Gregorian v. National Convenience Stores, Inc.

• Decision Date: 22 November 1985
• Citation: 220 Cal.Rptr. 302,174 Cal.App.3d 944
• Court: California Court of Appeals Court of Appeals
• Parties: Arden A. GREGORIAN, Plaintiff and Appellant, v. NATIONAL CONVENIENCE STORES, INC., Defendant and Respondent. Civ. B011574.

Page 302

220 Cal.Rptr. 302

174 Cal.App.3d 944

Arden A. GREGORIAN, Plaintiff and Appellant, v. NATIONAL CONVENIENCE STORES, INC., Defendant and Respondent.

Civ. B011574.

Court of Appeal, Second District, Division 2, California.

Nov. 22, 1985.

Donald J. Townley, Cerritos, for plaintiff and appellant.

Pachulski, Stang & Ziehl, Dean A. Ziehl, Andrew W. Caine, Los Angeles, for defendant and respondent.

COMPTON, Acting Presiding Justice.

Arden A. Gregorian (plaintiff) in a personal injury action appeals from a judgment of dismissal entered after the trial court sustained the motion for summary judgment of defendants, National Convenience Stores, Inc., et al.

Plaintiff was severely injured after being attacked and beaten while shopping at defendants' Stop 'N' Go Market. At issue here is whether defendants owed a duty to plaintiff to prevent an unexpected criminal attack by a marauding youth gang. We conclude that defendants have presented evidence sufficient to sustain a judgment in their favor, and that plaintiff has not dispelled that evidence by any showing of a factual dispute which should be submitted to a trier of fact. The judgment must therefore be affirmed.

This is little conflict in the evidence. Since this is, however, an appeal from a summary judgment, where such conflict appears in the papers submitted in support of and in opposition to the motion, we resolve those conflicts in favor of the nonmoving party (plaintiff herein). (MCA Records, Inc. v. Newton-John (1979) 90 Cal.App.3d 18, 21, 153 Cal.Rptr. 153; Chesney v. Gresham (1976) 64 Cal.App.3d 120, 125, 134 Cal.Rptr. 238.)

The evidence before the court at the time it ruled on defendants' motion revealed the following scenario.

On the evening of November 30, 1980, as plaintiff was entering defendants' market in Pomona, California, he was approached by two young men who, after blocking his path and uttering threatening remarks, attempted to strike him. Manuvering quickly, plaintiff was able to block the blow and, in self-defense, strike one of the miscreants in the face. The two men made a hasty retreat and plaintiff continued into the store.

Without mentioning the attack to any of the market's employees, plaintiff completed his shopping and proceeded to the check-out stand. While paying for his purchases, the two men returned to the store accompanied by six to eight other youths. Realizing that the gang was out to seek revenge, plaintiff unsuccessfully attempted to barricade the doors. The men forced their way through, knocked plaintiff to the floor, and then brutally attacked and stabbed him. One of the store's employees also was injured during the fight.

Plaintiff himself had been employed at the market as a security guard for several months preceding the attack. In that capacity, he neither was armed nor trained to use physical force in the performance of his duties. Plaintiff's primary task was to act as a deterrent to shoplifters and to "observe and report life or property endangering conditions." During the course of his employment, he reported no such occurrences.

The declaration of defendants' corporate "risk manager" further established that no form of criminal activity had occurred at the Pomona store prior to November 30, 1980. For reasons unapparent from the record, no security guard was on duty the night plaintiff was assaulted.

After considering the foregoing evidence, the trial court found there was no triable issue of fact because, as a matter of law, defendants owed no duty of care to protect plaintiff from an unforeseeable criminal attack by a third party. Summary judgment was thereafter granted in defendants' favor and this appeal followed.

