Lead Opinion
Opinion
It is еstablished that business proprietors such as shopping centers, restaurants, and bars owe a duty to their patrons to maintain their premises in a reasonably safe condition, and that this duty includes an obligation to undertake “reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures.” (Ann M. v. Pacific Plaza Shopping Center (1993)
We granted review to address a related issue that has divided the Courts of Appeal. In Mata v. Mata (2003)
I
This case arises out of a criminal assault that took place in the parking lot of defendant Trax Bar & Grill (the bar or defendant) in Turlock, California. The evidence adduced at trial, viewed in the light most favorable to the judgment (see 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 359, pp. 408-410, and cases cited), is summarized below.
On weekend nights in 1998, the bar employed two persons variously referred to throughout the trial as “security people,” “security guards,” or “bouncers.”
The bar manager testified that the guards were large and “good strong [men]” whom the manager “thought. . . would do a good job.” He explained that he provided the guards with the T-shirts they wore (bearing the words “Trax Security” or “Security” on the back) and instructed them to (i) patrol the parking lot outside the bar to ensure that persons did not congregate or consume intoxicating beverages there, (ii) check identifications in order to keep out underage patrons, (iii) count those who entered so that occupancy did not exceed 150 persons, and (iv) not physically intervene in any altercation or attack, but instead telephone “911.” In response to a specific question by plaintiff’s counsel concerning whether the bar “had any responsibility for the safety of [its] customers in the parking lot,” the manager replied, “[t]o a certain point, yeah, to see that they got to their car.”
The bar manager explained that the local police had recommended the no-physical-intervention policy, but he conceded on recross-examination that the police could take up to 20 minutes to respond. The manager explained that one purpose of the policy was to protеct the bar’s own guards, who were not trained in crowd control, from injury.
The bar manager acknowledged that at times the bar’s guards ignored the no-physical-intervention policy and personally interceded in fights between patrons, and that when the guards did so they were not disciplined for a violation of procedure. Indeed, a former guard at the Trax bar, John White (who left employment at the bar approximately one month prior to the incident here at issue), testified as an expert (on behalf of plaintiff) that the custom and practice of guards at local bars generally, and his own custom at the Trax bar, was to treat the safety of patrons as a “top priority,” and to actively and physically intervene in attacks (whether inside the bar or in an adjacent parking lot) rather than simply to telephone 911. Finally, White testified that prior to terminating his employment at the Trax bar, he advised the manager that security was inadequate on busy nights.
Prior to midnight plaintiff had become uncomfortable аs a result of the continued staring and decided to leave. Although somewhat inconsistent testimony was presented to the jury concerning the events that immediately ensued leading to plaintiff’s injuries, the jury could have found from the evidence the following: (1) plaintiff’s wife approached Nichols (the interior guard) and expressed concern that “there was going to be a fight”;
Plaintiff filed a personal injury suit against Trax Bar and Grill, Southern Pacific Transportation Company (the landlord), and Joseph; plaintiff’s wife sued the same parties for loss of consortium. At the outset of the trial plaintiff’s wife dismissed her suit, and plaintiff dismissed the landlord as a defendant. Thereafter, following opening statements, the parties stipulated that Joseph had been convicted of a felony, had filed for bankruptcy protection, and no longer was a party to the case.
Trial continued against the Trax bar only, on a premises liability theory. The jury was instructed pursuant to BAJI No. 3.11,* *****
Defendant appealed, contending that because there was no evidence of prior similar criminal assaults either on its premises or in the vicinity, the assault upon plaintiff was unforeseeable as a matter оf law, and that as a consequence it owed no duty to provide a security guard and thus could not be held liable for plaintiff’s injuries.*
While the appeal was pending, the First District Court of Appeal, Division Four, issued its opinion in Mata, supra,
The Court of Appeal below, responding to Mata, supra,
The Court of Appeal’s opinion acknowledged (i) Nichols’s testimony that plaintiff’s wife told Nichols of an impending fight involving her husband, and (ii) Joseph’s testimony to the effect that those who ultimately assisted in the attack upon plaintiff had been, in the lower court’s words, “visible and loitering in the parking lot as a group, contrary to [defendant’s] acknowledged policy of dispersing such gatherings.” The Court of Appeal, however, dismissed this evidence as “insufficient to establish a duty on the part of [defendant] to prevent or intervene in” the assault upon plaintiff. Accordingly, the Court of Appeal reversed the judgment in favor of plaintiff.
We granted review to address and resolve the conflict in these decisions of the First District and Fifth District Courts of Appeal.
II
Although “[a]s a general principle, a ‘defendant owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous’ ” (Tarasoff v. Regents of University of California (1976)
A defendant may owe an affirmative duty to protect another from the conduct
A. The special-relationship-based duty to provide security guards
In a series of cases we have addressed the narrow question of when the scope of a proprietor’s special-relationship-based duty to patrons or invitees properly can be found to include a duty to provide security guards.
