Delgado v. Trax Bar & Grill

S1 17287. Junе 2005.] [No. DELGADO, v. Plaintiff and Appellant,

MICHAEL WOLLERY GRILL, & Defendant and Appellant. TRAX BAR Counsel Toledo, J. & Eric Young; Ringhoff Stephen of Eric G. G. Young,

Law Offices Jr., and Toledo; Christy, Offices of Frank J. Theressa Y. Law Ringhoff, Jr., Plaintiff and Frank J. Christy, Appellant. Smith, Nardine, Smith, & Bennett Hollingshead, Bennett & Hollingshead, (cid:127) (cid:127) (cid:127) E. Fotouhi for Bennett; and Shahab Gilroy Fatouhi Hilger

David H. Epps Defendant and Appellant. behalf of Curiae on Foundation as Amicus La Fetra for Pacific Legal

Debra J. Defendant and Appellant.

229 Opinion

GEORGE, C. It isestablished that business such as shopping proprietors J. centers, restaurants, to their to maintain their and bars owe patrons condition, in a safe and that this includes an premises to undertake common obligation against “reasonable to secure areas steps in the foreseeable criminal acts of third that are to occur parties likely (Ann M. v. Shopping absence of such measures.” precautionary Plaza Pacific 666, 137, Center (1993) P.2d 674 863 Cal.Rptr.2d [25 207] Bowl, 114, (Ann M.); v. Centennial Inc. Taylor see also Cal.2d (Taylor), cited.) 416 P.2d and cases [52 793] We a related granted review address issue that has divided Courts In Mata v. Mata Appeal. Cal.App.4th (Mata), court, an order reversing granting summary appellate judgment, held that when a bar voluntarily guard its proprietor employs premises, a “duty has protecf’ “assumed’ its from criminal proprietor patrons (Id., becomes irrelevant.” assault “and therefore issue of case, added.) italics In the which concerns a bar at present similarly (or “bouncers”) which were guards court employed, appellate expressly Mata, disagreed with no owed and finding verdict for reversing jury a bar who was in a attack another plaintiff, patron injured patron and his companions.

As we shall we with the Court of explain, although agree Appeal’s Mata, criticism of the broad language Cal.App.4th quoted ante, we nonetheless with that court’s conclusion that the disagree proprietor in this case could not be held liable for the to its under properly injury patron the circumstances here. we conclude presented Accordingly, judg- ment rendered the Court of trial court’s Appeal, reversing judgment favor of be must reversed. plaintiff,

I This case arises out of a criminal that took in the lot assault place parking Turlock, (the defendant) of defendant Trax &Bar Grill bar or California. trial, The evidence adduced at to the viewed in the most favorable light Witkin, (see (4th 1997) Cal. Procedure ed. judgment Appeal, § 408-410, cited), and cases is summarized below. two variously On weekend the bar nights employed persons or “security guards,” referred to the trial as throughout “security people,” bar, in the bar’s “bouncers.”1 One was stationed on a stool outside guard Nichols, was stationed inside the bar. lot. The second Jason guard, parking strong The bar testified that the were manager guards large “good He job.” whom the . . would do manager “thought. good explained [men]” the words that he with the T-shirts wore guards they (bearing provided (i) them to back) “Trax or on the and instructed “Security” patrol Security” lot outside the to ensure that did not congregate bar parking persons there, (ii) check identifications in order beverages consume intoxicating (iii) entered that out count those who so underage patrons, occupancy keep (iv) any did not exceed 150 not intervene in persons, physically attack, to a altercation or but instead “911.” In telephone response specific the bar “had any counsel whether concerning responsi- question plaintiff’s lot,” customers in the safety manager replied, bility parking [its] a certain to see that to their car.” they got point, yeah, “[t]o The bar that the local had recommended mаnager explained police but he on conceded recross-examination no-physical-intervention policy, could take to 20 minutes to The manager explained police up respond. that one was to the bar’s own who were guards, purpose policy control, not trained in crowd from injury. that at times the bar’s acknowledged guards ignored

The bar manager interceded in between fights no-physical-intervention policy personally for a and that when the did so were not guards they disciplined patrons, Indeed, bar, at the Trax John White violation of former guard procedure. one month (who left at the bar approximately prior employment (on behalf issue), incident here at testified as an of plaintiff) expert at local and his own custom custom and bars guards generally, practice bar, and to the Trax was to treat the as a safety “top priority,” patrons (whether the bar or in an intervene in attacks inside actively physically White lot) Finally, rather than 911. telephone adjacent parking simply bar, at the Trax he advised testified that his terminating employment security busy nights. manager inadequate Wollery and his Dinette Douise Plaintiff Michael wife Wollery Delgado to 10:30 on a Saturday at the Trax bar 10:00 approximately arrived Delgado Plaintiff, inch tall and who stood six feet one in November 1998. night in the After had consumed two beers earlier evening. weighed pounds, 1 person provides term for a who testimony established that “bouncer” is the common Trial security in a bar or other similar establishment. services minutes, he bar, following and over the course of

entering Jacob Joseph time another one more beer. this During patron, consumed stared or four know), companions, and three (whom did not Joseph’s plaintiff occasions, back at thе group. and stared at on numerous plaintiff plaintiff or between and Joseph interaction plaintiff There was no verbal physical at that time. his companions uncomfortable as a result

Prior to had become midnight plaintiff inconsistent to leave. somewhat Although continued and decided staring that immediately the events jury concerning was testimony presented could have found from ensued leading injuries, jury plaintiff’s (the interior (1) wife Nichols evidence the following: plaintiff’s approached to be a fight”;2 concern that “there was going guard) expressed then observed the hostile stares between (2) plaintiff Nichols himself imminent;3 that a was fight and his and concluded Joseph companions circumstances, that, to ask (3) under the it would be best Nichols determined leave, and his wife to and Nichols made that request;4 plaintiff plaintiff bar, escort them to their and his wife thereafter left the but Nichols did not lot;5 (5) through car in the when and his wife to walk began parking plaintiff car, 40 feet lot toward their which was parking parked approximately door, from the bar who earlier had been outside no guard longer posted lot; (6) but 12 to 20 men in the “standing” was were present, parking gatherings; situation was to the bar’s such contrary policy dispersing into the lot and and his followed Joseph plaintiff parking companions him, accosted and the other in the lot with joined who were persons parking in the assault.6 Joseph 2 examination, however, plaintiff’s explicitly so testified. redirect wife denied Nichols On

having fight told Nichols that she feared would occur. 3 Nichols, security,” that he observed who described himself as the bar’s “head of testified (who staring plaintiff staring Joseph talking phone) on a cell back Joseph, Joseph the two but plaintiff. explained sрoken Nichols that no words were between that, “blatant[ly] upon these plaintiff. continued to stare” at Nichols also stated based observations, offing: “Usually what I anticipated fight past he that a was in the from the [of] bar, was, know, you fight.” going saw in that that meant there to be a 4 going him . . I’m to have to ask up [plaintiff Nichols testified that he “went told . and] Nichols, began to you According problem” “that’s no plaintiff responded, to leave.” measures to “remove the explained walk out of the bar. Nichols that he undertook these threat,” guy easier plaintiff and that he elected to remove rather than the others because “one people.” to move than four 5 Nichols, however, plaintiff asserted that he escorted Plaintiff and his wife so testified. began, attempted protect plaintiff parking upon plaintiff lot and that when the assault he testimony supported Nichols’s injuries process. and suffered to himself in the No other concerning respect, parties stipulated police reports and the extensive assertions in this the events do not mention Nichols’s name. 6 car, accompanied three or plaintiff Joseph, Nichols testified that as walked toward the bar, something the effect of followed outside and said four men from inside attack, it, after the or the course of the other Immediately perhaps during to The arrested guard seek assistance. security telephoned police police scene, at the and he was convicted of assault felony Joseph subsequently a of no contest. Plaintiff suffered a fractured and a skull subdural upon plea hematoma, was for and days, hospitalized subsequently experienced adverse as well as chronic headaches. сhanges personality Grill,

