Lead Opinion
Opinion
As observed in the companion case, Delgado v. Trax Bar & Grill (2005)
We granted review in this matter to consider the Court of Appeal’s determination that plaintiff, who was injured by third party criminals in the parking lot of defendant’s all-night restaurant while defendant’s employees watched from inside, stood in a special relationship with defendant, and that defendant’s duty to take “such appropriate action as is reasonable under the circumstances” obligated the restaurant’s employees to telephone 911 on plaintiff’s behalf. We agree with the Court of Appeal that a special relationship existed and that it imposed upon defendant, through its employees, such a duty, and that there exists a triable issue of fact concerning whether defendant breached that duty when his employees failed to make a 911 telephone call to summon aid for plaintiff. Accordingly, we shall affirm the judgment of the Court of Appeal, which in turn reversed the trial court’s grant of summary judgment for defendant.
I
Because plaintiff’s appeal is from a trial court order granting summary judgment for defendant, we independently examine the record to determine whether there exist triable issues of fact warranting reinstatement of the action. (Wiener v. Southcoast Childcare Centers, Inc. (2004)
Accordingly, in this matter we must determine whether defendant has shown that plaintiff has not established a prima facie case of negligence. In making that assessment on review of a grant of summary judgment for defendant, we view the evidence in the light most favorable to plaintiff as the losing party below. (Wiener, supra,
II
Defendant Silvino De La Torre is the proprietor of Victoria’s Mexican Food, a 24-hour restaurant located in a small shopping center in San Diego’s Nestor area. At the time relevant here (in mid-2000), the other five businesses in the center generally maintained only daytime business hours. A parking area located directly in front of the restaurant serves the entire shopping center. Under the terms of his lease, defendant enjoys nonexclusive use of the entire parking lot and pays 20 percent of the maintenance costs for that common area.
The restaurant has an approximately 40-foot-wide storefront of large plate glass windows that afford an unobstructed view of the parking area; the restaurant posts advertising in the windows that can be read from the parking lot. A narrow dining section is located in the front of the restaurant interior. A
At approximately 1:00 a.m. on August 1, 2000, plaintiff Charles E. Morris IV, along with his friends Bonilla, Rhodes, Miranda, and Gallegos, arrived in Gallegos’s car and parked in the described area immediately outside the restaurant. Miranda and Rhodes entered the restaurant to purchase food while plaintiff, Gallegos, and Bonilla waited outside. Plaintiff, a frequent customer of the restaurant, had a stomachache and did not plan to eat.
At about this time Richard Cuevas and Saul De La Vega arrived by car and parked near plaintiff and his companions. Cuevas and De La Vega were members of the Nestor Street gang. Apparently, neither plaintiff nor any of his friends were gang members. Cuevas, approximately six feet tall and bare chested (with the word “Nestor” tattooed on his chest in three-inch letters), approached plaintiff and his companions in a hostile manner and asked where they lived. Immediately thereafter Rhodes and Miranda emerged from the restaurant, and Rhodes attempted to calm Cuevas by offering to shake hands. Cuevas replied that he was “Lobo from Nestor” and was not there to make friends. When plaintiff responded that he was from Imperial Beach, Cuevas punched him, at which point plaintiff’s companions began to fight in defense of plaintiff. De La Vega threw two unopened cans of beer at plaintiff and his companions and began to rip off his own shirt; Cuevas ran into the restaurant, yelling to its employees in Spanish slang that he wanted a “filero”—a knife.
Inside, restaurant employees Najera, Coronado, and Hernandez, all of whom subsequently were interviewed by the police, each watched the unfolding altercation and saw and heard Cuevas enter the restaurant and demand a knife. Although there is conflicting testimony regarding how Cuevas entered the kitchen itself, it is undisputed that all three employees watched Cuevas depart from the kitchen with an approximately 12-inch knife. Najera told the interviewing officer that he was frightened when Cuevas entered, and had opened the gate for Cuevas. In a subsequent deposition, however, Najera denied having opened the gate. Coronado stated that he told Cuevas he was not allowed to enter behind the counter, but Cuevas nevertheless barged through the unlatched swinging gate. Hernandez stated that from the kitchen area he had seen persons fighting and had observed Cuevas enter
Approximately 25 feet from where the employees were watching from inside the restaurant, Cuevas stabbed plaintiff at least twice. The employees continued to watch as Cuevas chased Rhodes and Bonilla, who ran out of the parking lot and across a street. Unable to overtake them, Cuevas returned to the car in which plaintiff and his companions had arrived and used the knife to puncture three of its tires. Meanwhile, Rhodes ran to a nearby fast food restaurant where he used a pay phone to call 911.