In Isaacs v. Huntington Memorial Hospital (1985)
In Ann M., supra,
We began our discussion in Ann M. by noting several basic legal propositions relating to the question of duty. We observed that the existence of a legal duty is a question of law for the court to determine (Ann M., supra,
Explicating the proper approach to foreseeability analysis in relation to a business proprietor’s duty to provide protection for patrons and invitees from third party crime, we stated in Ann M.: “[B]efore and after our decision in Isaacs, we have recognized that the scоpe of the duty is determined in part by balancing the foreseeability of the harm against the burden of the duty to be imposed. (Isaacs, supra,
Turning to the plaintiff’s specific claim that the proprietor’s duty to reasonably secure the premises against foreseeable criminal acts of third parties included, in the circumstances there presented, a legal obligation to provide guards, we stated in Ann M. that although “there may be circumstances where the hiring of security guards will be required to satisfy a landowner’s duty of care, such action will rarely, if ever, be found to be a ‘minimal burden.’ The monetary costs of security guards is not insignificant. Moreover, the obligation to provide patrols adequate to deter criminal conduct is not well defined. ‘No one really knows why people commit crime, hence no one really knows what is “adequate” deterrence in any given situation.’ [Citation.] Finally, the social costs of imposing a duty on landowners to hire private police forces are also not insignificant. [Citation.] For these reasons, we conclude that a high degree of foreseeability is required in order to find that the scope of a landlord’s duty of care includes the hiring of security guards. We further conclude that the requisite degree of foreseeability rarely, if ever, can be proven in the absence of prior similar incidents of violent crime on the landowner’s premises.[
Thereafter, in Sharon P., supra,
We granted review in Sharon P. and ultimately reversed the Court of Appeal’s decision in that case. We found the evidence of рrior crimes insufficiently similar to the violent assault upon the plaintiff to “establish a high degree of foreseeability that would justify . . . imposition of ... an obligation” on the defendants’ part “to provide security guards in their garage.” (Sharon P., supra,
In summary, as explained in Ann M., supra,
B. Other special-relationship-based duties
Even when proprietors such as those described, ante, have no duty under Ann M. and Sharon P. to provide a security guard or undertake other similarly burdensome preventative measures, the propriеtor is not necessarily insulated from liability under the special relationship doctrine. A proprietor that has no duty under Ann M. and Sharon P. to hire a security guard or to undertake other similarly burdensome preventative measures still owes a duty of due care to a patron or invitee by virtue of the special relationship, and there are circumstances (apart from the failure to provide a security guard or undertake other similarly burdensome preventative measures) that may give rise to liability based upon the proprietor’s special relationship.
For example, it long has been recognized that restaurant proprietors have a special-relationship-based duty to undertake relatively simple measures such as providing “assistance [to] their customers who become ill or need medical attention and that they are liable if they fail to act.” (Breaux v. Gino's, Inc. (1984)
Taylor, supra,
III
We now apply to the case before us the principles discussed above. We shall conclude, contrary to the Court of Appeal below, that defendant owed a duty to plaintiff pursuant to the special relationship doctrine. Prior to doing so, however, we first address a preliminary point advocated by defendant.
A. Is “heightenеdforeseeability” always required when a plaintiff seeks to impose a special-relationship-based duty upon a proprietor?
Defendant, supported by an amicus curiae on its behalf, asserts that a showing of heightened foreseeability as defined by Ann M. and its progeny always is required when a plaintiff seeks to impose special-relationship-based liability upon a proprietor related to the criminal conduct of a third party. In support, defendant and amicus curiae rely upon Hassoon v. Shamieh (2001)
In Hassoon a customer, the plaintiff, was inside a grocery store at night when he and the store’s employee noticed a man—known to be a drug dealer—being beaten on the sidewalk by a group of fellow drug dealers. The store’s employee rescued the victim and brought him inside while the attackers remained outside. Soon thereafter shots were fired into the store, injuring the customer, who subsequently sued the proprietors and the employee, claiming that the proprietors’ employee acted negligently in rescuing the victim and thereby exposing the customer to the ensuing gunshots fired from outside the store. (Hassoon, supra, 89 Cal.App.4th at pp. 1193-1194.)