Plaintiff filed a Trax Bar suit and Southern personal injury against (the landlord), Pacific and wife Transportation Company Joseph; plaintiff’s sued the same for loss of consortium. At the outset of the trial parties suit, wife her the a dismissed dismissed landlord as plaintiff’s Thereafter, statements, defendant. following opening parties stipulated that had been convicted of a had filed for Joseph felony, bankruptcy and no longer was case. protection, party Trial continued the Trax bar on a against only, liability theory. premises *****7 3.11,* was instructed to BAJI No. jury pursuant concerning 3.13.1,8 BAJI negligence; No. concerning duty anticipate 8.23,9 conduct of a third and BAJI No. of care person; concerning “well, Nichols, similarly, according up?” responded point, what’s Plaintiff and at that “the guys [plaintiff],” “began prepare four ran toward who to defend himself and there was a fight.” very Joseph, Assyrian heritage, Nichols testified that thereafter called out soon who is Assyrian, immediately containing and that the area appeared 20 additional men from began dumpster parked plaintiff. cars and to assault Plaintiff testified that because he attackers, protect danger wished to his wife from he ran lot and parking from the out of street, by group. crossed the where he was followed five or six men from the Once there he by Joseph was beaten and at other with a or bat. wife person least one stick baseball Plaintiff’s taunted, “watch, group they testified that members of the restrained her and watch. And used now; language [y]our big some foul husband is not so is he?” [and said] 7 provided: helpful determining person That instruction “One test that is whether or not a not, negligent question person ordinary was is to ask and answer the whether or if a prudence knowlеdge, had been in the same situation and of the same possessed [he] [or] [she] anticipated might injured by would have foreseen or that someone have been or as a result of ‘yes,’ question action or inaction. If the answer to that and if the action or [his] [or] [her] avoided, reasonably negligence.” inaction could have been then not to avoid it would be 8 possibility That “When the of harm provided: instruction circumstances are such be, is, due person caused the criminal conduct of a third or in the exercise of care should foreseeable, negligence prevent it is to fail to use reasonable care to such criminal causing [injury] [damage].” act or 9 care provided: proprietor That instruction “The of business establishment owes they express implied to customers when come at the or premises proprietor’s business invitation, owned, by the premises property possessed The business include or controlled [f] []Q care care to discover proprietor. requires proprietor This exercise reasonable accidental, negligent intentionally persons occurring whether harmful acts of third are or are knows, likely premises. proprietor to occur on the business If a or should know that such acts occur, occurring likely proprietor give are or are has the further to either harm, warning adequate customer a to enable the visitor to avoid the or otherwise to harm, against warning adequate apparent not be when it is the visitor such A will ffl jury a vote nine to three the a business.10 By owed proprietor was (i) defendant negligent; verdict finding returned a special injuries; factor (ii) causing plaintiff’s substantial negligence defendant’s awarded economic (iii) at fault. The jury defendant was 100 percent $81,391.61 $20,000 more than the amount damages (exactly aas by plaintiff were incurred medical that the parties expenses stipulated noneco attack) nothing inflicted in the result of the injuries physical was is, (that suffering). Judgment for nothing nomic damages pain trial, that it owed asserting moved for a new entered Defendant accordingly. assault, and that there was insufficient no to duty plaintiff protect the trial court denied motion. evidence of breach and causation. The no of that because there was evidence contending Defendant appealed, in the the vicinity, criminal either on its or premises assaults prior law, a a and that as assault unforeseeable as matter of was upon plaintiff not to a and thus could security guard it owed no consequence duty provide to this by be held Plaintiff injuries.* responded argument liable plaintiff’s that him a of care “because the asserting duty special defendant owed and that in event by hiring security guards,” any created the relationship once wife duty defendant had to protect plaintiff’s provided defendant with notice of the to its occurrence.” prior “potential problem the Division

While the First District Court of Appeal, appeal pending, Mata, Four, 1121. that case issued its In opinion Cal.App.4th post, (further 247-248), guard, described at a bar employed pp. proprietor customer, break told leave being by and while the was on a after to guard the of the the walked outside and fired front door proprietor, gunshots through bar, at (105 one others. killing person wounding Cal.App.4th the on 1125-1127.) The survivors sued a premises pp. patron’s proprietor in Mata concluded The should liability Court of suit theory. Appeal to be it will effeсtive expected, because of a lack of time the character the conduct not be or give any duty care is protection, proprietor perform to A to such failure [f] negligence. persons not have a to control the misconduct of third proprietor The does opportunity which the has or no or means proprietor anticipate, no reason reasonable owned, by the possessed nor prevent, property or which occurs on neither controlled proprietor.” 10 have requested by The defendant that would trial court refused a broad instruction is not jury party informed that criminal of a third foreseeable conduct “[violent on the been incidents similar violent crime restaurant owner unless there [have] premises.” 11 addition, allegation support In that the evidence was insufficient defendant renewed its causation, court asserted that the trial jury’s findings concerning negligence further instruction, at refusing special quoted proposed committed instructional error its damages. raising concerning proper measure of cross-appealed, footnote 10. Plaintiff issues not be resolved favor of the defendant judgment, proprietor summary but (Id., instead should to trial. at proceed reaching In determination, the Court of reasoned that Appeal because proprietor , . . and that when “employed security guard . was on guard duty” occurred, criminal assault murder been already had protect “[t]he (Id., assumed and therefore issue becomes foreseeability irrelevant.” 1128; id., see also Mata, below, The Court of Appeal responding Cal.App.4th disagreed with because a bar expressly proposition merely measures, propriеtor other similar it employs guards implements thereby “assumes” a its while are on patrons they premises. Court of below further disagreed with Mata’s conclusion that such an Appeal Instead, assumed renders the issue “irrelevant.” Court of held that “genuine foreseeability” “particular involved—here, men, conduct” an attack to five followed up immediately an attack 12 to by 20 additional in to by required men—was order impose test, legal of care defendant. that Court duty upon to of Proceeding apply concluded that there Appeal was evidence that although establishing lot, fights had in the Trax bar there was no evidence of erupted parking any previous “coordinated attack” “a of gang assailants in large group lying wait in the lot.” found no of parking Having evidence any prior criminal incident that would have on defendant notice that such an put occurrence be Court of reasonably might concluded anticipated, Appeal that the attack was unforeseeable and that owed upon plaintiff defendant no to duty guards employ protect plaintiff. (i)

The Court of Nichols’s that Appeal’s opinion acknowledged testimony husband, told wife Nichols of an plaintiff’s involving her impending fight (ii) testimony effect those who assisted in the Joseph’s ultimately been, words, attack had in the lower court’s “visible in the lot as loitering parking acknowl- group, contrary [defendant’s] however, edged of such The Court of policy dispersing gatherings.” Appeal, dismissed this evidence as “insufficient establish a on the of duty part or intervene in” the assault prevent upon plaintiff. Accordingly, [defendant] the Court of reversed the judgment favor plaintiff.

We granted review to address and resolve the conflict in these decisions thе First District Fifth District Courts of Appeal.

II general a ‘defendant owes a care to Although principle, “[a]s conduct, all are endangered who his with to all persons foreseeably respect

235 ” (Tarasoff Regents v. dangerous’ unreasonably risks which make conduct 14, 425, 17 434—435 (1976) Cal.Rptr. Cal.3d University [131 of California Code, 1714; v. Lugtu Civ. (Tarasoff); § 551 P.2d see generally 334] California 528, 703, 28 P.3d (2001) Cal.Rptr.2d Patrol 26 Cal.4th 716 Highway [110 that, as a 249], general it also established cited), and authorities is well matter, third others from the conduct of is no to act protect there 425, 435; Cal.3d see also v. State supra, 17 (Tarasoff, parties. Paz of California 703, 550, (Paz); P.2d 975] [93 (1983) 34 Cal.3d Williams v. State of California Torts, 314.)12 {Williams); post, Rest.2d But as explained, 664 P.2d § rule, one courts recognized general no-duty-to-protect have exceptions case.13 of which—the doctrine—is relationship” ‍‌​‌‌‌‌‌​‌‌‌​‌‌​‌‌​‌‌​‌​‌​‌‌‌​‌​‌‌‌​‌‌‌‌‌‌‌‌​​‌‌‌‍dispositive “special A defendant an affirmative another from may owe third other conduct of if he or she with the relationship” has parties “special Torts, Witkin, 1988) ed. (See (9th of Cal. Law Summary person. 220-233; 858-866, Dobbs, The Law of Torts §§ §§ (Dobbs Torts).) 322-332 Courts have found such a special relationship cases business such as involving shop between relationship proprietors bars, centers, restaurants, tenants, invitees. and their ping patrons, M., in Ann we as “well established” Accordingly, recognized proposition maintenance, that a is owed to tenants “general duty which proprietor’s steps . . . to take reasonable to secure patrons, include[s] acts are against parties common areas foreseeable (Ann in the measures.” likely to occur absence such precautionary 666, 674, added; Fried Kentucky 6 Cal.4th italics see also Chicken of Cal., 819, 814, (1997) & Inc. v. Court 14 Cal.4th 823-824 Superior [59 756, Chicken) Fried who (Kentucky 927 P2d [proprietor 1260] believe, has of reason to from observation or conduct experience, 12 Tarasoff, As explained we rale derives from the common law’s distinction “[t]his nonfeasance, (See liability to latter. impose between misfeasance its reluctance the Kime, 886, 887.) Duty The the Another (1934) & to Control Conduct of Harper 43 Yale L.J. Morally setting questionable, any its ‘the of of rule owes survival to difficulties standards men, making any possible unselfish to fellow and of workable cover situations service rule to 1971) 56, 341.)” (4th fifty might (Prosser, . . ed. people p. where fail to rescue . .’ Torts § 435, (Tarasoff, supra, 17 Cal.3d fn. at 13 matter, briefing upon potential In our we the course of consideration solicited no-duty-to-protect to upon exception relevance and effect this case of a second rule—the negligent undertaking so-called conclude the issue before us can be doctrine. Because we alone, analyze apply do not or special relationship resolved under the doctrine we need not and Mata, supra, undertaking explain distinguish negligent except necessary doctrine as to which, earlier, below 105 noted the Court Cal.App.4th 1121—the decision with (See IV.) post, pt. disagreed. another invitee a to take to endangers an has reasonable duty steps protect invitee]; Peterson v. Francisco Community San Dist. 36 Cal.3d College 799, 842, 685 P.2d exists Cal.Rptr. special relationship [205 1193] [a “a between land and members of the who possessor enter in public invitation”]; Taylor, landowner’s Cal.2d response supra, 121 [a business a has to take affirmative action to control the proprietor “duty wrongful acts of third which threaten invitees persons where [proprietor] reasonable to has cause such acts and the anticiрate probability injury therefrom”; 241]; Torts, resulting further described Rest.2d post, 344.)14 §

