Cohen v. Southland Corp.

• Decision Date: 14 June 1984
• Citation: 203 Cal.Rptr. 572,157 Cal.App.3d 130
• Parties: Richard Lee COHEN, Plaintiff and Appellant, v. SOUTHLAND CORPORATION, et al., Defendants and Respondents. D000734. Civ. 28677.
• Court: California Court of Appeals Court of Appeals

Page 572

203 Cal.Rptr. 572

157 Cal.App.3d 130

Richard Lee COHEN, Plaintiff and Appellant, v. SOUTHLAND CORPORATION, et al., Defendants and Respondents.

D000734.

Civ. 28677.

Court of Appeal, Fourth District, Division 1, California.

June 14, 1984.

O'Dorisio, Wedell & Wade, Jeffrey P. Wade, San Diego, for plaintiff and appellant.

Stutz, Rentto, Gallagher & Artiano, Robert E. Gallagher, Jr., San Diego, for defendants and respondents.

STANIFORTH, Acting Presiding Justice.

Plaintiff Richard Lee Cohen questions by this appeal the correctness of a summary judgment entered in favor of store owner Southland Corporation, its Linda Vista Road 7-11 store franchisee, James R. Simmons and its employee, Timothy G. Wolfe, all defendants in this personal injury action. The dispositive issues are (1) whether under the evidence offered in the motion, foreseeability remained a question of fact for a jury; and (2) whether defendants established as a matter of law they have fulfilled any duty of care owed. (Bigbee v. Pacific Tel & Tel. Co., 34 Cal.3d 49, 52, 192 Cal.Rptr. 857, 665 P.2d 947.)

FACTS

In the early morning hours of May 14, 1978, Cohen drove into the parking lot of the Linda Vista Road 7-Eleven store. He intended to buy a sandwich. While still in his car, Cohen was approached by a man displaying a revolver. He stated he intended to rob the store, take Cohen hostage and use Cohen's car as the getaway vehicle. The man proceeded into the store, with Cohen following. The clerk on duty that night was defendant Wolfe. Once inside, the robber approached Wolfe at the counter and displayed the gun. Cohen then seized the robber from behind. In the ensuing struggle the man shot Cohen in the stomach. Wolfe, observing the struggle, retreated to the back office, barricaded its door and did not emerge until the police arrived. The assailant escaped and remains at large.

TRIAL COURT PROCEEDINGS

Cohen filed a negligence action against Southland, Simmons and Wolfe. Southland's demurrer to Cohen's complaint was sustained with leave to amend. The amended complaint alleged defendants negligently failed to protect store patrons from assault or other threatening behavior of would-be robbers. The complaint also charged Wolfe negligently and carelessly failed to aid Cohen after Cohen was shot.

Defendants moved for summary judgment. In support of the motion, Southland offered the declaration of Edward Perkins, assistant director of 7-Eleven store security. Perkins asserted--based on his review of Southland's files of all criminal incidents in franchise stores--there was a single criminal incident at the Linda Vista Road store between February 1, 1972, and May 14, 1978. This was a non-injury armed robbery which occurred December 3, 1976. Perkins also detailed Southland's policy of offering an extensive security program to franchisees, including continuing education in robbery prevention technique and methods for dealing with in-progress robberies. He suggested 7-Eleven stores regularly use security devices such as strong boxes for excess cash, warning labels on store windows advising of minimal cash on hand, and a balanced lighting system allowing Perkins mentioned Simmons had installed a video camera and recording device to monitor cash register sales; he did not suggest Simmons had participated in Southland's extensive security training program, nor did he state the Linda Vista Road 7-Eleven store used the customary security devices he detailed.

store clerks to observe outside activities and persons outside to view activities within. Additionally, the stores customarily stack merchandise to a level of not more than four and one-half feet to allow unobstructed vision of the store's interior and parking lot.

Declarations of defendants Simmons and Wolfe also were the basis for the motion. Simmons claimed from the date of his ownership of the Linda Vista Road store franchise, July 1976 to May 14, 1978, there had been a single non-injury criminal incident--"a situation where a man demanded and received the money from the cash register"--not involving a weapon. He stated at the time of the incident the interior of the store and the parking lot were equipped with lights, and store had a video surveillance system and a window sign indicating a limited amount of cash was kept on hand at night. He also noted a police substation is located one-half mile from the store. During the late night hours the store is visited by police on an average of once an hour on an irregularly timed basis.