Clearly, the facts in Hassoon did not implicate a proprietor’s possible obligation to provide guards or take other similarly burdensome action designed to prevent future crime, but instead concerned only a proprietor’s asserted duty to refrain from rescuing a crime victim in the face of unfolding criminal activity on or near the premises and from thereby putting the customer in danger. Nevertheless, in affirming summary judgment in favor of the defendants on three separate grounds,
This aspect of the decision in Hassoon—and the similarly broad position advanced
Accordingly, to the extent Hassoon v. Shamieh, supra,
B. Special-relationship analysis
Turning to the application of the special relationship doctrine in the case before us, it is undisputed that defendant, a bar proprietor, stood in a special relationship with plaintiff, its patron and invitee, and hence owed a duty to undertake “reasonable steps to secure common areas against foreseeable criminal acts of third parties that [were] likely to occur in the absence of such precautionary measures” (Ann M., supra,
To the extent plaintiff’s special-relationship-based claim rests upon an assertion that defendant was legally required to provide a guard or guards or to undertake any similarly burdensome measures, we initially must consider whether defendant was obligated to do so under Ann M. and Sharon P. In this respect, of course, plaintiff was required to demonstrate heightened foreseeability in the form of prior similar criminal incidents (or other indications of a reasonably foreseeable risk of violent criminal assaults in the bar or its parking lot—see ante, at fn. 19).
In considering whether plaintiff made such a showing, we reject the suggestion of the Court of Appeal below that in order to establish heightened foreseeability under Ann M., plaintiff was required to produce evidence not only of prior similar criminal assaults, but of “a coordinated gang attack on an individual patron.” Heightened foreseeability is satisfied by a showing of prior similar criminal incidents (or other indications of a reasonably foreseeable risk of violent criminal assaults in that location) and does not require a showing of prior nearly identical criminal incidents. (See Claxton v. Atlantic Richfield Co. (2003)
Although the record refers to a few prior altercations between patrons, we agree with the conclusion of the Court of Appeal below that plaintiff produced insuffiсient evidence of heightened foreseeability in the form of prior similar incidents or other indications of a reasonably foreseeable risk of a violent criminal assault on defendant’s premises that would have imposed upon defendant an obligation to provide any guard, or additional guards, to protect against third party assaults. But the absence of heightened foreseeability in this case merely signifies that defendant owed no special-relationship-based duty to provide guards or undertake other similarly burdensome preventative measures; it does not signify that defendant owed no other special-relationship-based duty to plaintiff, such as a duty to respond to events unfolding in its presence by undertaking reasonable, relatively simple, and minimally burdensome measures. Indeed, the record clearly establishes the existence of such a minimally burdensome duty here.
As noted earlier, the trial record contains evidence that defendant’s employee and guard, Nichols, was aware of facts that led him to conclude, at least a few minutes prior to the occurrence of the assault (and prior to plaintiff’s departure from the bar), that a fight was likely to occur between Joseph and his three or four companions and plaintiff, absent some intervention on Nichols’s part. The record also establishes that Nichols formed the opinion that in order to avoid an altercation it was necessary to separate plaintiff from Joseph and his group by removing plaintiff from the bar while simultaneously leaving Joseph and his group inside, and that in order to put that plan into action Nichols approached plaintiff and directed him to depart from the bar.
Having considered the Rowland factors (Rowland v. Christian, supra,
Such minimally burdensome measures may have included, for example, Nichols attempting to maintain the separation between plaintiff and Joseph’s group that Nichols had determined was called for in order to avoid an imminent assault, by turning his attention to Joseph and his companions in order to dissuade them from following plaintiff (who, at Nichols’s direction, was departing from the bar).
IV
As noted at the outset of this opinion, we granted review in this matter largely in light of the conflict between the Court of Appeal opinion in this case and the earlier Court of Appeal opinion in Mata, supra,
In Mata, supra,
On the evening in question the guard on duty at the bar asked the proprietor’s
Overturning the trial court’s grant of summary judgment for the defendant, the Court of Appeal in Mata asserted that “Ann M. is inapposite as to [the proprietor’s liability] because [the proprietor] employed a security guard . . . , and that guard was on duty [when the criminal assault and murder occurred].” {Mata, supra,
Within the context of the special relationship doctrine, this broad language is potentially misleading. Contrary to the suggestion that “the issue of foreseeability becomes irrelevant” whenever a proprietor has employed a security guard {Mata, supra,
Based upon the language quoted, ante, it also appears that the Court of Appeal’s determination in Mata, supra,
Mata indicated in expansive terms that by hiring a guard a proprietor necessarily assumes a general duty to protect its patrons. We disagree. First, the scope of any duty assumed depends upon the nature of the undertaking. (See Artiglio, supra,
Finally, contrary to the implications of Mata's broad language (Mata, supra,
V
We conclude that the Court of Appeal below erred in reversing the trial court’s judgment in favor of plaintiff on the ground that defendant owed no duty to
The judgment of the Court of Appeal is reversed and the matter is remanded for further proceedings to permit that court to address defendant’s remaining contentions as well as the issues concerning damages raised by plaintiff in his cross-appeal.
Baxter, J., Werdegar, J., Chin, J., and Moreno, J., concurred.
Notes
Trial testimony established that “bouncer” is the common term for a person who provides security services in a bar or other similar establishment.
