Delgado, supra, ___
Cal.4th ___ [at pp. 28-29 & fn. 28]) and concluded, correctly, that merely because the
bartender upon receiving prior requests had managed to procure a ride home for the
customer on two occasions, the bartender was not required to “ ‘continue to render aid
indefinitely.’ ” (Wells, supra, 204 Cal.App.3d at p. 541.) The appellate court also
concluded that in any event, in view of the circumstance that the decedent left the scene
very soon after requesting a ride (and before the bartender had a chance to respond to that
request), there was no evidence indicating that the decedent customer had relied upon the
bartender to arrange a ride for him on the night in question. (Id., at p. 542.)
14


authorized the nonexclusive use of the parking area for customers’ and invitees’ cars; and
(5) a reasonable inference can be drawn that defendant realized a significant commercial
benefit from his customers’ use of the parking lot. (See Southland Corp. v. Superior
Court (1988) 203 Cal.App.3d 656, 666-667.) Indeed, at the time of the attack
(1:00 a.m.), with no other shopping center enterprise then open, the lot as a practical
matter was subject to defendant’s sole use and control.
4
Plaintiff asserts that because defendant stood in a special relationship with him,
defendant owed an obligation to respond to the criminal conduct that was ongoing in his
employees’ presence by undertaking “appropriate action as is reasonable under the
circumstances to protect [his] patrons” and invitees. (Kentucky Fried Chicken, supra, 14
Cal.4th 814, 823, italics added; see also Delgado, supra, ___ Cal.4th ___ [at pp. 24-25]
[recognizing bar proprietor’s special-relationship-based duty to respond to events that
posed an imminent danger of criminal assault upon the premises by “taking reasonable,
relatively simple, and minimally burdensome steps to address that danger”].)
Furthermore, plaintiff asserts (as does amicus curiae on his behalf) that in this instance,
measures “reasonable under the circumstances” included defendant’s employees’ use of
5
the restaurant telephone to call 911 in order to summon assistance.
Defendant contests that conclusion, as well as the Court of Appeal’s
characterization of the obligation to place a 911 call as being a “minimal safety measure

5
Contrary to the suggestions of amicus curiae on behalf of defendant, plaintiff does
not assert that defendant or his employees had a duty to “rescue” plaintiff, and of course
no such duty exists. Employees such as counter clerks, waiters, or cooks have, at most, a
duty — as “appropriate” and “reasonable under the circumstances” — to warn, to call
911, or to take other similar minimal action. (Kentucky Fried Chicken, supra, 14 Cal.4th
841, 823.) Contrary to amicus curiae for defendant, this limited duty cannot fairly be
characterized as calling for “ ‘deputization’ ” of business owners and their regular
employees, or as “ ‘inviting . . . unrestrained vigilantism.’ ”
15


that imposes no undue hardship on a business owner.” Defendant asserts that “California
courts, recognizing the difficulty of imposing liability upon a business [proprietor] for the
response of his or her employees to exigent circumstances, have generally declined to
impose liability upon the [proprietor] for ‘contemporaneous’ criminal conduct, even
where the response of the employee worsens the position of the injured customer or
invitee” — and argues that we should decline to recognize a duty on his part to respond
reasonably to ongoing criminal conduct. In support, defendant relies primarily upon
three appellate court decisions, Young v. Desert View Management Corp. (1969) 275
Cal.App.2d 294 (Young), Forrand v. Foodmaker, Inc. (1986) 182 Cal.App.3d 196
(Forrand), and Hassoon v. Shamieh (2001) 89 Cal.App.4th 1191 (Hassoon), disapproved
on other grounds in Delgado, supra, ___ Cal.4th ___ [at p. 22]).

In Young, supra, 275 Cal.App.2d 294, immediately after a robbery had occurred, a
restaurant employee asked others to “get a license number” of the robber’s car. (Id., at p.
296.) In response, another employee followed the robber into the restaurant’s parking lot,
where the robber shot him. The appellate court declined to recognize a duty owed by the
proprietor to the injured employee, noting that there was no evidence that the parking lot
was a dangerous place or that any of the restaurant employees knew that the robber
remained in the parking lot. (Id., at p. 299.) The court also commented that “in the
excitement and confusion of an armed robbery, neither victim nor spectators can be
expected to react as calmly as observers of a chess match.” (Id., at p. 297.) In a
somewhat similar case, Forrand, supra, 182 Cal.App.3d 196, 198, a restaurant employee
who had just been robbed called out “stop him,” and in response a customer left the
premises, got into his own car, and chased the robber for more than a block before
confronting him, at which point the robber shot the customer. Reversing a verdict for the
injured customer, the appellate court found the customer’s chase to have been an
unforeseeable result of the employee’s outburst, and declined to “impose a duty which
presupposes rational thought during a time which normally produces the antithesis.” (Id.,
16