Cuevas and De La Vega drove off in their car and soon tracked down plaintiff, who had stopped, wounded, on a nearby public sidewalk. Plaintiff was then stabbed several more times. Three minutes and 58 seconds after Rhodes’s 911 call, police arrived on the scene.
The entire incident, beginning with the fistfight in the parking lot immediately in front of the restaurant and culminating with the second stabbing attack upon plaintiff, consumed approximately seven to eight minutes. During this time, none of defendant’s three employees telephoned the police or any other emergency personnel. Employee Coronado, asked by an investigating officer whether he had called the police, responded that the phone was disabled. Employee Najera eventually made the same statement by deposition. Defendant, the restaurant’s proprietor, echoed that assertion in his own deposition, stating that on the day of the assault the phone did not work and that he had contacted Pacific Bell, which sent someone to fix the problem the next day. Defendant possessed no record of such a repair, however, and in response to plaintiff’s subpoena, Pacific Bell reported that it had no record of any such problem or repair.
The police arrested Cuevas approximately six months after the assault. The record does not indicate the result of any subsequent criminal prosecution.
Plaintiff sued defendant as well as the shopping center landlord, alleging negligence under a premises liability theory, as well as battery. The trial court initially denied motions for summary judgment filed by defendant and the landlord, but upon further review granted those motions a month later. The court found that although plaintiff had offered some evidence of prior incidents of criminal activity on or near the premises (including various fistfights, robberies, and carjackings), much of that evidence was inadmissible. In any event, the trial court concluded, those prior incidents were not
Plaintiff sought reconsideration as to defendant only, and thereafter the trial court reaffirmed summary judgment for defendant and entered judgment accordingly. In doing so the trial court concluded that although there existed a factual question concerning whether defendant’s employee Najera held open the counter gate for Cuevas, that issue was immaterial because the low gate, even if closed or latched, would not have prevented Cuevas from entering the restaurant’s kitchen area. The trial court also rejected plaintiff’s assertion that defendant owed a special-relationship-based duty to assist him during the attack that took place in full view of defendant’s employees. The trial court reasoned that because plaintiff had remained in the parking lot with no intention of entering the restaurant, he “was not a customer” at the time in question and hence no special relationship existed between defendant and plaintiff.
Upon plaintiff’s appeal from the judgment entered in favor of defendant, the Court of Appeal first agreed with the trial court that plaintiff’s proffered evidence of prior criminal conduct on the premises was insufficient to establish “heightened foreseeability” that would have required defendant to undertake preventative measures such as providing security guards to protect his patrons. (See Delgado, supra, 36 Cal.4th at pp. 236-240 [discussing the “heightened foreseeability” rule].) The appellate court also determined that even if defendant’s employee, Najera, opened the counter gate for Cuevas, the evidence showed that he acted out of fear for his own safety, and hence defendant neither owed nor breached any duty to plaintiff in that respect, because a proprietor in this setting “does not have a duty to protect his customers at the expense of his own safety.”
We granted review to consider whether defendant had a duty to aid plaintiff with respect to the ongoing criminal conduct, and that issue is the sole question before us.
