Delgado v. Trax Bar & Grill

owed by the proprietor of a business. 10 By a vote of nine to three the jury returned a special verdict finding that (i) defendant was negligent; (ii) defendant’s negligence was a substantial factor causing plaintiff’s injuries; and (iii) defendant was 100 percent at fault. The jury awarded economic damages of $81,391.61 (exactly $20,000 more than the amount of the medical expenses that the parties stipulated were incurred by plaintiff as a result of the physical injuries inflicted in the attack) and nothing for noneconomic damages (that is, nothing for pain and suffering). Judgment was entered accordingly. Defendant moved for a new trial, asserting that it owed no duty to protect plaintiff from assault, and that there was insufficient evidence of breach and causation. The trial court denied the motion.

The Court of Appeal below, responding to Mata, supra, 105 Cal.App.4th 1121 , expressly disagreed with the proposition that merely because a bar proprietor employs guards or implements other similar measures, it thereby “assumes” a duty to protect its patrons while they are on the premises. The Court of Appeal below further disagreed with Mata’s conclusion that such an assumed duty renders the issue of foreseeability “irrelevant.” Instead, the Court of Appeal held that “genuine foreseeability” of the “particular criminal conduct” involved—here, an attack by up to five men, followed immediately by an attack by 12 to 20 additional men—was required in order to impose a legal duty of care upon defendant. Proceeding to apply that test, the Court of Appeal concluded that although there was evidence establishing that prior fights had erupted in the Trax bar parking lot, there was no evidence of any previous “coordinated gang attack” by “a large group of assailants lying in wait in the parking lot.” Having found no evidence of any prior similar criminal incident that would have put defendant on notice that such an occurrence reasonably might be anticipated, the Court of Appeal concluded that the attack upon plaintiff was unforeseeable and that defendant owed no duty to employ guards to protect plaintiff.

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

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.

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.

entering the bar, and over the course of the following 60 to 90 minutes, he consumed one more beer. During this time another patron, Jacob Joseph (whom plaintiff did not know), and Joseph’s three or four companions, stared at plaintiff on numerous occasions, and plaintiff stared back at the group. There was no verbal or physical interaction between plaintiff and Joseph or his companions at that time.

Prior to midnight plaintiff had become uncomfortable as a result of the continued staring and decided to leave. Although somewhat inconsistent testimony was presented to the jury concerning the events that immediately ensued leading to plaintiff’s injuries, the jury could have found from the evidence the following: (1) plaintiff’s wife approached Nichols (the interior guard) and expressed concern that “there was going to be a fight”; 2 (2) Nichols himself then observed the hostile stares between plaintiff and Joseph and his companions and concluded that a fight was imminent; 3 (3) Nichols determined that, under the circumstances, it would be best to ask plaintiff and his wife to leave, and Nichols made that request; 4 (4) plaintiff and his wife thereafter left the bar, but Nichols did not escort them to their car in the parking lot; 5 (5) when plaintiff and his wife began to walk through the parking lot toward their car, which was parked approximately 40 feet from the bar door, the guard who earlier had been posted outside no longer was present, but 12 to 20 men were “standing” in the parking lot; (6) this situation was contrary to the bar’s policy of dispersing such gatherings; and (7) Joseph and his companions followed plaintiff into the parking lot and accosted him, and the other persons who were in the parking lot joined with Joseph in the assault. 6

Immediately after the attack, or perhaps during the course of it, the other security guard telephoned 911 to seek police assistance. The police arrested Joseph at the scene, and he subsequently was convicted of felony assault upon a plea of no contest. Plaintiff suffered a fractured skull and a subdural hematoma, was hospitalized for 16 days, and subsequently experienced adverse personality changes as well as chronic headaches.

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

Within the context of the special relationship doctrine, this broad language is potentially misleading. Contrary to the suggestion that “the issue of foreseeability becomes irrelevant” whenever a proprietor has employed a security guard {Mata, supra, 105 Cal.App.4th at p. 1128), the foreseeability of the criminal conduct in question remains relevant to the existence and scope of a proprietor’s duty under the special relationship doctrine. For example, foreseeability remains highly relevant in determining the existence and scope of any duty, discussed, ante, to warn of dangers or to take appropriate measures to protect patrons or invitees from ongoing or imminent criminal conduct.

This aspect of the decision in Hassoon—and the similarly broad position advanced by defendant and amicus curiae on its behalf, as well as by the dissenting opinions in this case—is facially inconsistent with our decisions in Ann M., supra, 6 Cal.4th 666 , and its progeny, all of which, when articulating and applying the heightened foreseeability doctrine, expressly reaffirm the sliding-scale balancing formula articulated prior to and in our decision in Isaacs, supra, 38 Cal.3d 112 , 125, under which we have recognized that, as a general matter, imposition of a high burden requires heightened foreseeability, but a minimal burden may be imposed upon a showing of a lesser degree of foreseeability. (See ante, at p. 237, quoting Ann M., supra, 6 Cal.4th at pp. 678-679, which in turn quoted and followed both Isaacs, supra, 38 Cal.3d 112 , 125, and Gomez v. Ticor, supra, 145 Cal.App.3d 622 , 631; Sharon P., supra, 21 Cal.4th at p. 1195 [same]; Wiener, supra, 32 Cal.4th at pp. 1146-1147 [same; described ante, at fn. 20]; see also Kentucky Fried Chicken, supra, 14 Cal.4th 814 , 819.) 24