at p. 201.) Finally, in Hassoon, supra, 89 Cal.App.4th 1191, a store proprietor’s clerk
noticed a victim being beaten outside the store and rescued him by bringing him inside
the establishment. In response, gunshots were fired into the store, injuring a bystander
customer. The appellate court concluded that the proprietor and the clerk owed no duty
to the customer to refrain from such a rescue. (Id., at pp. 1197-1199.)
Each of these cases, in which courts found no liability for employees’ various
verbal and physical reactions to crime occurring in their immediate presence, is
distinguishable from the present case. The defendant’s employee in Young had no duty
to avoid imploring others to procure the license plate number of the getaway car; the
defendant’s employee in Forrand had no duty to forbear from yelling “stop him” in
reference to a fleeing robber; and the defendant’s employee in Hassoon had no duty to
avoid rescuing a victim being beaten outside the store. Similarly, in the present case, had
defendant’s employees telephoned 911, defendant would not be liable for injury caused
thereby, because defendant had no duty to forbear from calling 911. But, contrary to
defendant’s suggestion, none of the foregoing cases prevents recognition of a duty to act
reasonably by telephoning 911 as appropriate in order to protect invitees from ongoing
crime. Although excitement surrounding an incident certainly is a factor in judging the
reasonableness of a defendant’s conduct, it cannot inexorably excuse a defendant from
any duty to act. (See Kentucky Fried Chicken, supra, 14 Cal.4th 814, 823.)
As the court recognized in Hassoon, supra, 89 Cal.App.4th 1191, 1197-1198, the
legal duty question is determined by applying the principles set forth in Rowland v.
Christian (1968) 69 Cal.2d 108. These factors are “the foreseeability of harm to the
plaintiff, 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
17
exercise care with resulting liability for breach, and the availability, cost, and prevalence
of insurance for the risk involved.” (Id., at p. 113, italics added.)
Most of these factors support a finding of duty in this case. The only factor upon
which defendant (and amicus curiae on his behalf) relies to argue a contrary conclusion is
the italicized one. In this respect, defendant suggests that his employees may have feared
that placing a 911 call would endanger their own safety, that society should not expect
such employees (including many teenage minors who work in fast food restaurants) to
take such action in similar circumstances, and that in any event for policy reasons there
should be no “blanket” duty to call 911 in all situations involving ongoing criminal
activity.
We agree with defendant and his amicus curiae that neither a business proprietor
nor his or her employees have an absolute obligation to call 911 in the face of ongoing
criminal conduct: in some situations, doing so actually might increase the danger to
customers or invitees or might unreasonably place proprietors or their employees in
danger. (See Helms v. Church’s Fried Chicken, Inc. (N.C.Ct.App. 1986) 344 S.E.2d 349
[robber assaulted a restaurant customer after an employee loudly told the customer to call
the police; grant of summary judgment for proprietor reversed].) Nevertheless, on the
disputed facts presented here, we disagree with defendant that the record establishes, as a
matter of law, that his employees had no obligation to telephone 911 or undertake any
other similar measure in order to summon aid for plaintiff.
As plaintiff and amicus curiae on his behalf observe, placing a 911 call is a well
recognized and generally minimally burdensome method of seeking assistance.
Although, as noted above, there may be situations in which the response that is
“appropriate and reasonable under the circumstances” includes not making such a call —
as when doing so unreasonably would increase the danger to a patron, invitee, employee,
or anyone else legally upon the premises — we find that as a general matter a proprietor’s
special-relationship-based duty to its patrons or invitees includes an obligation to make
18
such a call, or to take other similar minimal measures. (Kentucky Fried Chicken, supra,
14 Cal.4th 814, 823; Taylor, supra, 65 Cal.2d 114, 121, and cases cited; Johnson, supra,
610 So.2d 1119, 1121-1122.)
Defendant argues that just as his employees could see out the restaurant’s door and
windows, Cuevas and De La Vega likely were able to see inside. The employees, he
argues, may have feared that they might compromise their own safety if they put
themselves in a position in which they could be observed making a call from the
restaurant phone — which, defendant asserts, was “visible on the counter.” Defendant’s
specific factual allegation is belied by the record, which shows that the telephone was
mounted behind the counter and below counter height — and thus presumably could have
been used unobserved from the outside by one crouching below the counter. In any
event, although the record contains evidence indicating that the restaurant employees did
not attempt to intervene directly by attempting to prevent Cuevas from taking the knife,
because they were afraid of him, and although the record would support the conclusion
that an employee in similar circumstances reasonably might decline to call 911 out of
fear of gang retaliation, neither point establishes as a matter of law that any of
defendant’s three employees failed to call 911 because of an actual fear of Cuevas
6
specifically or of gang retaliation generally. Indeed, as noted above, the evidence
suggests that the employees failed to make such a call for other reasons unrelated to such
7
fears.