III
A
Duty is, of course, a question of law decided by the court. (Delgado, supra, 36 Cal.4th at pp. 237-238; see also Ann M. v. Pacific Plaza Shopping Center (1993)
As we also observed in Delgado, “[c]ourts have found such a special relationship in cases involving the relationship between business proprietors such as shopping centers, restaurants, and bars, and their tenants, patrons, or invitees.” (Delgado, supra,
Finally, as we explained in Delgado, even if a proprietor, such as the bar in that case, has no special-relationship-based duty to provide security guards or other similarly burdensome measures designed to prevent future criminal conduct (which measures are required only upon a showing of “heightened foreseeability”), such a proprietor nevertheless owes a special-relationship-based duty to undertake reasonable and minimally burdensome measures to assist customers or invitees who face danger from imminent or ongoing criminal assaultive conduct occurring upon the premises. In this regard, we noted in Delgado that restaurant proprietors owe a special-relationship-based duty to provide “ ‘assistance [to] their customers who become ill or need medical attention and that they are liable if they fail to act’ ” (Delgado, supra,
B
1
Defendant asserts preliminarily that a showing of “heightened foreseeability” as defined by Ann M., supra,
As we explained in Delgado, plaintiff’s expansive view of our heightened foreseeability doctrine “is facially inconsistent with our decisions in Ann M., supra,
In any event, as the Court of Appeal below observed, foreseeability analysis in a case such as this—involving a proprietor’s duty to respond reasonably to criminal conduct that is imminent or even ongoing in his or her presence—contrasts fundamentally with the type of foreseeability at issue in cases such as Ann M., which involve a proprietor’s duty to take preventative measures to guard against possible future criminal conduct. When, as in Taylor, supra,
2
Defendant asserts that no special relationship existed between himself and plaintiff because plaintiff, who merely accompanied his friends to the restaurant and did not plan to eat, was not a customer at the time of the attack. As our cases disclose, however, a special relationship exists between
More recently, and on facts similar to those in Farrier, supra,
Although plaintiff, who was a longtime paying customer of the restaurant, did not intend to purchase food from defendant’s establishment on the night in question, he was an invitee of the restaurant at that time under the reasoning of the foregoing decisions. Plaintiff arrived with a group of four others and parked immediately in front of the restaurant—an area for which defendant paid extra rent and enjoyed nonexclusive use—and two of plaintiff’s companions entered the restaurant to purchase food. As they returned with their selections, the criminal attack upon plaintiff and his friends commenced in full view of the restaurant’s three employees. As in Farrier, supra,
Our conclusion that plaintiff was an invitee for purposes of the special relationship doctrine is not altered by the circumstance that the fistfight and initial stabbing incidents occurred immediately outside the restaurant’s physical structure. It is well established that a proprietor’s special-relationship-based duty to customers or invitees extends beyond the structure of a premises to areas within the proprietor’s control. We find sufficient control in this case based upon a number of factors: (1) apparently customers and invitees regularly used the parking lot when patronizing defendant’s restaurant; (2) defendant was aware of this use, and posted in its windows advertising that could be read from the parking lot; (3) the area of the parking lot where the altercation and initial stabbing occurred was directly in front of the restaurant’s windows; (4) defendant’s lease authorized the nonexclusive use of the parking area for customers’ and invitees’ cars; and (5) a reasonable inference can be drawn that defendant realized a significant commercial benefit from his customers’ use of the parking lot. (See Southland Corp. v. Superior Court (1988)
4
Plaintiff asserts that because defendant stood in a special relationship with him, defendant owed an obligation to respond to the criminal conduct that was ongoing in his employees’ presence by undertaking such “appropriate action as is reasonable under the circumstances to protect [his] patrons” and invitees. (Kentucky Fried Chicken, supra,
Defendant contests that conclusion, as well as the Court of Appeal’s characterization of the obligation to place a 911 call as being a “minimal safety measure that imposes no undue hardship on a business owner.” Defendant asserts that “California courts, recognizing the difficulty of imposing liability upon a business [proprietor] for the response of his or her employees to exigent circumstances, have generally declined to impose liability upon the [proprietor] for ‘contemporaneous ’ criminal conduct, even where the response of the employee worsens the position of the injured customer or invitee”—and argues that we should decline to recognize a duty on his part to respond reasonably to ongoing criminal conduct. In support, defendant relies primarily upon three appellate court decisions, Young v. Desert View Management Corp. (1969)
In Young, supra,