A. duty to special-relationship-based provide security

guards In a we series of cases have the narrow addressed when the question of a or scope proprietor’s special-relationship-based to invitees duty patrons can be found include a properly provide security guards. Isaacs

In v. Cal.3d Huntington Memorial Hospital (Isaacs), (there, 695 P.2d we that a a suggested proprietor have a might and invitees hospital) provide guards protect patrons case, (in that a who at the physician practiced from attacks hospital) third so as such was by parties premises, long an attack (Id., foreseeable “in of all the circumstances.” light This formulation left have open possibility proprietor might conduct, guards to even in the absence provide against protect party similar conduct need putting notice of the proprietor protect such against conduct. Ann

In we retreated expressly open- ended formulation set forth in Ann M. the an Isaacs. In employee plaintiff, center, who worked at a located business in a shopping raped during business hours who entered her person In place employment. 14 tenants, invitees, In relationship proprietors patrons, addition to the between and their special relationships triggering injury another from foreseeable caused contexts, party (i) including third have been in other common found those of carriers and (ii) (iii) and passengers, innkeepers guests, their and mental health and professionals their Witkin, Law, Torts, 859, supra, Summary (See patients. generally p. seq.; 6 of Cal. 223 et § al., (The fj[ 2004) Injury Group Hahavan et Cal. Guide: Practice Personal Rutter 2:856 to 2:875.4; 322-332; Torts, 317, Torts, 314A.) supra, 2 Dobbs Rest.2d We addressed the §§ § 425, Tarasoff, special wе relationship latter in 17 Cal.3d in which concluded that in had patient therapist the circumstances of that case—in which a informed his mental health of plan person—a the to that patient’s special relationship imposed kill another was established (Id., therapist duty steps designed p. the a take the victim. at to to intended seq.) et center, the the plaintiff defendant against shopping

asserting liability premises a reasonably areas in to maintain common duty that the defendant’s alleged the in those areas. On guards obligation safe condition included an to provide did of the duty concluded that the scope proprietor’s facts there we presented, that the trial court such and held guards, not an to obligation provide include for the defendant. had granted summary judgment properly Ann M. in several basic by legal our noting We discussion began that the existence We observed relating duty. to the of question propositions M., (Ann a is a of law for the court determine legal of duty question 674), in the determining at is a “crucial factor” foreseeability 6 Cal.4th that p. (id., “[fjoreseeabil 676),15 that existence and of a at and legal duty scope p. the or of a is a duty, when determine existence ity, analyzed scope question M., (Ann 678). of law be decided the court” at We also acknowledged p. (because the “well established” rule that commercial proprietors they gener tenants, invitees) are stand in a with their ally special relationship patrons, and in a safe to “maintain land in their control required possession “reasonable condition” and includes general duty taking steps third that are secure common areas foreseeable criminal acts of parties against M., (Ann to occur in the absence of measures.” likely such precautionary 674, cited.) and cases p. in foreseeability the relation to

Explicating approach analysis proper for and business invitees proprietor’s duty provide protection patrons crime, in Ann M.: third we after our in party stated and decision “[B]efore Isaacs, determined the recognized duty we have of the is in part scope the burden of to be balancing foreseeability against duty harm ‘ (Isaacs, supra, 38 Cal.3d at cases where the burden imposed. “[I]n be degree may future harm is of preventing great, high 15 that, factors courts pointed foreseeability, We also out in M. in addition to other “that Ann determining consider case *. . . the scope particular the existence of a are: degree certainty injury, suffered the closeness of the connection between suffered, injury to the defendant’s conduct the moral blame attached defendant’s conduct, harm, preventing fiiture extent of burden to defendant policy resulting liability consequences with community imposing to exercise care ” breach, cost, (Ann availability, prevalence insurance for the risk involved.’ 5, 108, quoting v. Christian 69 Cal.2d [70 Cal.4th fn. Rowland 425, 434, 561].) Although, Tarasoff, supra, as 17 Cal.3d 443 P.2d we noted in establishing we foreseeability,” important most these considerations “[t]he Arman, 1181, 1190, explained in Sharon P. v. Ltd. footnote (Sharon P.), scope may against expanding other dictate 989 P.2d factors “[t]hese crime, against party even there is protecting landowner’s include where foreseeability.” sufficient evidence of hand, other required. On the in cases there are where strong [Citation.] policy harm, reasons for the harm can be preventing prevented by simple means, a lesser of be degree foreseeаbility may required.” [Citation.]’ [Cita- Or, as one court has appellate tion.] in such accurately explained, duty circumstances is a determined of of the balancing ‘foreseeability’ criminal ‘burdensomeness, against acts vagueness, efficacy’ proposed security (Gomez [(1983)] [622,] measures. v. Ticor Cal.App.3d M., 600].)” (Ann supra, 6 Cal.4th at pp.

Turning claim that plaintiff’s specific proprietor’s duty secure against foreseeable criminal acts of premises included, in parties the circumstances there a presented, legal obligation to we in Ann guards, stated M. that “there provide be circum although may stances where the of be hiring security guards will required a satisfy care, ever, landowner’s such action will if be found rarely, to be a ‘minimal burden.’ The monetary costs of is not security guards insignificant. Moreover, the obligation provide to deter patrols adequate crime, conduct is not well defined. ‘No one knows commit really why people hence no one knows what is really deterrence in “adequate” any given situation.’ the social costs of Finally, on landown imposing duty [Citation.] ers to hire forces are also not private police For insignificant. these [Citation.] reasons, we conclude that high degree in order required a landlord’s scope care includes the hiring find of requisite security We guards. further conclude that the degree of foreseeabil ever, if ity rarely, can be in the absence of similar proven incidents of prior crime violent on the landowner’s premises.[16]To hold otherwise would be to effect, and, an unfair burden impose landlords in would force upon landlords to become the insurers of to well-established public safety, contrary policy M., 666, 678-679, this state. (Ann supra, 6 Cal.4th italics [Citations].” addеd.)17

Thereafter, P., in Sharon we further elaborated P, set forth Ann M. In principles Sharon plaintiff was 16 At point, we observed in footnote that evidence than other similar crimes occurring might on the proprietor’s premises be adequate foreseeability. to establish We stated: possible “It is that some proximity other circumstances such as immediate to a substantially similar business experienced establishment that has premises provide violent crime its could requisite degree foreseeability. evidence, presented Because Ann M. no such we need M., (Ann further possibility.” 7.) not consider this 6 Cal.4th at fn. 17 At the close of our in Ann M. opinion we observed in footnote that the plaintiff had that, store, no evidence parking garage all-night “offered to show like a or an convenience ‘ store retail located in a center shopping especial temptation creates “an and opportunity for ’ Therefore, criminal misconduct.” we need not consider this case whether [Citations.] some that, types property inherently dangerous commercial are so even in the absence of prior incidents, security guards providing scope will fall of a within the landowner’s (Ann care.” fn. 6 Cal.4th at garage a dimly lighted her car in after and shortly parting raped

assaulted had there Although she was employed. in which the building located beneath bank, crimes within other and assorted in a nearby robberies been recent no there was garage, underground parting the surrounding area 50-block the to the assault upon crimes similar of the occurrence of evidence in the indeed, of crimes any no evidence the garage—and in or near parting the sued After the plaintiff 10 years. the during previous garage parting the trial court granted garage, parting owners operators P., 1185-1187.) at (Sharon pp. summary judgment. motion for defendants’ that on the basis reversed in a divided opinion, of The Court Appeal, and, “inherently dangerous” are structures underground commercial parking in or near of assaults similar incidents the absence of prior notwithstanding to determine whether be allowed should jury garage, parting an obligation included security reasonable defendant’s duty provide 1187-1188.)18 (Id., at other similar measures. pp. guards provide the Court reversed ultimately in Sharon P. We review granted crimes the evidence prior in that case. We found decision Appeal’s to “establish the plaintiff similar to the violent assault insufficiently ... an . . . that would justify imposition high degree foreseeability their security guards “to on the defendants’ obligation” part provide id., P., 1191; 1195.) We also at (Sharon 21 Cal.4th at see p. garage.” to sound public policy, and contrary also as rejected, legally unsupported are, facilities as conclusion that underground parting Court Appeal’s who own law, and hence that those “inherently dangerous,” matter of 1191-1195.) Finally, (Id., at guards. pp. or control them must provide had an obliga that the defendants addressed the contention we plaintiff’s measures, other, security burdensome tion to undertake less assertedly clean, brightly lighted was ensuring garage such as cameras, and requiring installed security activating monitoring previously at (Id., through garage. to walk periodically existing personnel measures, reality, whether such other We questioned pp. of guards than the hiring be less burdensome would significantly test: (id., 1196-1197), heightened and applied a reason indications of incidents or other similar any prior “[A]bsent location,[19] assaults in of violent criminal foreseeable risk ably 18 antе, 17, approach such an possibility we had mentioned As observed at footnote M., 680, 8. Ann page 6 Cal.4th at footnote 19 that, the absence of acknowledge even in employed to disjunctive phrase premises, other circumstances—for crimes on the defendant’s evidence of substantially similar nearby occurring premises crime example, similar violent M., at fn. (Ann supra, 6 Cal.4th quoted fn. establishment business foreseeability. heightened degree of 16)—might provide requisite we cannot conclude defendants were to secure the area required against such P., (Sharon 1199.)20 crime.” at p.

