California Supreme Court Decides Two Important Premises Liability Cases Involving Third Party Crimes

On June 30, 2005, the California Supreme Court issued two opinions concerning the liability of premises owners for third party crimes, Delgado v. Trax Bar & Grill, No. S117287 and Morris v. De La Torre, No. S119750. In Delgado, the Court retreats from its "prior similar incidents" rule in favor of a balancing approach. In Morris, the Court affirms that a business proprietor has a duty to act reasonably in response to an ongoing criminal attack.

Delgado v. Trax Bar & Grill

The plaintiff in Delgado was attacked by a gang when he exited a bar. Prior to the assault, plaintiff and some of the assailants had been staring at each other inside the bar. There was evidence plaintiff’s wife expressed concern to one of the security guards that there was going to be a fight. The security guard then asked plaintiff and his wife to leave the bar in an effort to remove any threat of a fight, but did not escort them to their car in the parking lot. At the time plaintiff left, the security guard who had been posted outside the bar door was no longer present. The assailants followed plaintiff into the parking lot where 12 to 20 additional gang members who were loitering joined in the assault on plaintiff.

The Court of Appeal reversed a judgment in favor of plaintiff. The Court of Appeal concluded that, because nothing remotely similar to this coordinated gang attack had ever happened at this bar before, the bar owed no duty to prevent an unforeseeable attack.

The Supreme Court reversed the Court of Appeal in a 5-2 opinion authored by Chief Justice George. The Court began its analysis by noting that the special relationship between business proprietors and their patrons is an exception to the general rule that there is no duty to protect others from the criminal acts of third parties. The Court then discussed the series of cases holding that this special relationship-based duty includes the duty to provide security guards only when a “heightened” foreseeability of third party crime exists, as shown by prior similar incidents or other indications. The Court rejected defendant’s argument that heightened foreseeability, i.e., prior similar acts, is always required to impose a duty on a restaurant owner to act to try to prevent the criminal conduct of third parties. The Court instead reaffirmed the “sliding-scale balancing formula” articulated in Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, and cases prior thereto, which recognize that, “imposition of a high burden requires heightened foreseeability, but a minimal burden may be imposed upon a showing of a lesser degree of foreseeability.” (Opn. p. 21.) Accordingly, whether a showing of heightened foreseeability, i.e., prior similar acts, is required depends on the extent of the burden being imposed on the defendant.

Applying the sliding-scale approach to the facts in this case, the Court agreed with the Court of Appeal below that plaintiff produced insufficient evidence of heightened foreseeability in the form of prior similar acts to impose an obligation to provide additional or even any security guards. However, the absence of heightened foreseeability “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.” (Opn. p. 23.) The Court found that because defendant had actual notice of an impending attack, its special-relationship duty included the obligation to take minimally burdensome steps to protect plaintiff, such as dissuading plaintiff’s attackers from following plaintiff outside the bar or confirming the outside guard was at his post in the parking lot. The Court remanded the case to the Court of Appeal to address the sufficiency of the evidence to support the jury’s determinations of breach of duty and causation.

A dissenting opinion authored by Justice Kennard criticizes the majority for announcing a different rule where the existence of a business owner’s duty is determined by balancing the degree of foreseeability of harm against the burden imposed on the business owner, and asserts that “the majority’s approach is perilously close to imposing liability that has no limits.” (Dis. opn. p. 7.)

Morris v. De La Torre

In Morris, a fistfight broke out in the parking lot of a small shopping center where defendant’s restaurant, Victoria’s Mexican Food, was located. During the fight, a gang member ran into the restaurant, seized a knife from the kitchen, and used the knife to repeatedly stab the plaintiff. The restaurant employees watched the unfolding altercation from inside the restaurant. The entire incident, beginning with the fistfight, lasted seven to eight minutes. At no time did the restaurant employees call the police or summon help. The trial court granted summary judgment in favor of the restaurant owner, finding the incident was not sufficiently foreseeable to impose a duty of care. The Court of Appeal reversed, holding that while the criminal attack on plaintiff was not sufficiently foreseeable to impose a duty on the restaurant owner to prevent the crime, an issue of fact existed as to whether the restaurant’s employees breached a duty to take reasonable steps in response to criminal conduct occurring on its premises by failing to call 911 or otherwise summon aid.

In an opinion by Chief Justice George, the Supreme Court affirmed the judgment of the Court of Appeal. Relying on its decision in Delgado, the Court held that even when a premises owner does not owe a duty to provide security guards or other similarly burdensome measures, the owner nonetheless owes a duty based on the special relationship between restaurant proprietors and their patrons or invitees to undertake reasonable and minimally burdensome measures to protect patrons or invitees from imminent danger or ongoing criminal conduct occurring on the premises.

The Court emphasized the difference between taking preventative measures to guard against possible future crime (as was the issue in cases such as Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666) and the duty to respond to imminent or ongoing criminal conduct. The Court further rejected defendant’s argument that no special relationship existed because plaintiff, who remained in the parking lot and did not intend to purchase any food that night, and was not a customer at the time of the attack. The Court held plaintiff was an invitee for purposes of the special relationship doctrine, and the owner’s duty to customers or invitees extends beyond the structure of the premises to areas within the owner’s control, such as the parking lot in this case.

The Court agreed with defendant that a restaurant’s employees do not have “an absolute obligation to call 911 in the face of ongoing criminal conduct,” recognizing that in some instances, calling 911 may increase the danger to themselves or others, but that no such evidence was presented in this case. Accordingly, the Court found a triable issue of fact exists as to whether the restaurant breached its duty of care when its employees failed to call 911.

The summaries above only touch on a few aspects of today’s opinions. The full text of the opinions can be found here:

Delgado: http://www.courtinfo.ca.gov/opinions/documents/S117287.PDF

Morris: http://www.courtinfo.ca.gov/opinions/documents/S119750.PDF

For more information, call Wendy Albers at (818) 995-0800 or send an e-mail to her at walbers@horvitzlevy.com.

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