News
Personal Injury & Torts
Aug. 1, 2002
Trend Against Liability for Third-Party Attacks Continues
Focus Column - By Michael Paul Thomas - Increasingly over the past decade, lawsuits seeking to hold property owners liable for third-party criminal acts occurring on their premises have come into seeming judicial "disfavor."
Focus Column
By Michael Paul Thomas
Increasingly over the past decade, lawsuits seeking to hold property owners liable for third-party criminal acts occurring on their premises have come into seeming judicial "disfavor."
This trend appears to be precipitated by two main factors: underlying judicial concern about imposing "unrealistic financial burdens" on property owners (see Saelzler v. Advanced Group 400, 25 Cal.4th 763 (2001)); and a greater judicial willingness to resolve issues by way of summary judgment (see generally Glenn Koppel, "The California Supreme Court Speaks Out On Summary Judgment In Its Own 'Trilogy' Of Decisions: Has The Celotex Era Arrived?" 42 Santa Clara L. Rev. 483 (2002)).
The recent decision in Lopez v. Baca, 98 Cal.App.4th 1008 (2002), is illustrative. In Lopez, the owner of a nightclub had hired women to solicit male patrons to buy drinks for them at an elevated price and paid the women a "commission" for each sale. One of these women approached Jose Lopez at the club and asked him to buy her a beer. When Lopez refused to pay the elevated price, the woman called him a derogatory name and returned to her male companion. Shortly thereafter, the woman's male companion left the club, returned with a gun and shot Lopez in the head.
Although the club employed a security guard to check customers for weapons on Friday, Saturday and Sunday nights, it did not do so on weeknights. Lopez was shot on a Tuesday night, when no security guard was on duty.
Lopez sued the club's owner, Consuelo Baca, for negligence, alleging that she unreasonably failed to provide security guards to protect patrons from violent attacks. Baca brought a motion for summary judgment, asserting that she had no duty to hire security guards on weeknights because violent crime at the club was unforeseeable, that she was unaware of any other shootings or "altercations" occurring at the club before this incident, and that no causal connection existed between the lack of security guards and Lopez's injuries.
Lopez opposed the motion, asserting that violent attacks at the club were rampant. Among other documents that Lopez included with his opposition was a computer printout from the police showing reported crimes and arrests at the club between 1995 and 2000, including two assaults with a deadly weapon and five robberies.
Baca asserted 66 one- or two-word objections to all of these documents. The trial court sustained Baca's objections to all of Lopez's evidence and granted summary judgment. The court concluded that Baca had no duty to provide security guards to protect Lopez because there was no admissible evidence that the shooting was foreseeable, and, in any event, there was no causal connection between the absence of a security guard and Lopez's injuries.
Lopez filed a motion for reconsideration with copies of police reports describing some of the arrests that took place at the club. He also submitted a declaration from a "security expert" who noted that 60 percent of all the reported crimes at the club took place during the week and said that the lack of a security guard was a "contributing factor" in the shooting. The trial court denied the motion and entered judgment in favor of Baca. Lopez appealed from the judgment.
In a 2-1 decision, the appellate court affirmed. The court began its analysis by noting that, because the burden of employing private guards to protect against third-party criminal conduct is great, 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, and this high degree of foreseeability rarely, if ever, can be proved in the absence of prior similar incidents of violent crime on the premises.
That being said, the court held that Lopez had "abandoned" this theory on appeal because his brief affirmatively stated that his case was not a "prior similar incidents" case, but rather a case based on the notion that "the nightclub itself affirmatively created a dangerous condition conducive to violence resulting from the illegal practice of paying employees to solicit customers to buy drinks." Furthermore, because of perceived "waiver," the court found no reason to address the trial court's exclusion of all of his evidence of purported "prior similar incidents."
Next, the court swiftly dismissed Lopez's argument that the nightclub was an "inherently dangerous" enterprise. Relying on the California Supreme Court's discussion in Sharon P. Arman Ltd., 21 Cal.4th 1181 (1999), the court stated that the "inherently dangerous" characterization was to be used sparingly, if at all, so that businesses did not fall victim to a per se rule that would lead to imposition of liability even in the absence of genuine foreseeability.
Thus, according to the Lopez court, "[t]he designation of an inherently dangerous property, if such a designation still exists after Sharon P., is reserved for properties that regardless of their individual physical characteristics and locations are by their nature, prone to violence." The court found that Lopez failed to cite any evidence or authority from which it could "confidently conclude" that bars or nightclubs, even those illegally paying people to solicit the sale of alcoholic beverages, are by their nature prone to violent criminal attacks and are thus "inherently dangerous."
The court dealt swiftly as well with what it characterized as Lopez's argument that, "by hiring security guards on the weekends, the club assumed a duty to provide security at all times and for all purposes irrespective of whether she knew or had reason to know violent attacks would occur on the premises."
The court acknowledged that, "[i]f Baca had employed a security guard, she would have assumed a duty and could be held liable if the guard acted unreasonably." Yet because the club did not employ a guard on the night of the shooting, the court found no voluntary assumption of duty: "[T]he assumption of a duty to do 'A' (that is, employ security on the weekends) necessarily [does not?] impose[s] a duty to do 'B' (employ security during the week) as well."