Nichols so testified. On redirect examination, however, plaintiff’s wife explicitly denied having told Nichols that she feared a fight would occur.
Nichols, who described himself as the bar’s “head of security,” testified that he observed plaintiff staring at Joseph, and Joseph (who wаs talking on a cell phone) staring back at plaintiff. Nichols explained that no words were spoken between the two but that Joseph continued to “blatant[ly] stare” at plaintiff. Nichols also stated that, based upon these observations, he anticipated that a fight was in the offing: “Usually from the past [of] what I saw in that bar, that meant there was, you know, going to be a fight.”
Nichols testified that he “went up to [plaintiff and] told him . . . I’m going to have to ask you to leave.” According to Nichols, plaintiff responded, “that’s no problem” and began to walk out of the bar. Nichols explained that he undertook these measures to “remove the threat,” and that he elected to remove plaintiff rather than the others because “one guy is easier to move than four people.”
Plaintiff and his wife so testified. Nichols, however, asserted that he escorted plaintiff to the parking lot and that when the assault upon plaintiff began, he attempted to protect plaintiff and suffered injuries to himself in the process. No other testimony supported Nichols’s assertions in this respect, and the parties stipulated that the extensive police reports concerning the events do not mention Nichols’s name.
Nichols testified that as plaintiff walked toward the car, Joseph, accompanied by three or four men from inside the bar, followed plaintiff outside and said something to the effect of “well, what’s up?” Plaintiff responded similarly, and at that point, according to Nichols, “the four guys ran toward [plaintiff],” who “began to prepare to defend himself and there was a fight.” Nichols testified that very soon thereafter Joseph, who is of Assyrian heritage, called out in Assyrian, and that 12 to 20 additional mеn immediately appeared from the area containing a dumpster and parked cars and began to assault plaintiff. Plaintiff testified that because he wished to protect his wife from danger from the attackers, he ran out of the parking lot and crossed the street, where he was followed by five or six men from the group. Once there he was beaten by Joseph and at least one other person with a stick or baseball bat. Plaintiff’s wife testified that members of the group restrained her and taunted, “watch, watch. And they used some foul language [and said] [y]our husband is not so big now; is he?”
That instruction provided: “One test that is helpful in determining whether or not a person was negligent is to ask and answer the question whether or not, if a person of ordinary prudence had been in the same situation and possessed of the same knowledge, [he] [or] [she] would have foreseen or anticipated that someone might have been injured by or as a result of [his] [or] [her] action or inaction. If the answer to that question is ‘yes,’ and if the action or inaction reasonably could have been avoided, then not to avoid it would be negligence.”
That instruction provided: “When the circumstances are such that the possibility of harm caused by the criminal conduct of a third person is, or in the exercise of due care should be, reasonably foreseeable, it is negligence to fail to use reasonable care to prevent such criminal act from causing [injury] or [damage].”
That instruction provided: “The proprietor of a business establishment owes a duty of care to customers when they come upon the business premises at the proprietor’s express or implied invitation, [f] The business рremises include property owned, possessed or controlled by the proprietor. []Q This duty of care requires the proprietor to exercise reasonable care to discover whether accidental, negligent or intentionally harmful acts of third persons are occurring or are likely to occur on the business premises. If a proprietor knows, or should know that such acts are occurring or are likely to occur, the proprietor has the further duty to either give the customer a warning adequate to enable the visitor to avoid the harm, or otherwise to protect the visitor against such harm, ffl A warning will not be adequate when it is apparent that because of a lack of time or the character of the conduct to be expected, it will not be effective to give protection, [f] A failure by the proprietor to perform any such duty of care is negligence. The proprietor does not have a duty to control the misconduct of third persons which the proprietor has no reason to anticipate, or no reasonable opportunity or means to prevent, or which occurs on property neither owned, possessed nor controlled by the proprietor.”
The trial court refused a broad instruction requested by defendant that would have informed the jury that “[violent criminal conduct of a third party is not foreseeable to a restaurant owner unless there [have] been prior incidents of similar violent crime on the premises.”
In addition, defendant renewed its allegation that the evidence was insufficient to support the jury’s findings concerning negligence and causation, and further asserted that the trial court committed instructional error in refusing its proposed special instruction, quoted ante, at footnote 10. Plaintiff cross-appealed, raising issues concerning the proper measure of damages.