In P., summary, in Ann explained and Sharon 1181, supra, when only “heightened” of third foreseeability party on the activity premises exists—shown incidents or prior other a indications of foreseeable risk of violent reasonably criminal assaults in that location—does of a scope business proprietor’s special- include duty an to relationship-based obligation provide guards protect M., (Ann 7; P., safety patrons. 6 Cal.4th at supra, 679 & fn. Sharon p. supra, 1190-1191, 21 Cal.4th at 1197-1198.)21 pp.

B. Other duties special-relationship-based described, ante, Even when such as proprietors those have no duty under M. Ann and Sharon P. to a provide security or undertake other guard measures, similarly burdensome preventative is not proprietor necessarily insulated from under liability doctrine. A special relationship proprietor that has no under Ann duty M. and Sharon P. to hire a or to security guard 20 P., recently Most we reviewed Ann and Sharon in Wiener v. Southcoast Childcare Centers, (2004) 1138, 615, Inc. 32 (Wiener). Cal.4th 1146-1148 Cal.Rptr.3d 88 P.3d [12 517] plaintiffs in that (a landlord) case asserted that the defendants childcare center and its had a provide stronger a barrier that would have protected young intentionally children who were killed while playground on a when a party though third drоve four-foot-high his car a chain separating playground link fence nearby from a granted street. After the trial court defendants, summary judgment (Id., 1145.) for the the appellate court reversed. On review, we concluded properly granted that the trial court summary judgment. We found no evidence of prior similar incidents or other indications of a foreseeable risk of violent criminal assaults in that location. We determined that party the third criminal act in the bizarre, outrageous case before us was “so that it could not have been anticipated under (Wiener, any 1150), circumstances” 32 Cal.4th at and hence the defendants had no duty to provide stronger a fence protect against ultimately crime that occurred. In the decision, process distinguished we an appellate court Flags Robison v. Six Theme Parks Inc. (1998) 1294, Cal.App.4th 64 (finding park an amusement proprietor [75 lot, negligent liable design of a parking resulting injuries triggered by in park patron’s a negligent driving), and commented that the “acknowledged court in Robison had that our cases analyze party differently criminal acts ordinary negligence, require apply us to heightened sense of before we can hold defendant liable for the criminal acts (Wiener, parties.” of third 32 Cal.4th at prior We concluded: “Without acts, any similar criminal or even indication of any criminal acts or intrusions of type in businesses, the surrounding defendants here could not have expected been to create a fortress protect (Id., the children . . . .” at p. 21 In such proprietor legally obligated guards situations—in which a provide safety patrons—the proprietor might vicariously of its ensuing be held liable for the Witkin, (see Law, Torts, 997, negligence guard of its generally Summary of Cal. § p. 388 et or seq.), negligence selecting, training, for its own supervising, retaining or (cf. guard Far Corp. WestFinancial v. D & S Co. Cal.Rptr. 46 Cal.3d 812 [251 399]). 760 P.2d still owes a duty

undertake other burdensome measures similarly preventative due care to a or invitee virtue of the special relationship, patron or there are from the failure to security guard circumstances (apart provide measures) undertake other that may give burdensome similarly preventative rise to based relationship. liability proprietor’s special

For it has been that restaurant example, long recognized proprietors mea have to undertake special-relationship-based relatively simple sures such as “assistance their customers who become ill or providing [to] (Breaux v. need medical attention and that are if fail to act.” they they liable Gino's, Inc. 260]; see Cal.App.3d Torts, 314A.) Rest.2d also a restaurant bar generally Similarly, proprietor § Torts, and, (see 344) has warn of known Rest.2d patrons dangers § insufficient, circumstances which a alone is has a to take warning other reasonable and measures to from or invitees appropriate protect patrons Chicken, (Kentucky Fried imminent or criminal conduct. 14 “ongoing” 814, 823.) Cal.4th Such measures include the or 911 may telephoning police 1119, Johnston v. Fontana for assistance (e.g., 1997) 610 So.2d (La.Ct.App. 1121-1122 of bar or an [duty or invitees from proprietor]), protecting patrons imminent and known in a lot an escort lurking by peril parking providing by (Taylor, existing to a car in that lot. security personnel 65 parking 114, 8.23, Cal.2d 121-125 of bar see BAJI No. [duty proprietor]; generally ante, 9, instructed.) at fn. under which the quoted in this case was jury Moreover, case, as relevant to the California decisions especially present long doctrinе, have under the recognized, that a who special relationship proprietor serves drinks to for the intoxicating customers must consumption premises reasonable care to his from at the hands of protect patrons injury “exercis[e] v. Smith (1981) fellow guests” 122 518 {Saatzer Cal.App.3d [176 “ {Saatzer)), and that such a . . Cal.Rptr. ‘arises . when one or more of the (1) circumstances A following exists: tavern allowed keeper person on the (2) who has a known the tavern premises fighting; propensity allowed a to keeper remain on the whose conduct had person premises become and aggressive to such a the tavern knew obstreperous degree keeper others; to ought (3) have known he the tavern had been endangered keeper warned of an from and failed to take suitable danger obstreperous patron others; measures for the (4) the tavern failed to protection stop keeper started; fight (5) as soon as after it the tavern failed possible to keeper a staff to the tavern provide adequate police premises[22] keeper ” {Saatzer, tolerated conditions disorderly Cal.App.3d [citations].’ 518; see also Slawinski v. Mocettini at Cal.App.2d 613], cited.) and authorities 22 to, aspect may overlap, This of the special relationship proprietors of bar relates (discussed, II.A) general pt. proprietors provide guards the more of business to to safety patrons under limited circumstances. are In Cal.2d illustrates how these applied. Taylor,supra, principles a female twice was offensively that case the bar plaintiff, patron, proposi- rebuffed the male tioned a male by patron. Although plaintiff patron’s advances, (Id., fear she testified she felt she had no reason to him. bouncer, The bar who observed and overheard these encounters. employed Later, to when the bar was the bouncer closing, leave plaintiff prepared “ ” (Ibid.) her not outside because that is out there.’ goofball warned to ‘go for home so The that it was late and that she needed to depart plaintiff replied later The bouncer then walked the bar she could work. go plaintiff at her door but did not escort her to her car in the lot. parking Upon arriving lot, car in attacked the male bar severely plaintiff patron bar, failing sued the it was injured. claiming negligent plaintiff her with from a known of imminent danger provide adequate protection evidence, After of the the trial court issued assault. presentation reversed, from the evidence directed verdict for bar. This court concluding that the defendant’s bouncer “must have been danger apprised potential ‘the that the bouncer’s did not warning assault plaintiff goofball’ she faced and she had danger of the imminent adequately apprise plaintiff so; the bar when she elected to do and that the bouncer right depart “could have her from the he easily danger apparently anticipated by protected (Id., her car.” simply accompanying [the] held, we it was a for the whether the bouncer’s Accordingly, question jury “mere admonition not to enter the lot because ‘that out goofball parking ” there’ satisfied the defendant’s special-relationship-based duty plain- (Id., 124.) tiff. at p.

III We We now to the case before us the discussed above. apply principles below, conclude, owed a shall to the Court of that defendant contrary Appeal ‍‌​‌‌‌‌‌​‌‌‌​‌‌​‌‌​‌‌​‌​‌​‌‌‌​‌​‌‌‌​‌‌‌‌‌‌‌‌​​‌‌‌‍doctrine. Prior to doing рlaintiff pursuant special relationship so, however, defendant. we first address a advocated by preliminary point when a always

A. Is “heightenedforeseeability” required seeks to a plaintiff impose special-relationship-based a

duty upon proprietor? behalf, Defendant, curiae on its asserts that a an amicus by supported its as defined Ann M. and heightened foreseeability by progeny showing when a seeks to always impose special-relationship-based required conduct of a third In a related to the criminal party. liability upon proprietor v. defendant and amicus curiae Hassoon Shamieh rely support, upon (Hassoon). Cal.App.4th customer, In Hassoon was inside a store at plaintiff, grocery night when he and the store’s noticed a man—known to be a employee drug beaten on the dealer—being sidewalk of fellow dealers. The by drug group store’s rescued the victim and him inside while the employee brought store, attackers remained outside. Soon thereafter shots were fired into the customer, injuring who sued the and the em- subsequently proprietors ployee, claiming acted in proprietors’ rescuing employee negligently the victim and thereby customer to fired exposing ensuing gunshots (Hassoon, from outside the store. at supra, 89 Cal.App.4th the facts in did Clearly, Hassoon not implicate proprietor’s possible obligation to or take other provide guards burdensome action similarly crime, future but designed prevent instead concerned only proprietor’s asserted a crime victim in the face of rescuing unfolding refrain on or near the activity and from premises thereby putting Nevertheless, customer in in danger. affirming summary favor of judgment the defendants on three the Court of separate grounds,23 Hassoon Appeal stated as its broadly first that “the ground absence similar proof prior incidents at defendants’ of business is fatal to a place successful damages claim in tort” and “means the (Hassoon, was not foreseeable.” shooting addition, 1195.) Cal.App.4th In Court of asserted that “the requirement ‘prior incidents’ is ... a factual precondition (Id., premises liability.” at p.