Turning to the application of the special relationship doctrine in the case before us, it is undisputed that defendant, a bar proprietor, stood in a special relationship with plaintiff, its patron and invitee, and hence owed a duty to undertake “reasonable steps to secure common areas against foreseeable criminal acts of third parties that [were] likely to occur in the absence of such precautionary measures” (Ann M., supra, 6 Cal.4th 666 , 674) and to take such “appropriate action as is reasonable under the circumstances to protect patrons.” (Kentucky Fried Chicken, supra, 14 Cal.4th 814 , 823; see also id., at p. 819; Taylor, supra, 65 Cal.2d 114 , 121 [proprietor has duty “to take affirmative action to control the wrongful acts of third persons which threaten invitees”] and cases cited; Saatzer, supra, 122 Cal.App.3d at p. 518.)

Within the context of the special relationship doctrine, this broad language is potentially misleading. Contrary to the suggestion that “the issue of foreseeability becomes irrelevant” whenever a proprietor has employed a security guard {Mata, supra, 105 Cal.App.4th at p. 1128), the foreseeability of the criminal conduct in question remains relevant to the existence and scope of a proprietor’s duty under the special relationship doctrine. For example, foreseeability remains highly relevant in determining the existence and scope of any duty, discussed, ante, to warn of dangers or to take appropriate measures to protect patrons or invitees from ongoing or imminent criminal conduct.

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

Mata indicated in expansive terms that by hiring a guard a proprietor necessarily assumes a general duty to protect its patrons. We disagree. First, the scope of any duty assumed depends upon the nature of the undertaking. (See Artiglio, supra, 18 Cal.4th 604 , 614—615.) Merely because a supermarket or other similar enterprise “chooses to have a security program” that includes provision of a roving security guard does not signify that the proprietor has assumed a duty to protect invitees from third party violence. (Brown v. Schnuck Markets, Inc. (Mo.Ct.App. 1998) 973 S.W.2d

530 , 535.) A store that hires a “security officer” to guard its interior “cash office” for three hours each day does not assume a duty to protect a customer who is injured in the store’s exterior parking lot by the criminal act of a third party. (See Posecai v. Wal-Mart Stores, Inc. (La. 1999) 752 So.2d 762 , 764, 769 & fn. 7.) Second, as noted, ante, a defendant’s undertaking will support the finding of a duty to another only if (a) the defendant’s action increased the risk of harm to another, or (b) the other person reasonably relied upon the undertaking to his or her detriment. (Williams, supra, 34 Cal.3d 18 , 23; Weissich v. County of Marin, supra, 224 Cal.App.3d 1069 , 1077.) The court in Mata did not consider whether the imposition of liability in that case was consistent with these limitations.

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

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

Having considered the Rowland factors (Rowland v. Christian, supra, 69 Cal.2d 108 , 113, quoted ante, at fn. 15) as they apply to these circumstances, we conclude, first, that under the circumstances it was foreseeable that an

assault would occur absent separation of Joseph and his group from plaintiff. The remaining Rowland factors similarly support a determination that defendant had a special-relationship-based duty to respond to the unfolding events by taking reasonable, relatively simple, and minimally burdensome steps in order to address the imminent danger that Nichols perceived, and, specifically, in order to accomplish the separation that he had determined was necessary. Indeed, defense counsel essentially conceded this general point during oral argument before this court—responding with the words “Certainly. Certainly” to a question whether, in light of the circumstances then known to Nichols, there was “some minimal duty” on the part of defendant. 25

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). 26 And, in the face of the continuing threat of a five-on-one altercation if Nichols were unable to dissuade Joseph and his

companions from following plaintiff outside, defendant also might have confirmed that the outside guard was at his post in the parking lot and was available, as necessary, to help maintain the desired separation between plaintiff and Joseph and his companions. (See Taylor, supra, 65 Cal.2d 114 , 123-125 [duty of bar proprietor to respond to imminent criminal conduct]; Kentucky Fried Chicken, supra, 14 Cal.4th 814 , 823 [restaurant proprietor has a duty to respond to ongoing conduct by taking “such appropriate action as is reasonable under the circumstances to protect patrons”]; Saatzer, supra, 122 Cal.App.3d 512 , 518 [a bar proprietor’s duty to protect patrons “ ‘arises . . . when ... the tavern keeper had been warned of danger from an obstreperous patron and failed to take suitable measures for the protection of others’ ”].) 27

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

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 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) 36 Cal.4th 260 -279, 280 [30 Ca.Rptr.3d 173, 113 P.3d 1182 ] (conc. opn. of Brown, J.)), I do not believe our decision in Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal.4th 814 [ 59 Cal.Rptr.2d 756 , 927 P.2d 1260 ] imposed a duty on business owners based on ongoing criminal conduct.

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

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.