As we explained in Tarasoff, “[t]his rale derives from the common law’s distinction between misfeasance and nonfeasance, and its reluctance to impose liability for the latter. (See Harper & Kime, The Duty to Control the Conduct of Another (1934) 43 Yale L.J. 886, 887.) Morally questionable, the rule owes its survival to ‘the difficulties of setting any standards of unselfish service to fellow men, and of making any workable rule to cover possible situations where fifty people might fail to rescue . . . .’ (Prosser, Torts (4th ed. 1971) § 56, p. 341.)” (Tarasoff, supra,
In the course of our consideration of this matter, we solicited briefing upon the potential relevance and effect upon this case of a second exception to the no-duty-to-protect rule—the so-called negligent undertaking doctrine. Because we conclude that the issue before us can be resolved under the special relationship doctrine alone, we need not and do not analyze or apply the negligent undertaking doctrine except as necessary to explain and distinguish Mata, supra,
In addition to the relationship between proprietors and their tenants, patrons, or invitees, special relationships triggering a duty to protect another from foreseeable injury caused by a third party have been found in other contexts, including those of (i) common carriers and passengers, (ii) innkeepers and their guests, and (iii) mental health professionals and their patients. (See generally 6 Witkin, supra, Summary of Cal. Law, Torts, § 859, p. 223 еt seq.; Hahavan et al., Cal. Practice Guide: Personal Injury (The Rutter Group 2004) fj[ 2:856 to 2:875.4; 2 Dobbs on Torts, supra, §§ 317, 322-332; Rest.2d Torts, § 314A.) We addressed the latter special relationship in Tarasoff, supra,
We also pointed out in Ann M. that, in addition to foreseeability, other factors “that courts consider in determining the existence and scope of a duty in a particular case are: *. . . the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing fiiture harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.’ ” (Ann M., supra,
At this point, we observed in a footnote that evidence other than prior similar crimes occurring on the proprietor’s premises might be adequate to establish foreseeability. We stated: “It is possible that some other circumstances such as immediate proximity to a substantially similar business establishment that has experienced violent crime on its premises could provide the requisite degree of foreseeability. Because Ann M. presented no such evidence, we need not further consider this possibility.” (Ann M., supra,
At the close of our opinion in Ann M. we observed in a footnote that the plaintiff had “offered no evidence to show that, like a parking garage or an all-night convenience store, a retail store located in a shopping center creates ‘ “an especial temptation and opportunity for criminal misconduct.” ’ [Citations.] Therefore, we need not consider in this case whether some types of commercial property are so inherently dangerous that, even in the absence of prior similar incidents, providing security guards will fall within the scope of a landowner’s duty of care.” (Ann M., supra,
As observed ante, at footnote 17, we had mentioned the possibility of such an approach in Ann M., supra,
The disjunctive phrase was employed to acknowledge that, even in the absence of evidence of prior similar crimes on the defendant’s premises, other circumstances—for example, similar violent crime occurring on the premises of a nearby and substantially similar business establishment (Ann M., supra,
Most recently we reviewed Ann M., and Sharon P., in Wiener v. Southcoast Childcare Centers, Inc. (2004)
In such situations—in which a proprietor is legally obligated to provide guards to protect the safety of its patrons—the proprietor might be held vicariously liable for the ensuing negligence of its guard (see generally 6 Witkin, Summary of Cal. Law, supra, Torts, § 997, p. 388 et seq.), or for its own negligence in selecting, training, supervising, or retaining the guаrd (cf. Far West Financial Corp. v. D & S Co. (1998)
This aspect of the special relationship duty of bar proprietors relates to, and may overlap, the more general duty (discussed, ante, in pt. II.A) of business proprietors to provide guards to protect the safety of patrons under limited circumstances.
In affirming the granting of summary judgment, the court in Hassoon clearly reached the correct result on its facts: Under Rowland v. Christian, supra,
Restating the sliding-scale balancing formulation and integrating the holdings of our most recent cases, we observe that the guiding principles are these: In circumstances in which the burden of preventing future harm caused by third party criminal conduct is great or onerous (as when a plaintiff, such as in Ann M., asserts the defendant had a legal duty to provide guards or undertake equally onerous measures, or as when a plaintiff, such as in Sharon P. or Wiener, asserts the defendant had a legal duty to provide bright lighting, activate and monitor security cameras, provide periodic “walk-throughs” by existing personnel, or provide stronger fencing), heightened foreseeability-—-shown by prior similar criminal incidents or other indications of a reasonably foreseeable risk of violent criminal assaults in that location—will be required. By contrast, in cases in which harm can be prevented by simple means or by imposing merely minimal burdens, only “regular” reasonable foreseeability as opposed to heightened foreseeability is required.
Contrary to the suggestion in Justice Kennard’s dissenting opinion (post, at pp. 255-256), there is nothing new or “different” in this formulation; indeed, as noted, ante, this general approach has been repeatedly set forth in numerous prior opinions spanning at least two decades, and was most recently—and unanimously—reaffirmed only last year in Wiener, supra, 32 Cal.4th at pages 1146-1147.
The following exchange occurred at oral argument:
Justice Wеrdegar: “Now the Court of Appeal [below], as I recall, said flatly that your client had no duty.”
Defense counsel: “Correct.”