Wolfe stated the video-surveillance system was in operation the night of the incident and the interior of the store and the parking lot were illuminated. He also stated he did not notice the robber had a gun until the robber stepped to the store counter. At the same moment Cohen grabbed the robber from behind. Wolfe then related what happened next:

"The plaintiff and the suspect struggled, knocking the cash register to the ground. At that point, I stepped back to get out of the way of the cash register and after taking two or three steps backward, I heard a shot. I did not see the gun go off. After hearing the shot, I ran to the back room of the store and locked the door. The back room had a television monitor that was linked to the camera device which was in the area of the cash register. On the television monitor, I could see the cash register area and a portion of the aisles of the store. I feared that the gunman was going to come into the back room so I barricaded the door with a filing cabinet. After barricading the door, I looked back on the television monitor and I did not see the suspect. I did not know whether or not the suspect was still in the store because the camera did not view all of the interior of the store, but rather only the area around the cash register and front door. I therefore did not use the telephone that was in the back room for fear the suspect would hear me. I continued to look at the television monitor and saw the plaintiff get up, walk behind the counter, and then walk toward the front door. A car drove up and then drove away. I then observed another customer walk into the store, and walk behind the counter and use the telephone. Approximately three to five minutes after the shooting, I observed on the television monitor that the police arrived. I picked up the telephone extension in the back room and talked with the police dispatcher who then informed the investigating police officer that I was in the back room. At that point I opened up the door and talked with the police. During the entire incident, up the point where I saw the police arrive, I did not know where the suspect was and I feared for my safety."

According to Wolfe, throughout the incident the robber said nothing.

In opposition to defendants' summary judgment motion Cohen charged in his declaration the Linda Vista Road store was customarily "not very well lit" and "the only light there was on May 14, 1978 at night emanated from the inside of the store." Cohen recalled the inside lights lit only the walk in front of the store; the 7-Eleven sign on the store's roof and the 7-Eleven sign by the street were both Cohen's counsel's investigator by declaration related in 1975 Southland experienced in excess of one robbery per store per year nationwide; in its Pacific Division (which includes San Diego), the number of robberies exceeded the corporate average. Clerk Wolfe's deposition admitted he received no training in robbery or violence prevention techniques upon being hired as the sole clerk for the 10:30 p.m. to 6:30 a.m. shift, beyond the admonition to give a robber anything he or she wanted. Jerry Lowery, Southland's head security officer, stated corporate store employees are required to participate in Southland's security training program but franchise store employees are not; Southland had no means of monitoring franchisee participation.

                turned off.  Additionally, there were "no lights on the side of the building that were lit, nor was there any light coming from the Exxon station (which was closed) to the east or the Mexican Restaurant (which was closed) to the west."   Cohen also said the store's manager had informed him prior to the shooting--during an interview for a graveyard shift opening for which Cohen had applied--the store was periodically robbed
                

Finally, Cohen relied on a 1975 study funded in part by Southland which demonstrated 7-Eleven store robberies could be significantly reduced (a 30 percent reduction was achieved under the study's controlled conditions) by prevention procedures such as the strategic placement of signs announcing a low amount of cash-on-hand in the store, improved lighting in the parking lot and the training of store owners, managers and clerks in a series of robbery prevention procedures and violence prevention techniques.

The trial court granted summary judgment for defendants. Cohen appeals.

DISCUSSION

I

On a summary judgment motion, "[t]he moving party bears the burden of furnishing supporting documents that establish the claims of the adverse party are entirely without merit on any legal theory." (Lipson v. Superior Court, 31 Cal.3d 362, 374, 182 Cal.Rptr. 629, 644 P.2d 822.) Summary judgment should be granted only where "there is no triable issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." (Code Civ.Proc., § 437c, subd. (c).) " 'The affidavits of the moving party are strictly construed and those of his [or her] opponent liberally construed, and doubts as to propriety of granting the motion should be resolved in favor of the party opposing the motion.' And, conflicts in affidavits are to be resolved in favor of the nonmoving party." (Albertini v. Schaefer, 97 Cal.App.3d 822, 831, 159 Cal.Rptr. 98; citations omitted. See also Slobojan v. Western Travelers Life Ins. Co., 70 Cal.2d 432, 436-439, 74 Cal.Rptr. 895, 450 P.2d 271.) With these standards for granting...