This of the decision in aspect Hassoon—and the similarly broad position advanced behalf, defendant and amicus curiae on its as well as dissenting opinions this case—is inconsistent with our facially decisions in M., Ann which, and its all when progeny, articulating doctrine, applying heightened foreseeability reaffirm the expressly sliding-scale balancing formula articulated to and in our decision in Isaacs, 112, 125, that, supra, 38 Cal.3d under which we have as a recognized matter, general of a burden imposition high heightened foreseeability, requires but a minimal burden be may imposed of a lesser showing degree (See foreseeability. Ann quoting supra, 6 Cal.4th at 678-679, Isaacs, which in turn pp. followed both Cal.3d quoted supra, 38 112, 125, Ticor, 622, 631; P., v. 145 supra, Sharon Cal.App.3d Gomez Wiener, supra, [same]; 21 Cal.4th at 1195 p. 32 Cal.4th at supra, [same; ante, 20]; 1146-1147 described pp. at fn. see also Kentucky Fried Chicken, 14 supra, 819.)24 Cal.4th 23In ffirming granting summary a the court in Hassoon judgment, clearly reached the Christian, ante, correct result supra, its facts: Under Rowland v. (quoted 69 Cal.2d 108 at 15),

fn. the proprietors had no rescuing person being refrain from beaten in their (Hassoon, supra, presence. Cal.App.4th pp. 89 at 24 Restating sliding-scale balancing integrating holdings formulation and of our most cases, guiding recent we observe that the principles are these: In circumstances which Shamieh, extent Hassoon v. supra, Cal.Apр.4th to the

Accordingly, 1191, 1195, is foreseeability required that a showing heightened suggests the burden sought of the extent of cases—regardless in all liability premises is disapproved. the defendant—that of Hassoon aspect to be imposed analysis B. Special-relationship doctrine in the case relationship Turning application special defendant, us, in a a bar stood special before it is proprietor, undisputed invitee, and hence owed a duty its with plaintiff, patron relationship areas foreseeable against to secure common undertake “reasonable steps of such to occur in absence likely criminal acts of third parties [were] M., 674) and to take such (Ann 6 Cal.4th measures” precautionary circumstances to protect reasonable under the action as is “appropriate id., Chicken, 814, 823; at see also Fried (Kentucky patrons.” 819; “to take Cal.2d has Taylor, supra, [proprietor which threaten acts of third wrongful persons affirmative action to control Saatzer, cited; cases Cal.App.3d invitees”] an claim rests upon To the extent special-relationship-based plaintiff’s or or guards defendant was legally provide guard assertion that required measures, must consider burdensome we initially to undertake any similarly M. and P. In this to do so under Ann Sharon whether defendant was obligated course, foresee- to demonstrate heightened was required respect, (or other indications of similar criminal incidents in the form ability criminal in the bar or its foreseeable risk of violent assaults reasonably 19). at fn. lot—see parking (as great onerous criminal conduct is or preventing party future harm caused

burden guards or legal duty provide had a in Ann asserts the defendant plaintiff, when a suсh as Wiener, measures, as in Sharon P. or plaintiff, or as when a such equally undertake onerous security bright lighting, activate and monitor legal duty provide asserts the defendant had cameras, stronger fencing), existing provide or “walk-throughs” by personnel, provide periodic of a incidents or other indications heightened foreseeability-—-shown by prior similar required. By be in that location—will risk of violent criminal assaults foreseeable contrast, merely by imposing prevented simple can be means in cases in which harm burdens, heightened foresee- opposed as only “regular” reasonable minimal ability required. 255-256), dissenting (post, suggestion opinion Kennard’s Contrary to the Justice formulation; indeed, noted, ante, general in this nothing there is new or “different” at least two prior opinions spanning set forth in numerous approach repeatedly has been Wiener, supra, decades, unanimously—reaffirmed only year last recently—and most was pages 1146-1147. Cal.4th In whether made we such considering plaintiff showing, reject that in suggestion Court below order to establish Appeal heightened under Ann to was evidence not plaintiff required produce assaults, “a only similar but of coordinated attack on prior gang an individual is satisfied patron.” Heightened foreseeability showing similar criminal incidents (or other indications of a foresee prior reasonably location) able risk of violent criminal assaults in that and does not require nearly identical criminal incidents. v. Atlantic Claxton showing (See prior Co. Cal.App.4th [plain Richfield tiff crime victim of a violent and motivated racially committed at a gas station established heightened foreseeability by demonstrating pre crimes, mises had been the scene of numerous recent violent nonе although of those crime].) crimes was motivated prior racially the record to a

Although refers few altercations between we prior patrons, with the agree conclusion of the Court of below that plaintiff insufficient produced evidence of heightened foreseeability in the form of prior incidents or other indications of foreseeable risk of a violent criminal assault on defendant’s that would have premises imposed defendant an obligation provide any guard, additional guards, protect against assaults. But the absence of party foreseeabil- heightened ity this case merely that defendant signifies owed no special-relationship- based guards or undertake other provide burdensome similarly measures; that defendant owed no other preventative it does not signify duty to such as a special-relationship-based plaintiff, respond reasonable, events unfolding in its presence undertaking relatively simple, Indeed, minimally burdensome measures. the record establishes clearly the existence of such a minimally burdensome here. earlier,

As noted the trial record contains evidence that defendant’s em- Nichols, conclude, was ployee guard, aware of facts that led him to least a few minutes (and occurrence of the assault prior bar), plaintiff’s from that a departure to occur between fight likely and his three or four Joseph absent companions some interven- plaintiff, tion on Nichols’s The record part. also establishes that Nichols formed the that in order to opinion avoid an altercation it was necessary separate from plaintiff his Joseph group by removing bar while inside, simultaneously leaving and his and that in order to Joseph group put into action Nichols plan and directed him to approached plaintiff depart from the bar. Christian, (Rowland considered the Rowland factors v. supra,

Having 108, 113, circumstances, Cal.2d 15) at fn. to these quoted they apply conclude, first, we that under the circumstances it was foreseeable that an and his from plaintiff. of Joseph group assault would occur absent separation that defend- a determination Rowland factors similarly support The remaining events unfolding to duty respond ant had a special-relationship-based reasonable, burdensome minimally steps relatively by taking simple, and, specifi- imminent that Nichols danger perceived, order to address the that he had determined was to the separation in order cally, accomplish Indeed, general conceded this essentially point defense counsel necessary. the words “Cer- with oral before this argument court—responding during whether, of the circumstances then in light to a tainly. Certainly” question Nichols, on the of defendant.25 duty” there was “some minimal part known to included, have for example, burdensome measures may Such minimally between Joseph’s to maintain the separation Nichols attempting an called for in order to avoid that had determined was Nichols group assault, and his companions his attention to turning Joseph imminent direction, (who, at Nichols’s following plaintiff order to dissuade them from And, threat of a bar).26 continuing in the face of the from the departing his to dissuade Joseph if Nichols were unable five-on-one altercation 25 argument: following exchange The occurred at oral recall, [below], flatly your client I said that Werdegar: “Now the Court of Justice duty.” had no Defense counsel: “Correct.” duty the law allow for а to behave Werdegar: “May you I ask .. . doesn’t Justice were, unfold, including ... about what those events and we’ve had discussion as events duty reasonably, leave—is there not a to behave telling member of the staff the victim to foreseeability might be—but to do and whatever the however that would be defined something?” P., “Sure, you . . . can’t have your I think honor said in Sharon counsel: and as Defense test, . . . .” be some reasonable similar incident . . . there has to strict I’m talking anything previously, that had occurred Werdegar: I’m not about Justice “[N]ow time.” talking happening about what was at this “Right.” Defense counsel: tension, group, saw there was a a member Werdegar: “There was Justice staff duty within that there be some minimal sufficiently tell the victim to leave .... [WJouldn’t to context, nothing happened ever in this establishment had [even] before?” if I, I, again us to whether or not “Certainly. Certainly. But which leads counsel: Defense (Italics gentleman from . . . what he suffered.” protecting duty that. . . would extend added.) 26 that, separation an imminent assault absent light of the clear We stress Joseph attempt was to to dissuade plaintiff, defendant’s Joseph group and his from dissenting Contrary implications in Justice Kennard’s following group plaintiff. his from or, separation, guarantee had a suggest that defendant opinion, we do not matter, any resulting injury plaintiff. attack and prevent not parking in the lot would group upon plaintiff attack whether the ultimate question following companions from successfully Joseph and his had Nichols dissuaded have occurred findings jury’s implied support sufficiency of the evidence plaintiff implicates the influence, to, analysis our relevant and do not that are not and causation—issues breach the circumstances. of care under of whether defendant owed outside, defendant also

companions following plaintiff have might confirmed that the outside post guard was his in the lot and was parking available, as maintain the necessary, desired between help separation Taylor, supra, (See his 65 Cal.2d plaintiff Joseph companions. conduct]; 123-125 of bar [duty to to imminent criminal proprietor respond Chicken, Fried Kentucky supra, has proprietor [restaurant a to to conduct duty respond “such ongoing by taking action as is appropriate Saatzer, reasonable under the circumstances to protect patrons”]; “ 512, 518 bar Cal.App.3d to . proprietor’s duty ‘arises . . protect patrons [a when ... the tavern had been warned of keeper danger from an obstreperous and failed to take suitable patron ”].)27 measures for the of others’ protection