Each of these cases, in which courts found no liability for employees’ various verbal and physical reactions to crime occurring in their immediate presence, is distinguishable from the present case. The defendant’s employee in Young had no duty to avoid imploring others to procure the license plate number of the getaway car; the defendant’s employee in Forrand had no duty to forbear from yelling “stop him” in reference to a fleeing robber; and the defendant’s employee in Hassoon had no duty to avoid rescuing a victim being beaten outside the store. Similarly, in the present case, had defendant’s employees telephoned 911, defendant would not be liable for injury caused thereby, because defendant had no duty to forbear from calling 911. But, contrary to defendant’s suggestion, none of the foregoing cases prevents recognition of a duty to act reasonably by telephoning 911 as appropriate in order to protect invitees from ongoing crime. Although excitement surrounding an incident certainly is a factor in judging the reasonableness of a defendant’s conduct, it cannot inexorably excuse a defendant from any duty to act. (See Kentucky Fried Chicken, supra,
As the court recognized in Hassoon, supra,
Most of these factors support a finding of duty in this case. The only factor upon which defendant (and amicus curiae on his behalf) relies to argue a contrary conclusion is the italicized one. In this respect, defendant suggests that his employees may have feared that placing a 911 call would endanger
We agree with defendant and his amicus curiae that neither a business proprietor nor his or her employees have an absolute obligation to call 911 in the face of ongoing criminal conduct: in some situations, doing so actually might increase the danger to customers or invitees or might unreasonably place proprietors or their employees in danger. (See Helms v. Church's Fried Chicken, Inc. (1986)
As plaintiff and amicus curiae on his behalf observe, placing a 911 call is a well recognized and generally minimally burdensome method of seeking assistance. Although, as noted above, there may be situations in which the response that is “appropriate and reasonable under the circumstances” includes not making such a call—as when doing so unreasonably would increase the danger to a patron, invitee, employee, or anyone else legally upon the premises—we find that as a general matter a proprietor’s special-relationship-based duty to its patrons or invitees includes an obligation to make such a call, or to take other similar minimal measures. (Kentucky Fried Chicken, supra,
Defendant argues that just as his employees could see out the restaurant’s door and windows, Cuevas and De La Vega likely were able to see inside. The employees, he argues, may have feared that they might compromise their own safety if they put themselves in a position in which they could be observed making a call from the restaurant phone—which, defendant asserts, was “visible on the counter.” Defendant’s specific factual allegation is belied by the record, which shows that the telephone was mounted behind the counter and below counter height—and thus presumably could have been used unobserved from the outside by one crouching below the counter. In any event, although the record contains evidence indicating that the restaurant employees did not attempt to intervene directly by attempting to prevent Cuevas from taking the knife, because they were afraid of him, and although
On the present record, we cannot conclude as a matter of law that defendant’s employees acted reasonably in declining to place a 911 call or undertake any other minimally burdensome measure on plaintiff’s behalf. That disputed issue must be resolved by a jury in connection with its determination of whether defendant breached his duty to plaintiff.
C
Our conclusion that defendant owed plaintiff a legal duty of care of course will not prevent defendant from presenting evidence at trial and arguing to a jury that his employees did not in fact breach any duty owed because they acted reasonably in light of their fear that placing a 911 call would endanger their own safety. Furthermore, even if a jury were to find a breach of duty, it also would be required to consider whether the breach was a proximate cause of plaintiff’s injuries—that is, whether the failure of defendant’s employees to act caused plaintiff to incur greater injury than he would have suffered had defendant’s employees taken appropriate action toward plaintiff as was reasonable under the circumstances.
IV
For the reasons set forth above, the judgment of the Court of Appeal reversing summary judgment in favor of defendant is affirmed.
Baxter, J., Werdegar, J., Chin, J., and Moreno, J., concurred.
Notes
Although we view the facts in the light most favorable to plaintiff, we nevertheless require record evidence supporting those facts. Because plaintiff’s answer brief made numerous factual allegations without citation to the record, we struck that brief and directed the filing of a new brief in compliance with the California Rules of Court, rules 29.1(b)(1) (form and content of briefs) and 14(a)(1)(C) (each brief must support any reference to a matter in the record by a citation to the record), and we also specified in our order that “[a]ny request to augment the record to support the content of the answer brief must comply with the provisions of [California Rules of Court,] rule 12.” Although plaintiff’s subsequently filed replacement brief contained citations, in many respects those citations referred to matters that were not part of the record on appeal. Accordingly, we ordered plaintiff to file a motion to augment the record. Plaintiff so moved without objection, and prior to oral argument we issued an order granting that motion.
