Delgado v. Trax Bar & Grill

Citation113 P.3d 1159,36 Cal.4th 224,30 Cal.Rptr.3d 145
Decision Date30 June 2005
Docket NumberNo. S117287.,S117287.
CourtUnited States State Supreme Court (California)
PartiesMichael Wollery DELGADO, Plaintiff and Appellant, v. TRAX BAR & GRILL, Defendant and Appellant.

Law Offices of Eric G. Young, Eric G. Young, Santa Rosa; Ringhoff & Toledo, Stephen J. Ringhoff, Modesto, Theressa Y. Toledo; Law Offices of Frank J. Christy, Jr., and Frank J. Christy, Jr., Petaluma, for Plaintiff and Appellant.

Hollingshead, Nardine, Bennett & Smith, Hollingshead, Bennett & Smith, David H. Bennett; Fatouhi .Epps .Hilger .Gilroy and Shahab E. Fotouhi, Oakland, for Defendant and Appellant.

Debra J. La Fetra for Pacific Legal Foundation as Amicus Curiae on behalf of Defendant and Appellant.

GEORGE, C.J.

It is established that business proprietors such as shopping centers, restaurants, and bars owe a duty to their patrons to maintain their premises in a reasonably safe condition, and that this duty includes an obligation to undertake "reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures." (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674, 25 Cal.Rptr.2d 137, 863 P.2d 207 (Ann M.); see also Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 121, 52 Cal.Rptr. 561, 416 P.2d 793, and cases cited (Taylor).)

We granted review to address a related issue that has divided the Courts of Appeal. In Mata v. Mata (2003) 105 Cal. App.4th 1121, 130 Cal.Rptr.2d 141 (Mata), the appellate court, reversing an order granting summary judgment, held that when a bar proprietor voluntarily employs a guard on its premises, the proprietor has "assumed" a "duty to protect" its patrons from criminal assault "and therefore the issue of foreseeability becomes irrelevant." (Id., at p. 1128, 130 Cal.Rptr.2d 141, italics added.) In the present case, which similarly concerns a bar at which guards (or "bouncers") were employed, the appellate court expressly disagreed with Mata, finding no duty owed and reversing a jury verdict for plaintiff, a bar patron who was injured in a criminal attack by another patron and his companions. As we shall explain, although we agree with the Court of Appeal's criticism of the broad language of Mata, supra, 105 Cal. App.4th 1121,130 Cal.Rptr.2d 141, quoted above, we nonetheless disagree with that court's conclusion that the proprietor in this case could not properly be held liable for the injury to its patron under the circumstances presented here. Accordingly, we conclude that the judgment rendered by the Court of Appeal, reversing the trial court's judgment in favor of plaintiff, must be reversed.

I

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.

On weekend nights in 1998, the bar employed two persons variously referred to throughout the trial as "security people," "security guards," or "bouncers."1 One guard was stationed on a stool outside the bar, in the bar's parking lot. The second guard, Jason Nichols, was stationed inside the bar.

The bar manager testified that the guards were large and "good strong [men]" whom the manager "thought ... would do a good job." He explained that he provided the guards with the T-shirts they wore (bearing the words "Trax Security" or "Security" on the back) and instructed them to (i) patrol the parking lot outside the bar to ensure that persons did not congregate or consume intoxicating beverages there, (ii) check identifications in order to keep out underage patrons, (iii) count those who entered so that occupancy did not exceed 150 persons, and (iv) not physically intervene in any altercation or attack, but instead telephone "911." In response to a specific question by plaintiff's counsel concerning whether the bar "had any responsibility for the safety of [its] customers in the parking lot," the manager replied, "[t]o a certain point, yeah, to see that they got to their car."

The bar manager explained that the local police had recommended the no-physical-intervention policy, but he conceded on recross-examination that the police could take up to 20 minutes to respond. The manager explained that one purpose of the policy was to protect the bar's own guards, who were not trained in crowd control, from injury.

The bar manager acknowledged that at times the bar's guards ignored the no-physical-intervention policy and personally interceded in fights between patrons, and that when the guards did so they were not disciplined for a violation of procedure. Indeed, a former guard at the Trax bar, John White (who left employment at the bar approximately one month prior to the incident here at issue), testified as an expert (on behalf of plaintiff) that the custom and practice of guards at local bars generally, and his own custom at the Trax bar, was to treat the safety of patrons as a "top priority," and to actively and physically intervene in attacks (whether inside the bar or in an adjacent parking lot) rather than simply to telephone 911. Finally, White testified that prior to terminating his employment at the Trax bar, he advised the manager that security was inadequate on busy nights. Plaintiff Michael Wollery Delgado and his wife Linette Louise Wollery Delgado arrived at the Trax bar approximately 10:00 to 10:30 on a Saturday night in November 1998. Plaintiff, who stood six feet one inch tall and weighed 230 pounds, had consumed two beers earlier in the evening. After 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.

Plaintiff filed a personal injury suit against Trax Bar and Grill, Southern Pacific Transportation Company (the landlord), and Joseph; plaintiff's wife sued the same parties for loss of consortium. At the outset of the trial plaintiff's wife dismissed her suit, and plaintiff dismissed the landlord as a defendant. Thereafter, following opening statements, the parties stipulated that Joseph had been convicted of a felony, had filed for bankruptcy protection, and no longer was a party to the case.

Trial continued against the Trax bar only, on a premises liability theory. The jury was instructed pursuant to BAJI No. 3.11,7 concerning foreseeability and negligence; BAJI No. 3.13.1,8 concerning the duty to anticipate criminal conduct of a third person; and BAJI No. 8.23,9 concerning the duty of care owed by the proprietor of a business.10 By a vote of 9-3 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.

Defendant appealed, contending that because there was no evidence of prior similar criminal assaults either on its premises or in the vicinity, the assault upon plaintiff was unforeseeable as a matter of law, and that as a consequence it owed no duty to provide a security guard and thus could not be held liable for plaintiff's injuries.11 Plaintiff responded to this argument by asserting that defendant owed...

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