IV As noted at the outset of this we review in matter opinion, granted in largely light of the conflict between the Court of in this Appeal opinion Mata, case and the earlier Court of in opinion Cal.App.4th 1121. cases, To avoid similar conflict and in confusion future we believe it is address the Mata decision and to we, this time to appropriate why explain like the Court of of Mata find some of the Appeal, language analysis be overbroad and potentially misleading. 27 conclusion, reaching contrary In a dissenting Justice Kennard’s opinion asserts that “the existence and scope duty of a protect against business owner’s a threat of future criminal otherwise, activity, imminent or depends the on the sort criminal conduct actually that occurred. ... As I explained, have the vicious group attack that occurred outside the reasonably (Dis. 256-257, restaurant was not opn., post, аdded.) foreseeable.” at pp. italics It is well established that scope the of a duty defendant’s in this context premised upon is danger the reasonably the defendant anticipate, knows or should and that the defendant’s duty simply is to take steps light reasonable logic, those circumstances. aAs matter of it is difficult to understand how the scope existence or proprietor’s duty properly could depend occurred,” upon the nature of the criminal actually danger conduct “that rather than the of which the defendant was or should have been aware. case, In this the appears acknowledge dissent that there is support sufficient evidence to determination employee that defendant’s reasonably Nichols foresaw a four- or five-on-one involving hand, assault Joseph and his three companions, or four on the one plaintiff, on reasons, however, the apparently other. The dissent that because defendant did not and is, reasonably could “actually not foresee what occurred”—that that Joseph compan- and his gain large ions would number of parking duty reinforcements in the lot—defendant had no even to take steps necessary the attempt to maintain separation that Nichols had determined was called for to avoid the more group actually limited attack that Nichols anticipated. But the circumstance precise gang size of the actual attack that occurred may not have been foreseeable does not absolve defendant of the to take indeed, steps (and, did) reasonable based upon danger the nature of the employee that its could foresee. noted, ante, question As jury’s whether there is suffiсient evidence to support implied findings that defendant breached its of care proximate and that such breach was a cause of

plaintiff’s injury here—namely, distinct from the issue addressed whether defendant owed a of care to under the circumstances of this case. Mata, a guard In a bar proprietor posted 105 Cal.App.4th club and a billy large the front door of its bar and armed him with inside the number of who guard was instructed monitor flashlight. patrons bar so to exceed the room’s identifica entered the as not capacity, inspect minors, out to check customers for weapons, tions order detect keep “banned” from and to customers and certain customers eject unruly prevent addition, bar or on the In guard entering remaining premises. break, to inform when he needed to take a so instructed the bar proprietor {Id., could guard’s assume proprietor responsibilities. at the bar asked the guard evening question On he took break. brother to assume his while a restroom post proprietor’s customer, who had been banned guard’s break During previously returned to the bar and earlier that same had and been yet, evening, ejected leave, bar, and, after told to again again being from the returned bar yet the the gunshots walked outside and fired front door of immediately through bar, {Mata, one at supra, and others. 105 killing person wounding Cal.App.4th the who was killed The relatives of surviving patron the a other and their relatives sued injured patrons proprietor premises liability theory. defendant, the court’s of for the

Overturning grant summary judgment trial to of in Mata asserted that “Ann M. is the Court inapposite [the , a . . . because liability] proprietor] employed security guard proprietor’s [the the and that wаs on criminal assault murder guard duty occurred].” [when continued, 1128.) very 105 at court in {Mata, Mata supra, Cal.App.4th p. the duty “The had been assumed and already to broadly: protect therefore id., added; {Ibid.,italics see also issue irrelevant.” foreseeability becomes of doctrine, the the this broad Within context of special relationship the that “the issue misleading. suggestion to language potentially Contrary a of becomes irrelevant” whenever a has foreseeability proprietor employed {Mata, 1128), 105 the security guard Cal.App.4th to remains relevant the existence conduct question doctrine. For of a under the proprietor’s duty relationship scope special relevant in the existence highly determining remains example, foreseeability discussed, ante, take warn of or to dangers to any duty, scope or imminent to or invitees patrons ongoing measures appropriate protect criminal conduct. the Court it also that appears

Based upon language quoted, Mata, 1121, that a duty 105 Cal.App.4th determination Appeal’s case, court’s in that have been influenced by existed may appellate undertaking of a but doctrine—the understanding separate negligent related

249 who, initial to that a no having establish volunteer doctrine. Our cases another, be found to so, will services protective do undertakes to provide if one undertaking of that due care in the have a exercise performance (a) to exercise such either the volunteer’s failure two conditions is met: (b) or the other ‍‌​‌‌‌‌‌​‌‌‌​‌‌​‌‌​‌‌​‌​‌​‌‌‌​‌​‌‌‌​‌‌‌‌‌‌‌‌​​‌‌‌‍person of harm to the other person, care increases risk as a undertaking injury and suffers relies volunteer’s upon doctrine, that if in Mata have been influenced by Even the court may result.28 however, recognize important broad failed language decision’s limitations of that doctrine. qualifications a propri

Mata terms that expansive hiring guard indicated We disagree. its necessarily general duty etor assumes protect patrons. First, the nature assumed scope any duty depends 604, 614—615.) because (See Merely Cal.4th undertaking. Artiglio, supra, a security pro “chooses have other supermarket enterprise not guard signify does roving security includes gram” provision assumed invitees from party has proprietor Markets, (Brown 1998) S.W.2d violence. Schnuck Inc. v. (Mo.Ct.App. 28 Williams, police (discussing in which seq. See 34 Cal.3d et circumstances public); an owed officers will be found to have undertaken affirmative to members of County (“Liability Cal.App.3d Weissichv. Marin act, general duty voluntarily on a but may imposed person be who has no who has assumed behalf, duty thereby an and action on or her protective toward individual undertakes his 232, reliance”); (1967) inducing Bakery, see also v. Helms Ltd. 67 Cal.2d 238-244 [60 Schwartz 510, (describing theory liability negligent undertaking 430 P.2d of as 68] law,” liability upon “[f]irmly finding premised rooted in common and be could Paz, 550, undertaken); (recogniz duty generally supra, 22 breach of see CalAth 558-562 doctrine, duty undertaking finding to no ing potential pursuant negligent act to the but such signal); undertaking, litigation concerning delayed a traffic duty, and hence no installation of 479, 604, Corning, Artiglio v. 18 Cal.4th 957 P.2d Inc. 613-618 [76 1313] doctrine, (Artiglio) (recognizing duty pursuant negligent undertaking to act but potential to litigation safety no finding undertaking, duty, concerning no such and hence silicone Torts, 868, Witkin, Law, 234; Summary supra, 2 implants); page breast 6 of Cal. section Torts, 319, supra, pages Dobbs on section 860-864. rule, (sometimes negligent undertaking doctrine referred to as the “Good Samaritan” This Torts, rule) actuаlity but in an to that in Restatement Second of sections exception reflected concerning duty by a defendant to 323 and 324A. Section 323 addresses cases assumed Williams, 18, 23; (See Park supra, Blankenship 34 Cal.3d see also v. Peoria Dist. another. 291-292, 287, 1994) [swimming (Ill.Ct.App. Ill.App.3d 269 416 N.E.2d 207 Ill.Dec. [647 325] swimmer]; adult operator duty provide lifeguard protect to Feld v. Merriam pool undertook 742, duty complex Pa. 383 landlord undertook [apartment 506 A.2d [485 746-747] 634, (Tex. 1999) security guards]; Dept. 8 S.W.3d v. Texas Parks and provide Wilson Wildlife warning [park provide Tex. J. undertook siren Sup. 635-636 Ct. district flood]; 1996) City (Utah P.2d by Through Lake impending Nelson and Stuckmanv. Salt river].) park nearby Similarly, undertook erect and maintain fence between [state duty concerning a defendant to 324A of Restatement addresses cases assumed section Paz, 550, 559; (See Artiglio, supra, supra, 22 Cal.4th persons. 530, 535.) A store that hires a officer” to “security its interior guard “cash office” for three each hours does not day assume a duty a customer who is in the injured store’s exterior lot act parking of a third Stores, (See Posecai v. Wal-Mart Inc. party. (La. 1999) 762, 764, 752 So.2d 769 & fn. Second, noted, as a defendant’s will undertaking support of a finding (a) to another if duty only defendant’s action increased another, the risk of harm to or (b) the other person reasonably relied (Williams, undertaking to his or her 18, 23; detriment. 34 Cal.3d Marin, Weissich v. County 1077.) The court Cal.App.3d in Mata did not consider whether the imposition in that liability case was consistent with these limitations. (Mata, implications Mata's broad language

Finally, contrary 1128), Cal.App.4th foreseeability remains a highly relevant factor— even in cases which a legal (and is found regardless the doctrine under found). which it is For even when a example, proprietor voluntarily has one or employed more guards is found to properly оwe a patrons, foreseeability remains relevant to the fact finder’s determination of breach and causation.

V We conclude that the Court of below erred in the trial reversing court’s judgment in favor of on the that defendant ground owed no Instead, duty to plaintiff. ante explained, because defendant had actual notice of an assault impending involving its Joseph plaintiff, special- reasonable, included an relationship-based to take obligation relatively simple, minimally burdensome to avert steps attempt danger. Whether there was sufficient evidence to support jury’s determinations of breach matters, others, causation are among to be addressed by the Court of on remand. Appeal judgment the Court of is reversed and the matter is

remanded for further that court proceedings permit to address defendant’s remaining contentions as well as the issues raised concerning damages in his plaintiff cross-appeal.

