January 30, 2025

Carmichael et al. v. Cafe Sevilla of Riverside, Inc. et al. (Jan. 7, 2025, G063589) __ Cal.App.4th __ (2025 WL 299642)

Under the negligence per se doctrine codified in California Evidence Code section 669, subdivision (a), “negligence is presumed if the plaintiff establishes four elements: (1) the defendant violated a statute, ordinance, or regulation; (2) the violation proximately caused death or injury to person or property; (3) the death or injury resulted from an occurrence the nature of which the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.” (Taulbee v. EJ Distribution Corp. (2019) 35 Cal.App.5th 590, 596.)

After a shooting occurred at a rap concert hosted by the owner and operators of a nightclub, concert attendees filed suit, alleging the owner and operators had violated the terms of their conditional use permit and were liable under theories of negligence per se and strict liability for engaging in an ultrahazardous activity. The trial court granted  summary adjudication on both theories, finding that the concert attendees “failed to establish that a conditional use permit is a statute, ordinance or regulation” for purposes of negligence per se and that there was no basis for a strict liability claim as “ ‘hosting a nightclub event . . . does not constitute an ultrahazardous activity.’ ”

The Court of Appeal affirmed, finding that plaintiffs failed to meet their burden to show that a conditional use permit qualifies as a statute, ordinance, or regulation–a requisite element of negligence per se. The court also held that because the conditional use permit was intended to protect the general public from disturbance by the nightclub, the concert attendees’ injuries were “not part of the ‘precise nature’ of harm the permit was designed to protect.” For this additional reason, plaintiffs’ negligence per se claims lacked merit.

As to plaintiffs’ strict liability claim based on ultrahazardous activity, the Court of Appeal held that “form[s] of creative expression” “are not ultrahazardous activities,” particularly where there is no inherent danger and any potential danger can be “avoided.” Thus, merely hosting a concert cannot subject a party to strict liability.