Furthermore, to the extent that Lopez relied on the club's hiring of security guards on the weekends to establish that the club was aware of the potential for violence on the premises, the court held that "at most this evidence suggests she had reason to anticipate that such acts might occur on the weekends, not during the week."
Thus, since Lopez had "waived" the trial court's evidentiary rulings and abandoned his claim of "heightened foreseeability" based on the excluded evidence of prior incidents, Lopez's claim that the club owed a duty to protect him from attacks failed as a matter of law.
Finally, the court found Lopez's negligence per se argument easily resolvable. Not only had Lopez not alleged negligence per se in his complaint, but the "morals statute" aimed at prohibiting alcohol sellers from encouraging the purchase of alcohol through employees who receive commissions for each sale is not designed to prevent assault with a deadly weapon - and, therefore, negligence per se could not apply.
Because the court concluded that the clubs had no duty to provide security guards to protect Lopez, it found no need to reach Lopez's causation arguments.
In dissent, Justice Earl Johnson found the majority opinion to be "a miscarriage of justice." As to the majority's assertion that there had been a "waiver" on the evidentiary issues, Johnson found it "unrealistic" on appeal to expect Lopez to reconstruct the possible basis for all 66 of the defendant's one- or two-word objections, then discuss why they were not valid, often for multiple reasons.
Johnson further averred "the strongest disapproval" of a situation that he believed occurred in this case: A party lodges a barrage of objections, with no supporting factual and legal argument, and the trial court grants those objections en masse with no explanation for its decisions.
Similarly, Johnson found no "waiver" of the "prior similar incidents" argument and stated that, even if there was such an inadvertent waiver, the appellate court nonetheless should consider the issue under its duty to conduct de novo review of summary judgments.
Implying that the majority opinion was result-based, he observed that, "[i]n the past 20 years, I know of literally scores of cases we have decided based on issues not raised in the briefs." In short, Johnson found that the evidence of prior violent criminal activity was admissible and that such evidence created triable issues as to notice and causation.
The Lopez decision not only raises the fundamental question of an appellate court's role in reviewing a grant of summary judgment but also serves as a good object lesson about judicial attitudes and approaches to lawsuits seeking to hold property owners liable for third-party criminal acts.
Indeed, while historically courts were exceedingly cautious about granting or upholding on appeal summary judgment in such cases, more recently, property owners have a relatively good chance of prevailing at both the trial and appellate levels on such motions.
Michael Paul Thomas practices law in Newport Beach. He is co-author of the six-volume "California Civil Practice: Procedure" (West 2002) and co-author of "California Premises Liability" (West 2002).
By Michael Paul Thomas
Increasingly over the past decade, lawsuits seeking to hold property owners liable for third-party criminal acts occurring on their premises have come into seeming judicial "disfavor."
This trend appears to be precipitated by two main factors: underlying judicial concern about imposing "unrealistic financial burdens" on property owners (see Saelzler v. Advanced Group 400, 25 Cal.4th 763 (2001)); and a greater judicial willingness to resolve issues by way of summary judgment (see generally Glenn Koppel, "The California Supreme Court Speaks Out On Summary Judgment In Its Own 'Trilogy' Of Decisions: Has The Celotex Era Arrived?" 42 Santa Clara L. Rev. 483 (2002)).
The recent decision in Lopez v. Baca, 98 Cal.App.4th 1008 (2002), is illustrative. In Lopez, the owner of a nightclub had hired women to solicit male patrons to buy drinks for them at an elevated price and paid the women a "commission" for each sale. One of these women approached Jose Lopez at the club and asked him to buy her a beer. When Lopez refused to pay the elevated price, the woman called him a derogatory name and returned to her male companion. Shortly thereafter, the woman's male companion left the club, returned with a gun and shot Lopez in the head.
Although the club employed a security guard to check customers for weapons on Friday, Saturday and Sunday nights, it did not do so on weeknights. Lopez was shot on a Tuesday night, when no security guard was on duty.
Lopez sued the club's owner, Consuelo Baca, for negligence, alleging that she unreasonably failed to provide security guards to protect patrons from violent attacks. Baca brought a motion for summary judgment, asserting that she had no duty to hire security guards on weeknights because violent crime at the club was unforeseeable, that she was unaware of any other shootings or "altercations" occurring at the club before this incident, and that no causal connection existed between the lack of security guards and Lopez's injuries.
Lopez opposed the motion, asserting that violent attacks at the club were rampant. Among other documents that Lopez included with his opposition was a computer printout from the police showing reported crimes and arrests at the club between 1995 and 2000, including two assaults with a deadly weapon and five robberies.
Baca asserted 66 one- or two-word objections to all of these documents. The trial court sustained Baca's objections to all of Lopez's evidence and granted summary judgment. The court concluded that Baca had no duty to provide security guards to protect Lopez because there was no admissible evidence that the shooting was foreseeable, and, in any event, there was no causal connection between the absence of a security guard and Lopez's injuries.