Baxter, J., J., Chin, J., Moreno, J., Werdegar, and concurred. KENNARD, J., torts, In thearea Dissenting. one of the more difficult issues is when a determining business owner owes a others protect are Contributing complexity the criminal acts of parties. under and (1) the when difficulty predicting such as these:

considerations strike; (2) determining difficulty criminal might circumstances a what liable harm caused be for the civilly owner should held whether business conduct; the need to avoid imposing the third party’s the risk in where on business owners areas poor onerous burden particularly on owners will the burden great, as the pass of criminal activity particularly it; who, able and of their are less to shoulder to customers because poverty, a burden on owners (4) the concern that too onerous business imposing and to closе businesses or relocate to safer areas cause them their may poor communities, essential affluent thus and poor jobs more depriving services. case, defendant’s this Michael Wollery Delgado leaving

In as plaintiff restaurant, men, came signal, 10 to 15 on prearranged gang apparently of the view and attacked him. Unlike I am hiding brutally majority, out and thus could not have foreseen vicious assault business owner owe a him an attack. did not from such

I. At November 10:00 approximately p.m. Saturday, plaintiff friends, wife, (Trax) the Trax his with two went to Bar & Grill together of, to, the their car in and near the entrance They Turlock. front parked restaurant. Nichols, a guards:

Trax two Juan Navarro and Jason employed security shirt, former officer. Each wore black with word “SECURITY” police letters on white the back of the shirt. visit, three another Jacob who was with

During Joseph, plaintiff’s patron, or four and was unknown to started companions staring plaintiff, plaintiff, uncomfortable, he stared made who back. Because staring plaintiff He, wife, the front decided to leave. his and their two friends walked out of attack, he toward Plaintiff did and neither any door their car. not anticipate car, in the Just reaching nor his wife noticed lot. before anyone parking around, he heard in a as he turned language; someone yell foreign him, near in a again foreign When Joseph. got Joseph yelled saw Joseph men roughly which a dozen surrounded language, instantly point kicked, with pepper attacked After getting punched, sprayed plaintiff. lot, ran through park, broke free and across the parking spray, plaintiff street, seriously with him caught up into the where some assailants a him him with baseball bat. injured hitting

Plaintiff’s wife corroborated his version of events. She testified that nowhеre, 10 to 15 men Joseph’s yell, came out of “like had they been cars,” crouched behind and attacked her husband. She saw her husband break assault, free of the lot, initial run across the parking through park, street, into the where he was again attacked. Nichols,

According to security guard wife told him inside the plaintiff’s restaurant that there was to be going a When he fight. looked over he saw other; at each plaintiff staring Joseph indicated there staring was to be going and he fight, asked to leave. As plaintiff Nichols escorted lot, plaintiff his into the one companions of the men who parking had been with came out and Joseph asked plaintiff, “What’s When up?” plaintiff asked, in turn “What’s four men up?,” rushed toward Nichols plaintiff. men; grabbed arm of one of the at that some 15 men point suddenly from behind appeared cars and a trash dumpster surrounded “like plaintiff aid, wolf In pack.” coming plaintiff’s security guard Nichols was injured. Nichols saw break free and run plaintiff across the lot and into the parking Navarro, street. The other Juan guard, called the emergency telephone number, to the attack. The report police within two to three responded minutes. witness,

Called as a rebuttal wife denied plaintiff’s approaching security guard Nichols in the bar and him warning there was to be a going She fight. also Nichols’s version of disputed events leading attack. up that, inside,

Jacob testified while Joseph he and stared at each plaintiff other, that after he went outside to smoke a cigarette came out and plaintiff swore at him and his hands as if to put up fight, that then Joseph yelled out something Assyrian, of men attacked whereupon group plaintiff. Joseph outside, said that when he came several men were out in already “[hjаnging lot.” parking defendant, restaurant, Plaintiff sued alleging negligence. The found jury $81,391.61 plaintiff awarded him Defendant damages. appealed. While the appeal the First District pending, Court of decided Appeal Mata v. Mata 141], Cal.App.4th which involved a negligence action against business owner based on a third violent criminal act. party’s Mata held that because the owner had employed who was security guard at the time of the working shooting, “duty had been already assumed and therefore the issue of foreseeability (id. becomes irrelevant” 1128), it rendering for the unnecessary plaintiff had notice of “prove (id. 1129). similar acts” proprietor In case, the Fifth District Court of reversed the judgment for based on lack of a duty, and with the disagreed Mata expressly court’s holding We review to resolve the foreseeability. granted conflict.

253 Mata, v. 105 the court Mata in I that agree with majority 1121, that foreseeability that in case saying erred Cal.App.4th with the 250.) majority’s But I disagree irrelevant. (Maj. opn., p. and take a to anticipate conclusion that defendant here owed plaintiff duty that led to assault gang the unforeseeable violent against precautions injuries. plaintiff’s

II. to take advance duty Did defendant business owner owe a plaintiff he gang from the vicious and violent assault precautions protect plaintiff no, because attack could not have been reason- suffered? The answer is ably foreseen. of law to be existence a owed a scope duty question Center (Ann M. v. (1993) 6 Shopping decided the court. Plaza Pacific M.).) 666, 137, (Ann

Cal.4th 863 P.2d Whether [25 (Rowland v. Christian (1968) exists on considerations of duty depends policy. 97, 108, 561].) As a leading 69 Cal.2d 112-113 P.2d Cal.Rptr. ‍‌​‌‌‌‌‌​‌‌‌​‌‌​‌‌​‌‌​‌​‌​‌‌‌​‌​‌‌‌​‌‌‌‌‌‌‌‌​​‌‌‌‍[70 observed, treatise has “is of the sum total of those only an expression сonsiderations of which lead law to is entitled say policy Keeton, 53, (Prosser (5th 1984) 358.) & Torts ed. protection.” § is an factor in the existence of Foreseeability determining duty. important M., (Ann 6 Cal.4th at It also crucial role plays 564, 572, (Ballard v. Uribe (1986) 41 Cal.3d determining cause. proximate 624].) fn. 6 715 P.2d But whereas decides jury causation, Here, {Ibid.) it is the court that determines whether a exists. the issue is one of not causation. duty, law,

In a business liability against tort when to question impose owner not future criminal acts of third taking against possible precautions evolved, been a Two have as this has one. basic parties vexing approaches Ann court The totality Cal.4th 677-679. explained pages it into test takes negligence; circumstances general applies principles nature, condition, it account such and location things as the premises; on the evidence. The foreseeability views as a of fact turns question no in the second view business has takes the that a owner approach words, absence of a incident in other it views on prior premises; before the occurrence of similar event requiring owner. take measures can be business imposed precautionary Dobbs, (2 The Law The discussion of Torts § two some on how court has those applied follows sheds light approaches. In this court v. in Isaacs Memorial Huntington Hospital 356, 112 (Isaacs), Cal.3d 695 P.2d held that the existence [211 of a business owner’s criminal acts of third anticipate could be parties established, incident, even if not there had been a similar by considering prior circumstances, the of with totality harm a foreseeability being of of question 126, 127, 130; the (Id. fact for jury. Kentucky at see also Fried pp. Chicken of Inc, Cal., 814, (1997) v. 14 Superior Court Cal.4th 823-824 Cal.Rptr.2d [59 756, 1260].) 927 P.2d M., 666,

Eight later in Ann years suprа, 6 Cal.4th this court held that in the incident, of absence a a prior similar business owner had no provide security guards to a a criminal assault a third protect plaintiff against by party. (Id. 679.) conclusion, at In this p. Ann M. revisited the reaching totality Isaacs, 112, circumstances rule this had court in 38 Cal.3d adopted supra, there noting was no need in Isaacs to consider the viability prior similar incident order to in decide the case because the approach facts there M., disclosed evidence ample (Ann third criminal assaults. prior party that, 678.) Cal.4th at Ann M. supra, also observed p. contrary broadly Isaacs, worded in in suggestion the context of a foreseeability analysis court, of law for the not a for the question question (Ibid.) fact jury. later, Arman, years Six in P. v. Sharon Ltd. 21 Cal.4th 1181 [91 35, 121], Cal.Rptr.2d 989 P.2d we similar incident applied rule of prior M., 666, Ann to a supra, Cal.4th business failure owner’s to provide that, security measures other than We held hiring guards. there the absence of a similar incident or other evidence a a prior showing foreseeable risk of assault, criminal violent owner business did not owe the a plaintiff duty deter criminal assaults in its underground by garage keeping garage clean, lit and brightly by “requiring] existing personnel periodically P., through (Sharon walk garage.” at supra, 2004,

Most recently, we incident applied similar rule to hold prior that, incident, in the absence of a similar of a child care prior operator center did not owe a criminal a a protect against violent assault man car intentionally chain link fence driving through four-foot-high onto (Wiener into a children. v. playground group Southcoast Childcare Centers, 1138, 615, Inc. 32 Cal.4th 88 P.3d 517].) We noted that third “our cases criminal analyze acts party differently ordinary negligence, and us to sense of requirе heightened apply before hold a we can defendant liable for the criminal acts (Id. parties.” sudden, on