Justice Werdegar: “May I ask you .. . doesn’t the law allow for a duty to behave reasonably as events unfold, and we’ve had discussion about what those events were, including ... a member of the staff telling the victim to leave—is there not a duty to behave reasonably, however that would be defined and whatever the foreseeability might be—but to do something?”
Defense counsel: “Sure, and as I think your honor said in Sharon P., . . . you can’t have a strict similar incident test, . . . there has to be some reasonable . . . .”
Justice Werdegar: “[N]ow I’m not talking about anything that had occurred previously, I’m talking about what was happening at this time.”
Defense counsel: “Right.”
Justice Werdegar: “There was tension, there was a group, a member of the staff saw sufficiently to tell the victim to leave .... [WJouldn’t there be some minimal duty within that context, [even] if nothing had ever happened in this establishment before?”
Defense counsel: “Certainly. Certainly. But I, again I, which leads us to whether or not that. . . duty would extend to protecting this gentleman from . . . what he suffered.” (Italics added.)
We stress that, in light of the clear foreseeability of an imminent assault absent separation of Joseph and his group from plaintiff, defendant’s duty was to attempt to dissuade Joseph and his group from following plaintiff. Contrary to implications in Justice Kennard’s dissenting opinion, we do not suggest that defendant had a duty to guarantee that separation, or, for that matter, to prevent any resulting attack and injury to plaintiff.
The question whether the ultimate group attack upon plaintiff in the parking lot would not have occurred had Nichols successfully dissuaded Joseph and his companions from following plaintiff implicates the sufficiency of the evidence to support the jury’s implied findings of breach of duty and causation—issues that are not relevant to, and do not influence, our analysis of whether defendant owed a duty of care under the circumstances.
In reaching a contrary conclusion, Justice Kennard’s dissenting opinion asserts that “the existence and scope of a business owner’s duty to protect against a threat of future criminal activity, imminent or otherwise, depends on the foreseeability of the sort of criminal conduct that actually occurred. ... As I have explained, the vicious group attack that occurred outside the restaurant was not reasonably foreseeable.” (Dis. opn., post, at pp. 256-257, italics added.)
It is well established that the scope of a defendant’s duty in this context is premised upon the danger that the defendant knows or reasonably should anticipate, and that the defendant’s duty is simply to take reasonable steps in light of those circumstances. As a matter of logic, it is difficult to understand how the existence or scope of a proprietor’s duty properly could depend upon the nature of the criminal conduct “that actually occurred,” rather than the danger of which the defendant was or should have been aware.
In this case, the dissent appears to acknowledge that there is sufficient evidence to support a determination that defendant’s employee Nichols reasonably foresaw a four- or five-on-one assault involving Joseph and his three or four companions, on the one hand, and plaintiff, on the other. The dissent apparently reasons, however, that because defendant did not and reasonably could not foresee what “actually occurred”—that is, that Joseph and his companions would gain a large number of reinforcements in the parking lot—defendant had no duty even to take the steps necеssary to attempt to maintain the separation that Nichols had determined was called for to avoid the more limited group attack that Nichols actually anticipated. But the circumstance that the precise size of the actual gang attack that occurred may not have been reasonably foreseeable does not absolve defendant of the duty to take reasonable steps based upon the nature of the danger that its employee could (and, indeed, did) foresee.
As noted, ante, the question whether there is sufficient evidence to support the jury’s implied findings that defendant breached its duty of care and that such breach was a proximate cause of plaintiff’s injury is distinct from the issue addressed here—namely, whether defendant owed a duty of care to plaintiff under the circumstances of this case.
See Williams, supra,
This negligent undertaking doctrine (sometimes referred to as the “Good Samaritan” rule, but in actuality an exception to that rule) is reflected in Restatement Second of Torts, sections 323 and 324A. Section 323 addresses cases concerning a duty assumed by a defendant to another. (See Williams, supra,
Dissenting Opinion
In the area of torts, one of the more difficult issues is determining when a business owner owes a duty to protect others from the criminal acts of third parties. Contributing to the complexity are considerations such as these: (1) the difficulty of predicting when and under what circumstances a criminal might strike; (2) the difficulty of determining whether the business owner should be held civilly liable for the harm caused by the third party’s criminal conduct; (3) the need to avoid imposing a particularly onerous burden on business owners in poor areas where the risk of criminal activity is particularly great, as the owners will pass the burden on to customers who, because of their poverty, are less able to shoulder it; and (4) the concern that imposing too onerous a burden on business owners in poor areas may cause them to close their businesses or relocate to safer and more affluent communities, thus depriving the poor of jobs and essеntial services.
In this case, as plaintiff Michael Wollery Delgado was leaving defendant’s restaurant, a gang of 10 to 15 men, apparently on a prearranged signal, came out of hiding and brutally attacked him. Unlike the majority, I am of the view that the business owner could not have foreseen this vicious assault and thus did not owe a duty to protect him from such an attack.
I.