Lopez filed a motion for reconsideration with copies of police reports describing some of the arrests that took place at the club. He also submitted a declaration from a "security expert" who noted that 60 percent of all the reported crimes at the club took place during the week and said that the lack of a security guard was a "contributing factor" in the shooting. The trial court denied the motion and entered judgment in favor of Baca. Lopez appealed from the judgment.
In a 2-1 decision, the appellate court affirmed. The court began its analysis by noting that, because the burden of employing private guards to protect against third-party criminal conduct is great, 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, and this high degree of foreseeability rarely, if ever, can be proved in the absence of prior similar incidents of violent crime on the premises.
That being said, the court held that Lopez had "abandoned" this theory on appeal because his brief affirmatively stated that his case was not a "prior similar incidents" case, but rather a case based on the notion that "the nightclub itself affirmatively created a dangerous condition conducive to violence resulting from the illegal practice of paying employees to solicit customers to buy drinks." Furthermore, because of perceived "waiver," the court found no reason to address the trial court's exclusion of all of his evidence of purported "prior similar incidents."
Next, the court swiftly dismissed Lopez's argument that the nightclub was an "inherently dangerous" enterprise. Relying on the California Supreme Court's discussion in Sharon P. Arman Ltd., 21 Cal.4th 1181 (1999), the court stated that the "inherently dangerous" characterization was to be used sparingly, if at all, so that businesses did not fall victim to a per se rule that would lead to imposition of liability even in the absence of genuine foreseeability.
Thus, according to the Lopez court, "[t]he designation of an inherently dangerous property, if such a designation still exists after Sharon P., is reserved for properties that regardless of their individual physical characteristics and locations are by their nature, prone to violence." The court found that Lopez failed to cite any evidence or authority from which it could "confidently conclude" that bars or nightclubs, even those illegally paying people to solicit the sale of alcoholic beverages, are by their nature prone to violent criminal attacks and are thus "inherently dangerous."
The court dealt swiftly as well with what it characterized as Lopez's argument that, "by hiring security guards on the weekends, the club assumed a duty to provide security at all times and for all purposes irrespective of whether she knew or had reason to know violent attacks would occur on the premises."
The court acknowledged that, "[i]f Baca had employed a security guard, she would have assumed a duty and could be held liable if the guard acted unreasonably." Yet because the club did not employ a guard on the night of the shooting, the court found no voluntary assumption of duty: "[T]he assumption of a duty to do 'A' (that is, employ security on the weekends) necessarily [does not?] impose[s] a duty to do 'B' (employ security during the week) as well."
Furthermore, to the extent that Lopez relied on the club's hiring of security guards on the weekends to establish that the club was aware of the potential for violence on the premises, the court held that "at most this evidence suggests she had reason to anticipate that such acts might occur on the weekends, not during the week."
Thus, since Lopez had "waived" the trial court's evidentiary rulings and abandoned his claim of "heightened foreseeability" based on the excluded evidence of prior incidents, Lopez's claim that the club owed a duty to protect him from attacks failed as a matter of law.
Finally, the court found Lopez's negligence per se argument easily resolvable. Not only had Lopez not alleged negligence per se in his complaint, but the "morals statute" aimed at prohibiting alcohol sellers from encouraging the purchase of alcohol through employees who receive commissions for each sale is not designed to prevent assault with a deadly weapon - and, therefore, negligence per se could not apply.
Because the court concluded that the clubs had no duty to provide security guards to protect Lopez, it found no need to reach Lopez's causation arguments.
In dissent, Justice Earl Johnson found the majority opinion to be "a miscarriage of justice." As to the majority's assertion that there had been a "waiver" on the evidentiary issues, Johnson found it "unrealistic" on appeal to expect Lopez to reconstruct the possible basis for all 66 of the defendant's one- or two-word objections, then discuss why they were not valid, often for multiple reasons.
Johnson further averred "the strongest disapproval" of a situation that he believed occurred in this case: A party lodges a barrage of objections, with no supporting factual and legal argument, and the trial court grants those objections en masse with no explanation for its decisions.
Similarly, Johnson found no "waiver" of the "prior similar incidents" argument and stated that, even if there was such an inadvertent waiver, the appellate court nonetheless should consider the issue under its duty to conduct de novo review of summary judgments.
Implying that the majority opinion was result-based, he observed that, "[i]n the past 20 years, I know of literally scores of cases we have decided based on issues not raised in the briefs." In short, Johnson found that the evidence of prior violent criminal activity was admissible and that such evidence created triable issues as to notice and causation.
The Lopez decision not only raises the fundamental question of an appellate court's role in reviewing a grant of summary judgment but also serves as a good object lesson about judicial attitudes and approaches to lawsuits seeking to hold property owners liable for third-party criminal acts.
Indeed, while historically courts were exceedingly cautious about granting or upholding on appeal summary judgment in such cases, more recently, property owners have a relatively good chance of prevailing at both the trial and appellate levels on such motions.
Michael Paul Thomas practices law in Newport Beach. He is co-author of the six-volume "California Civil Practice: Procedure" (West 2002) and co-author of "California Premises Liability" (West 2002).
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