6
Amicus curiae on defendant’s behalf cites studies published in 1996 and 2000 for
the proposition that prosecutors who were surveyed considered gang intimidation of
witnesses to be a substantial problem. We do not doubt this general proposition, but it
does not establish as a matter of law that defendant’s three employees failed to call 911 at
the time in question out of fear for their own personal safety.
7
There are, for example, indications in the record that the employees may have
failed to place such a call because they wished to avoid involvement with the authorities
(footnote continued on following page)
19



On the present record, we cannot conclude as a matter of law that defendant’s
employees acted reasonably in declining to place a 911 call or undertake any other
minimally burdensome measure on plaintiff’s behalf. That disputed issue must be
resolved by a jury in connection with its determination of whether defendant breached his
duty to plaintiff.
C
Our conclusion that defendant owed plaintiff a legal duty of care of course will not
prevent defendant from presenting evidence at trial and arguing to a jury that his
employees did not in fact breach any duty owed because they acted reasonably in light of
their fear that placing a 911 call would endanger their own safety. Furthermore, even if a
jury were to find a breach of duty, it also would be required to consider whether the
breach was a proximate cause of plaintiff’s injuries — that is, whether the failure of
defendant’s employees to act caused plaintiff to incur greater injury than he would have
suffered had defendant’s employees taken appropriate action toward plaintiff as was
reasonable under the circumstances.

(footnote continued from preceding page)
due to their respective immigration status. The police found that none of the employees
possessed an official identification document such as a government identity card or
driver’s license. Moreover, employee Hernandez later explained that he had not wanted
to “get involved,” because he was “living and working here illegally.”
20


IV
For the reasons set forth above, the judgment of the Court of Appeal reversing
summary judgment in favor of defendant is affirmed.
GEORGE, C.J.
WE CONCUR:

BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.

21


CONCURRING OPINION BY KENNARD, J.

As I pointed out in my dissenting opinion in Delgado v. Trax Bar & Grill (June
30, 2005, S117287) __ Cal.4th ___, ___ [at p. 7] (dis. opn. of Kennard, J.), anyone
reading this court’s recent decisions in Ann M. v. Pacific Plaza Shopping Center (1993) 6
Cal.4th 666, and its progeny, 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 (1997) 14 Cal.4th 814, 823-824, the totality of circumstances rule
applies when the criminal conduct is ongoing or imminent. This case, involving an
ongoing criminal assault, falls within the totality of circumstances rule. (Kentucky Fried
Chicken of Cal., Inc. v. Superior Court, supra, 14 Cal.4th at p. 823.)
KENNARD,
J.
1




CONCURRING OPINION BY BROWN, J.

I concur in the judgment based on the limited facts before us. Under the specific
circumstances set forth, it could very well be the case that the employees may have been
1
minimally burdened to call 911 in the face of the ongoing criminal conduct. I, however,
write separately because I do not believe our decision in Kentucky Fried Chicken of Cal.,
Inc. v. Superior Court (1997) 14 Cal.4th 814 (KFC) compels this result.
In KFC, we decided “whether a shopkeeper owes a duty to a patron to comply
with an armed robber’s demand for money in order to avoid increasing the risk of harm to
patrons.” (KFC, supra, 14 Cal.4th at p. 817.) And we held that “there is no duty to
comply with a robber’s unlawful demand for the surrender of property. Simple refusal to
obey does not breach any duty to third persons present on the premises.” (Id. at p. 829.)
We stated that to hold otherwise and recognize a duty would be “inconsistent with the
public policy reflected in article I, section 1 of the California Constitution and Civil Code
section 50.” (Ibid.) Both article I, section 9 of the California Constitution and Civil
Code section 50 recognize the right of a person to defend property with reasonable force.
(Ibid.) KFC stands for this and nothing more. In particular, it imposed no duties on
business owners based on any ongoing criminal conduct.
Although as a society we laud and encourage individuals to come to the aid of
others in need, and we celebrate and commend heroic actions, there is a great difference