Even as augmented (see ante, fh. 1), plaintiff’s appellate presentation is deficient and we therefore must ignore a number of factual assertions made in his answer brief without support in the citations provided by plaintiff. One such unsupported factual assertion is plaintiff’s specific representation, which he repeated at oral argument, that “[a]fter 9:00 p.m., [the restaurant] has exclusive use of [the] parking lot located directly in front of its premises.” The cited authority—paragraphs 18.1 and 18.2 of defendant’s lease—contains no such express or implied “exclusive use” provision relating to any prescribed time period, and our independent review of the record has not disclosed any such evidence.
The Court of Appeal reasoned: “In Kentucky Fried Chicken[, supra,] 14 Cal.4th [814] at pages 828-829, the court held the employees did not owe a duty to comply with a robber’s demands for property to lessen the risk of injury to patrons. The facts here present a situation converse to the situation in Kentucky Fried Chicken, but a similar conclusion applies. Just as there is no duty for a shopkeeper to comply with an intruder’s demands, likewise there is no duty for a shopkeeper to refrain from complying with an intruder’s demands when the shopkeeper is acting out of actual fear for his own safety. Duty involves the balancing of competing concerns—in this instance, the shopkeeper’s interest in protecting his own safety as opposed to the shopkeeper’s duty to protect customers. (See id. at pp. 825-826.)”
Presumably because plaintiffs briefing does not address Farrier, supra,
We disagree and find Wells inapposite. In Wells, a customer (the decedent) was struck and killed by a car on a public road as he walked home from the defendant’s bar. The customer had patronized the bar over a period of a few months, and on four or five prior occasions had asked the bartender to arrange for a ride home from another patron. On two of those prior occasions, the bartender had been able to arrange such a ride. On the evening in question, the customer was served one drink by the bartender but was refused further service, because the customer appeared to be inebriated. The customer, as on prior occasions, asked the bartender to arrange a ride home from another patron, but the bartender was busy and did not immediately respond. Less than one minute later, however, the bartender noticed that the customer had departed, and soon thereafter the customer was struck by a car as he attempted to cross a road. The customer’s blood-alcohol content was between .35 and .38 percent, indicating that he had consumed a substantial quantity of alcohol prior to arriving at the bar. (Wells, supra, 204 Cal.App.3d at pp. 536-537.) In an ensuing wrongful death action, the trial court granted summary judgment for the bar proprietor and the appellate court affirmed, finding no duty
Contrary to the suggestions of amicus curiae on behalf of defendant, plaintiff does not assert that defendant or his employees had a duty to “rescue” plaintiff, and of course no such duty exists. Employees such as counter clerks, waiters, or cooks have, at most, a duty—as “appropriate” and “reasonable under the circumstances”—to warn, to call 911, or to take other similar minimal action. (Kentucky Fried Chicken, supra,
Amicus curiae on defendant’s behalf cites studies published in 1996 and 2000 for the proposition that prosecutors who were surveyed considered gang intimidation of witnesses to be a substantial problem. We do not doubt this general proposition, but it does not establish as a matter of law that defendant’s three employees failed to call 911 at the time in question out of fear for their own personal safety.
There are, for example, indications in the record that the employees may have failed to place such a call because they wished to avoid involvement with the authorities due to their respective immigration status. The police found that none of the employees possessed an official identification document such as a government identity card or driver’s license. Moreover, employee Hernandez later explained that he had not wanted to “get involved,” because he was “living and working here illegally.”
Concurrence Opinion
As I pointed out in my dissenting opinion in Delgado v. Trax Bar & Grill (2005)
Concurrence Opinion
I concur in the judgment based on the limited facts before us. Under the specific circumstances set forth, it could very well be the case that the employees may have been minimally burdened to call 911 in the face of the ongoing criminal conduct.
In Kentucky Fried Chicken, we decided “whether a shopkeeper owes a duty to a patron to comply with an armed robber’s demand for money in order to avoid increasing the risk of harm to patrons.” (Kentucky Fried Chicken, supra,
Moreno, J., concurred.
Of course, our holding does not establish that the employees breached any duty by failing to do so. Indeed, the employees may have had good reasons for not making the call. They may have feared becoming the assailants’ next victims or the possibility of future gang retaliation if they assisted plaintiff.