At approximately 10:00 p.m. on Saturday, November 7, 1998, plaintiff and his wife, together with two friends, went to the Trax Bar & Grill (Trax) in Turlock. They parked their car in front of, and near the entrance to, the restaurant.
Trax employed two security guards: Juan Navarro and Jason Nichols, a former police officer. Each wore a black shirt, with the word “SECURITY” in white letters on the back of the shirt.
During plaintiff’s visit, another patron, Jacob Joseph, who was with three or four companions and was unknown to plaintiff, started staring at plaintiff, who stared back. Because the staring made plaintiff uncomfortable, he decided to leave. He, his wife, and their two friends walked out of the front door toward their car. Plaintiff did not anticipate any attack, and neither he nor his wife noticed anyone in the parking lot. Just before reaching the car, plaintiff heard someone yell in a foreign language; as he turned around, he saw Joseph. When Joseph got near him, Joseph again yelled in a foreign language, at which point roughly a dozen men instantly surrounded and attacked plaintiff. After getting punched, kicked, and sprayed with pepper spray, plaintiff broke free and ran across the parking lot, through a park, and into the street, where some of the assailants caught up with him and seriously
Plaintiff’s wife corroborated his version of events. She testified thаt upon Joseph’s yell, 10 to 15 men came out of nowhere, “like they had been crouched behind cars,” and attacked her husband. She saw her husband break free of the initial assault, run across the parking lot, through the park, and into the street, where he was again attacked.
According to security guard Nichols, plaintiff’s wife told him inside the restaurant that there was going to be a fight. When he looked over he saw plaintiff and Joseph staring at each other; the staring indicated there was going to be a fight, and he asked plaintiff to leave. As Nichols escorted plaintiff and his companions into the parking lot, one of the men who had been with Joseph came out and asked plaintiff, “What’s up?” When plaintiff in turn asked, “What’s up?,” four men rushed toward plaintiff. Nichols grabbed the arm of one of the men; at that point some 15 men suddenly appeared from behind cars and a trash dumpster and surrounded plaintiff “like a wolf pack.” In coming to plaintiff’s aid, security guard Nichols was injured. Nichols saw plaintiff break free and run across the parking lot and into the street. The other guard, Juan Navarro, called 911, the emergency telephone number, to report the attack. The police responded within two to three minutes.
Called as a rebuttal witness, plaintiff’s wife denied approaching security guard Nichols in the bar and warning him there was going to be a fight. She also disputed Nichols’s version of events leading up to the attack.
Jacob Joseph testified that, while inside, he and plaintiff stared at each other, that after he went outside to smoke a cigarette plaintiff came out and swore at him and put up his hands as if to fight, that Joseph then yelled out something in Assyrian, whereupon a group of men аttacked plaintiff. Joseph said that when he came outside, several men were already “[hjanging out in the parking lot.”
Plaintiff sued defendant, the restaurant, alleging negligence. The jury found for plaintiff and awarded him $81,391.61 in damages. Defendant appealed. While the appeal was pending, the First District Court of Appeal decided Mata v. Mata (2003)
I agree with the majority that the court in Mata v. Mata, supra,
II.
Did defendant business owner owe plaintiff a duty to take advance precautions to
The existence and the scope of a duty owed is a question of law to be decided by the court. (Ann M. v. Pacific Plaza Shopping Center (1993)
In tort law, the question of when to impose liability against a business owner for not taking precautions against possible future criminal acts of third parties has been a vexing one. Two basic approaches have evolved, as this court explained in Ann M., supra, 6 Cal.4th at pages 677-679. The totality of circumstances test applies general principles of negligence; it takes into account such things as the nature, condition, and location of the premises; it views foreseeability as a question of fact that turns on the evidence. The second approach takes the view that a business owner has no duty in the absence of a prior similar incident on the premises; in other words, it views foreseeability as requiring the occurrence of a prior similar event before a duty to take precautionary measures can be imposed on the business owner. (2 Dobbs, The Law of Torts (2001) § 324, pp. 877-878.) The discussion that follows sheds some light on how this court has applied those two approaches.