1
Of course, our holding does not establish that the employees breached any duty by
failing to do so. Indeed, the employees may have had good reasons for not making the
call. They may have feared becoming the assailants’ next victims or the possibility of
future gang retaliation if they assisted plaintiff.
1


between encouraging selfless actions and imposing liability for failing to act heroically.
The special relationship doctrine is an exception to the general rule that a business
proprietor owes no duty to protect others from the criminal acts of third parties. Thus,
this court should proceed with caution when expanding the legal obligations of business
owners, especially when the expansion of a duty in these cases may result in reduced
services and lost job opportunities in the least affluent sections of our cities. (See
Delgado v. Trax Bar & Grill (June 30, 2005, S117287) __ Cal.4th __, __ [pp. 10-11] (dis.
opn. of Kennard, J.).)
BROWN, J.
I CONCUR:
MORENO,
J.
2
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Morris v. De La Torre
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 111 Cal.App.4th 1047
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S119750
Date Filed: June 30, 2005
__________________________________________________________________________________

Court:

Superior
County: San Diego
Judge: Luis R. Vargas

__________________________________________________________________________________

Attorneys for Appellant:

Estey & Bomberger and Stephen J. Estey for Plaintiff and Appellant.

Robinson, Calcagnie & Robinson and Sharon J. Arkin for Consumer Attorneys of California as Amicus Curiae on
behalf of Plaintiff and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Daniels, Fine, Israel & Schonbuch, Michael R. Israel; Clements & Knock, Thomas V. Clements, Debra A. Stevens
and Michael M. Linley for Defendant and Respondent.

Deborah J. La Fetra and Paul J. Beard II for Pacific Legal Foundation as Amicus Curiae on behalf of Defendant and
Respondent.


1

Counsel who argued in Supreme Court (not intended for publication with opinion):

Stephen J. Estey
Estey & Bomberger
2869 India Street
San Diego, CA 92103
(619) 295-0035

Sharon J. Arkin
Robinson, Calcagnie & Robinson
620 Newport Center Drive, 7th Floor
Newport Beach, CA 92660
(949) 720-1288

Mark R. Israel
Daniels, Fine, Israel & Schonbuch
1801 Century Park East, 9th Floor
Los Angeles, CA 90067
(310) 556-7900

2


Opinion Information
Date:Docket Number:
Thu, 06/30/2005S119750

Parties
1Delatorre, Silvino (Defendant and Respondent)
Represented by Mark R. Israel
Daniels, Fine, Israel & Schonbuch, LLP
1801 Century Park East, 9th Floor
Los Angeles, CA

2Delatorre, Silvino (Defendant and Respondent)
Represented by Thomas Valentine Clements
Clements & Knock LLP
7850 El Cajon Blvd., Suite 500
La Mesa, CA

3Morris, Charles E. (Plaintiff and Appellant)
Represented by Stephen J. Estey
Estey & Bomberger, LLP
2869 India Street
San Diego, CA

4Pacific Legal Foundation (Amicus curiae)
Represented by Deborah Joyce Lafetra
Pacific Legal Foundation
3900 Lennane Drive, Ste. 200
Sacramento, CA

5Consumer Attorneys Of California (Amicus curiae)
Represented by Sharon J. Arkin
Robinson Calcagnie et al
620 Newport Ctr Dr 7FL
Newport Beach, CA


Disposition
Jun 30 2005Opinion: Affirmed

Dockets
Oct 14 2003Petition for review filed
  counsel for respondent Silvino De La Torre, DBA Victoria's Mexican Food
Oct 16 2003Record requested
 
Oct 24 2003Answer to petition for review filed
  appellant Charles Morris, IV
Oct 30 20032nd record request
 