At the outset, we observe that the issues raised by plaintiff in the case at bench are anything but unique. They constitute familiar terrain over which we have traveled on numerous occasions. The past several years have seen a proliferation of cases, such as the one presently before us, in which plaintiffs seek to impose liability on the owners or occupiers of land for injuries resulting from the criminal conduct of some third party. These cases generally have held that in the absence of prior similar incidents an owner of land is not bound to anticipate the occurrence of criminal activities on his property and is not liable for injuries caused thereby. (Riley v. Marcus (1981) 125 Cal.App.3d 103, 177 Cal.Rptr. 827; Wingard v. Safeway Stores, Inc. (1981) 123 Cal.App.3d 37, 176 Cal.Rptr. 320; Jamison v. Mark C. Bloome Co. (1980) 112 Cal.App.3d 570, 169 Cal.Rptr. 399.)

In Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 211 Cal.Rptr. 356, 695 P.2d 653, however, our Supreme Court condemned any rigid application of the "prior similar incidents" rule and concluded that the absence of past criminal attacks did not forestall the imposition of a duty of care in every case. In so holding, the court reaffirmed the fundamental rule of possessor's liability articulated almost two decades ago in Rowland v. Christian (1968) 69 Cal.2d 108, 119, 70 Cal.Rptr. 97, 443 P.2d 561: "The proper test to be applied to the liability of the possessor of land in accordance with section 1714 of the Civil Code is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others, and, although the plaintiff's status as a trespasser, licensee, or invitee may in the light of the facts giving rise to such status have some bearing on the question of liability, the status is not determinative."

The sine qua non of any negligence action is, of course, the existence of a duty of care owed by the alleged wrongdoer to the person injured, or to a class of which he is a member. (Rodriquez v. Bethlehem (1974) 12 Cal.3d 382, 399, 115 Cal.Rptr. 765, 525 P.2d 669; Rowland v. Christian, supra, 69 Cal.2d at p. 119, 70 Cal.Rptr. 97, 443 P.2d 561; Richards v. Stanley (1954) 43 Cal.2d 60, 63, 271 P.2d 23; Routh v. Quinn (1942) 20 Cal.2d 488, 491, 127 P.2d 1.) Although the determination of duty is primarily a question of law, its existence may frequently rest upon the foreseeability of the risk of harm. (Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 192 Cal.Rptr. 857, 665 P.2d 947; Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36; Gomez v. Ticor (1983) 145 Cal.App.3d 622, 627, 193 Cal.Rptr. 600.) Foreseeability may be decided as a question of law only if, under the undisputed facts, there is no room for a reasonable difference of opinion. (Bigbee v. Pacific Tel. & Tel. Co., supra, 34 Cal.3d at p. 56, 192 Cal.Rptr. 857, 665 P.2d 947.)

We do not read the Supreme Court's decision in Isaacs v. Huntington Memorial Hospital, supra, as changing any of these fundamental precepts. Although the court emphasized that "foreseeability of harm should ordinarily be determined by a jury" (Id., 38 Cal.3d at p. 135, 211 Cal.Rptr. 356, 695 P.2d 653), it also pointed out that "foreseeability is but one factor to be weighed in determining whether a landowner owes a duty in a particular case." (Id. at p. 125, 211 Cal.Rptr. 356, 695 P.2d 653.) Those cases, including Isaacs, which hold the proprietor liable for the wrongful acts of third persons stress that the proprietor is not the insurer of the safety of persons on those premises and his duty to take affirmative action to control the criminal acts of third persons arises only where the possessor has reasonable cause to anticipate such acts and the probability of injury resulting therefrom, and fails to take affirmative steps to control the wrongful conduct. (Isaacs v. Huntington Memorial Hospital, supra, at p. 123-124, 211 Cal.Rptr. 356, 695 P.2d 653; Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 52 Cal.Rptr. 561, 416 P.2d 793; Edwards v. Hollywood Canteen (1946) 27 Cal.2d 802, 167 P.2d 729; Gomez v. Ticor, supra.)

It is beyond dispute that...