In 1985, this court in Isaacs v. Huntington Memorial Hospital (1985)
Eight years later in Ann M., supra,
Six years later, in Sharon P. v. Arman, Ltd. (1999)
Most recently, in 2004, we applied the prior similar incident rule to hold that, in the absence of a prior similar incident, the operator of a child care center did not owe a duty to protect against a violent criminal assault by a man intentionally driving a car through a four-foot-high chain link fence onto a playground and into a group of children. (Wiener v. Southcoast Childcare Centers, Inc. (2004)
Here, in discussing the sudden, unexpected, and viciоus gang attack on plaintiff, the Court of Appeal noted that “[n]othing even remotely similar” had ever occurred before on defendant’s premises, and thus the assault on plaintiff could not have been foreseen. In reaching this conclusion, the Court of Appeal relied on this court’s decision in Ann M., supra,
The majority here goes far beyond this court’s recent decisions in Ann M., supra,
Relying on certain language in Wiener v. Southcoast Childcare Centers, Inc., supra, 32 Cal.4th 1138, the majority announces a different rule in which the existence of a business owner’s duty to prevent harm from third-party criminal acts is determined through a “sliding-scale” approach by balancing the degree of foreseeability of harm against the weight of the burden that a particular preventive measure would impose on the business owner. (Maj. opn., ante, at p. 243.) Turning to the facts of this case, the majority asserts that the restaurant owner had a duty to take minimally burdensome actions, such as having security guard Nichols try to dissuade Joseph from following plaintiff as he left the restaurant because some sort of criminal assault was foreseeable. (Maj. opn., ante, at p. 246.) Thus, instead of focusing on whether what occurred at the restaurant was foreseeable, the majority decides that here the owner owed a duty to plaintiff because the owner’s employee (the security guard) could have done something different that might have broken the causal chain of events. “While causation is an indispensable element of negligence liability, it is neither the only element, nor a substitute for ‘duty.’ ” (Hegyes v. Unjian Enterprises, Inc. (1991)
In this case, whether one applies the prior similar incident approach or the totality of circumstances approach, the result is the same: no liability on the part of the business owner. As I discussed earlier, the Court of Appeal noted the absence of any prior criminal acts similar to the gang assault here in concluding that the vicious attack on plaintiff by a gang of 10 to 15 men who suddenly came out of hiding was not an event that the owner could reasonably have foreseen, thus precluding liability.
The result is the same under the totality of circumstances approach, which applies general principles of negligence. As noted earlier, foreseeability is a crucial consideration in determining the existence of a duty. (Ann M., supra, 6 Cal.4th at p. 678; Issacs, supra, 38 Cal.3d at pp. 123-124.) It is the general character of the event that is required to be foreseeable. (Bigbee v. Pacific Tel. & Tel. Co. (1983)
The majority faults defendant for failing to “address the imminent danger” (maj. opn., ante, at p. 246) because security guard Nichols did not try to stop Joseph from leaving the restaurant. But the existence and scope of a business owner’s duty to protect against a threat of future criminal activity, imminent or otherwise, depends on the foreseeability of the sort of criminal
To summarize: irrespective of whether one follows the prior similar incident approach, the totality of circumstances approach, or some intermediate “sliding-scale” approach, the conclusion is the same: the business owner here did not owe a duty to anticipate and protect plaintiff from the violent gang assault that occurred. Providing additional support for this conclusion are various policy considerations, as discussed below.
III.
Thirty-seven years ago, in Rowland v. Christian, supra,
These policy considerations support a conclusion that the business owner here did not owe a duty to prevent plaintiff’s injuries. As demonstrated in part n, above, here the particular harm to plaintiff was not foreseeable. Although it is undisputed that plaintiff was seriously injured in the vicious gang attack, the connection between the conduct of defendant business owner and the harm to plaintiff is highly attenuated, and very littlе moral blame can be attached to defendant’s conduct, for it was the conduct of the criminals, not that of the business owner, that was primarily responsible, both legally and morally, for plaintiff’s injuries. As to the burden on defendant, it is substantial. In the absence of a prior similar incident or some other indication of a reasonably foreseeable risk of a criminal assault, a business owner can only guess when, where, and how a criminal assault might occur, and what protective measures among an infinite number of possible precautions should be taken.
Particularly significant are the adverse consequences to the community of the duty that the majority recognizes and imposes here. Although no segment of our community is immune from violent crime, it is generally more prevalent in
The final policy consideration in determining the existence of a tort duty is the availability, cost, and prevalence of liability insurance. This consideration too weighs against recognizing a duty here. The broader the duty imposed on businesses to anticipate and guard against violent criminal assaults on their customers and others, the more expensive liability insurance is going to be, if it is available at all. Because the duty that the majority imposes requires business owners to anticipate all forms of violent criminal conduct, even when there has been no prior similar incident, insurance coverage for this expanded liability will become more expensive and harder to obtain.
Accordingly, the policy considerations that this court articulated in Rowland v. Christian, supra, 69 Cal.2d 108, support my conclusion that the business owner here should not be held liable for not anticipating the violent criminal gang assault on plaintiff.
For all of these reasons, I dissent. I would affirm the judgment of the Court of Appeal.
Dissenting Opinion
I generally agree with Justice Kennard’s dissenting opinion. The attack on plaintiff Michael Wollery Delagado was not foreseeable. Therefore, defendant Trax Bar & Grill had no duty to protect against third party criminal conduct. (Dis. opn. of Kennard, J., ante, at p. 253.).) However, unlike Justice Kennard, for the reasons set forth in my concurring opinion in Morris v. De La Torre (2005)