Nov 3 2003Received Court of Appeal record
  one doghouse
Dec 10 2003Petition for Review Granted (civil case)
  Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ.
Dec 23 2003Request for extension of time filed
  to file Opening Brief on the Merits asking to February 9, 2004.
Dec 23 2003Certification of interested entities or persons filed
  counsel for respondent: Silvio De La Torre
Dec 31 2003Extension of time granted
  Respondent's time to serve and file the opening brief on the merits is extended to and including February 9, 2004.
Feb 10 2004Opening brief on the merits filed
  respondent Silvino de la Torre [rule 40k]
Feb 26 2004Request for extension of time filed
  answer brief/merits to 4-12-04>>appellant Charles Morris, IV
Mar 3 2004Extension of time granted
  Appellant's time to serve and file the answer brief on the merits is extended to and including April 12, 2004.
Apr 9 2004Answer brief on the merits filed
  by counsel for aplt. (Charles Morris, IV)
May 3 2004Request for extension of time filed
  counsel for (De La Torre) requests an extension of time to May 10, 2004 to file the reply brief on the merits and request for relief from default.
May 5 2004Extension of time granted
  Respondent's time to serve and file the reply brief on the merits is extended to and including May 10, 2004.
May 11 2004Reply brief filed (case fully briefed)
  by counsel for resp. (S. De La Torre dba Victoria's Mexican Food) (40k)
Jun 9 2004Received application to file Amicus Curiae Brief
  Pacific Legal Foundation in support of respondent (with brief)
Jun 10 2004Received application to file Amicus Curiae Brief
  Consumer Attorneys of California (with brief)
Jun 15 2004Permission to file amicus curiae brief granted
  Pacific Legal Foundation
Jun 15 2004Amicus curiae brief filed
  Pacific Legal Foundation in support of respondent. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Jun 15 2004Permission to file amicus curiae brief granted
  Consumer Attorneys of California
Jun 15 2004Amicus curiae brief filed
  Consumer Attorneys of California in support of respondent. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Jul 7 2004Response to amicus curiae brief filed
  by counsel for resp. (De LaTorre) to amicus brief of Consumer Attys of Calif.
Dec 16 2004Order filed
  The answer brief on the merits filed in this matter on April 9, 2004 is hereby stricken. Counsel is directed to serve and file a replacement brief conforming with the requirements of California Rules of Court, rule 29.1(b)(1) (form and content of briefs) and rule 14(a)(1)(C) (each brief must support any reference to a matter in the record by a citation to the court). Any request to augment the record to support the content of the answer brief must comply with the provisions of rule 12. The replacement brief shall be served and filed in the San Francisco office of this court by December 30, 2004.
Dec 22 2004Answer brief on the merits filed
  by counsel for aplt. (Morris)
Dec 28 2004Filed:
  by counsel for aplt. (Morris) Notice of Errata and Motion to Augment Record on Appeal.
Dec 30 2004Order filed
  The replacement answer brief filed in this matter on December 22, 2004, refers repeatedly to documents "attached to Appellant's Motion to Augment the Record," which motion appellant filed in the Court of Appeal below on November 8, 2002. Subsequently appellant provided a copy of that motion to this court, which this court's clerk's office stamped "received" on December 28, 2004. The record in this matter reveals that the Court of Appeal treated the motion to augment as a motion to lodge exhibits, and granted it as such, with the proviso that the lodged exhibits would be returned to appellant at the conclusion of the appeal. Because there is no indication that the various documents referred to in appellant's December 22, 2004, replacement answer brief ever have been made part of the record in this case, appellant is directed to serve and file in the San Francisco office of this court, by January 7, 2005, a motion to so augment the record in this case.
Dec 30 2004Note:
 
Jan 6 2005Received:
  from counsel for aplt. Motion to Augment Record.
Jan 7 2005Motion filed (non-AA)
  to Augment Record by counsel for aplt.
Jan 12 2005Time for filing final brief expired; case fully briefed
 
Mar 8 2005Case ordered on calendar
  Fri. 4/8/05 @9am - Los Angeles
Mar 16 2005Filed:
  Request of appellant to divide oral argument time.
Mar 16 2005Application filed to:
  Request to divide oral argument>>appellant Charles E. Morris
Mar 16 2005Order filed
  Appellant's motion to augment the record, filed January 7, 2005, is granted.
Mar 28 2005Order filed
  The request of counsel for appellant to allow two counsel to argue on behalf of appellant at oral argument is hereby granted.
Mar 28 2005Order filed
  The request of appellant to allocate to amicus curiae Consumer Attorneys of California 10 minutes of appellant's 30-minute allotted time for oral argument is granted.
Apr 8 2005Cause argued and submitted
 
Jun 30 2005Opinion filed: Judgment affirmed in full
  OPINION BY: George, C. J. --- joined by : Baxter, Werdegar, Chin, Moreno, JJ. CONCURRING OPINION BY: Kennard, J. CONCURRING OPINION BY : Brown, J -- joined by Moreno, J
Aug 2 2005Remittitur issued (civil case)
 
Aug 26 2005Received:
  receipt for remittitur from CA 4/2

Briefs
Feb 10 2004Opening brief on the merits filed
 
Apr 9 2004Answer brief on the merits filed
 
May 11 2004Reply brief filed (case fully briefed)
 
Jun 15 2004Amicus curiae brief filed
 
Jun 15 2004Amicus curiae brief filed
 
Jul 7 2004Response to amicus curiae brief filed
 
Dec 22 2004Answer brief on the merits filed
 
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