Here, attack and vicious gang discussing unexpected, similar” even “[n]othing remotely Court of noted that Appeal plaintiff, on and thus the assault ever on defendant’s had occurred before premises, conclusion, Court reaching have foreseen. In this could not been plaintiff M., in Ann 666. supra, Cal.4th court’s decision relied Appeal Arman, Sharon P. v. Indeed, in Ann 6 Cal.4th like the plaintiffs Centers, Inc., Ltd., and Wiener v. Southcoast Childcare 21 Cal.4th assault here the victim of noted, here concedes the majority a third As Court party. attacks at Trax. 245), there had been no (maj. opn., none been altercations between patrons, in the there had some Although past v. Jacmar (See or attacks on Alvarez fights involved gang gang patrons. Pacific 1190, Corp. Cal.App.4th Pizza [122 conduct, there no duty the criminal is foreseeability of particular [“Absent harm”].) from that plaintiff particular type M., court’s recent decisions in Ann here far goes beyond this majority 666, decisions supra, 6 Cal.4th and its court’s Anyone reading progeny. Arman, Ltd., 666, supra, in Ann Sharon P. v. Cal.4th supra, 6 Cal.4th Inc., Centers, 1181, v. Childcare Wiener Southcoast 32 Cal.4th (1) the rule would conclude that incident applies prior owners for to take failing claims business premises liability against precau criminal conduct tions of third when against possible parties future that conduct is a criminal assault party, suggested Cal., Court, Kentucky Fried Chicken Inc. at Superior v. 823-824, of circumstances rule when the business’s pages totality applies or ongoing owner criminal conduct is become aware that employees imminent. Centers, v. Southcoast Childcare language Wiener on certain

Relying Inc., 32 Cal.4th which announces a different rule in majority harm existence of business owner’s from prevent third-party balancing criminal acts is through “sliding-scale” determined approach harm of the that degree burden foreseeability against weight (Maj. would on the business owner. measure particular preventive impose ante, case, the asserts 243.) to the facts of this Turning majority opn., actions, that the had a to take burdensome minimally restaurant owner following such as Nichols to dissuade having security guard try Joseph of criminal assault as he left restaurant because some sort plaintiff Thus, whether instead of focusing foreseeable. (Maj. opn., foreseeable, decides majority what occurred at restaurant was here the owner owed a because the (the owner’s employee could have security guard) done different that something have broken might the causal chain of events. “While causation is an element of indispensable ” element, negligence it is neither liability, the only nor a substitute for ‘duty.’ v. (Hegyes Unjian Inc. Enterprises, (1991) 234 Cal.App.3d 85].) Because there are numerous causes of event that any precede occurrence, its it is always possible that could point something have been done and the differently, majority’s approach close to perilously imposing has no liability limits. case,

In this whether one applies similar incident or the approach totality circumstances the result is the approach, same: no on the liability part earlier, business owner. As I discussed the Court of noted the absence of any prior acts similar to the assault here gang concluding vicious attack on plaintiff by of 10 to 15 men gang who came out suddenly of hiding was not an event that the owner could foreseen, have thus precluding liability. The result is the same under the totality circumstances which approach, applies general earlier, principles negligence. As noted is a crucial consideration in the determining existence of a (Ann duty. 6 678; Issacs, Cal.4th at p. 38 Cal.3d at It is the general character of the event that is to be required foreseeable. (Bigbee v. Tel. Pacific 49, & Tel. (1983) Co. 34 857, Cal.3d 57-58 947].) 665 P.2d Cal.Rptr. [192 Here, the hostile staring the Joseph statement reported by plaintiff’s wife that a seemed fight imminent were insufficient to alert defendant business owner to the likelihood that a brutal assault on gang 10 plaintiff by to 15 men would later occur outside the restaurant. Viewing totality circumstances known to the restaurant’s employees, form of violent criminal conduct was unforeseeable. faults majority defendant for failing “address the imminent danger”

(maj. 246) opn., p. because security guard Nichols did not try to stop Joseph leaving restaurant. But the existence and of a business scope owner’s duty protect against threat of future criminal activity, imminent otherwise, on the depends of the sort of criminal foreseeability conduct Arman, (See Ltd., occurred. actually Sharon P. v. supra, 21 Cal.4th at of care duty did not include the [“defendants’ of hiring security for the guards garage because the bank robberies were not similar sufficiently to the sexual assault crime to establish a high degree foreseeability”]; v. Lopez (1987) McDonald's Corp. 510-511 Cal.App.3d [238 Cal.Rptr. of prior crimes on business 436] [existence crime premises high area, robberies, two including did not make massacre armed foreseeable]; Stores, reasonably Gregorian v. National Convenience Inc. proprietor (1985) Cal.App.3d 302] [“[w]hile that his . anticipate place . . may reasonably of an сonvenience store allnight robbers, cannot be said for armed the same will be the target business vicious violence”].) As I have group from gang explained, crime resulting foreseeable. the restaurant not that occurred outside attack occurred, did call Navarro 911. security guard Once the attack one follows the prior of whether To summarize: irrespective or some intermedi- of circumstances incident approach, totality approach, the business owner the conclusion the same: ate “sliding-scale” approach, from the violent protect plaintiff here did not owe to anticipate for this conclusion that occurred. additional Providing support assault gang considerations, discussed are various below. policy

III. Christian, in Rowland v. 69 Cal.2d years ago, Thirty-seven one person court articulated certain considerations that determine when policy (the an another defendant) person owes a in tort to take action to protect (the (1) the from harm. Those considerations are: plaintiff) suffered (2) the harm to the plaintiff; degree certainty (3) the closeness the defendant’s conduct of the connection between injury; harm; (5) and the future injury; preventing plaintiff’s policy defendant extent of burden on the and the imposed consequences care, to exercise with community resulting liability imposing breach; cost, the event of a availability, prevalence the risk insurance for involved. {Id. that the business owner

These considerations conclusion policy support here did not owe a As demonstrated in injuries. part to prevent plaintiff’s n, above, Although here the harm to was not foreseeable. plaintiff particular attack, it gang is that wаs in the vicious seriously injured undisputed plaintiff and the the between conduct of defendant business owner connection the attenuated, moral blame can be very harm to is and little highly criminals, conduct, defendant’s it was the not attached to for conduct owner, and legally the both that of business primarily responsible, defendant, it is for As to the burden on substan- morally, plaintiff’s injuries. indication of a In the absence of a similar incident or some other tial. prior assault, owner can only foreseeable risk of a criminal a business occur, when, where, and what and a criminal assault guess might how number should measures an infinite of protective among possible precautions be taken. the

Particularly significant are adverse consequences community the that the and recognizes here. no majority imposes Although segment crime, of our from it is immune violent is more community generally Kaufman, (See in less affluent areas. When Crime prevalent Pays: Business Landlord’s to Protect Customers Duty Criminal Acts Committed on the 89, 107-108, cited.) Premises 31 S.Tex. L.Rev. and authorities In such areas, the cost to businesses elaborate measures is likely to be security incident, In the of a absence similar prohibitive. prior requiring business conduct, owners and a wide anticipate of violent criminal prevent array here, vicious like the including assaults one that occurred is group likely two unfortunate produce consequences these areas. economically depressed Some businesses take elaborate that the may precautions majority’s holding and will on the added their requires, costs to customers in the pass (this tax”), form has been referred a “crime higher prices to as thereby increasing costs of services for the least goods able to аfford people 108; Cabrera, higher (Id. Liability prices. Negligence Landowners Occupiers Criminal Conduct Another: On a Clear Day in for One Can Forever Foresee 23 Cal. Western L.Rev. California doors, Other businesses will close their simply thereby depriving local community as well as employment opportunities goods services. Either the effect to make way, will be life more difficult and for the costly innocent residents of neighborhoods. crime-plagued

The final consideration policy the existence of tort determining cost, availability, insurance. This consideration prevalence liability too weighs against duty here. The broader recognizing imposed guard businesses against violent criminal assaults on their anticipate others, be, customers and the more insurance is if expensive liability going available it is at all. Because the majority imposes requires conduct, business owners all forms of violent criminal even anticipate incident, when there has been no insurance coverage will more liability become and harder to obtain. expanded expensive considerations Accordingly, this court articulated in policy Christian, Rowland v. Cal.2d conclusion that the my support owner here be business should not held liable for not anticipating violent assault gang on plaintiff. reasons, For all of these I dissent. I would affirm the judgment of Court of Appeal. dissent with Justice Kennard’s

BROWN, J., I generallyagree Dissenting. not Delagado Michael Wollery attack on ing opinion. Therefore, Bar & Grill had no foreseeable. defendant Trax Kennard, J., (Dis. conduct. against opn. party However, Kennard, set forth in 253.).) my Justice reasons unlike 260-279, v. De La Torre Morris concurring opinion Brown, J.)), I do not (conc. 113 P.3d opn. Ca.Rptr.3d [30 1182] Cal., Inc. v. Court Kentucky Superior believe our decision in Fried Chicken of P.2d 14 Cal.4th 814 imposed business owners based on ‍‌​‌‌‌‌‌​‌‌‌​‌‌​‌‌​‌‌​‌​‌​‌‌‌​‌​‌‌‌​‌‌‌‌‌‌‌‌​​‌‌‌‍criminal conduct. ongoing

Case Details

Case Name: Delgado v. Trax Bar & Grill

Court Name: California Supreme Court

Date Published: Jun 30, 2005

Citation: 30 Cal. Rptr. 3d 145

Docket Number: S117287

Court Abbreviation: Cal.