Hassoon v. Shamieh

• Decision Date: 10 May 2001
• Docket Number: No. A091760.,A091760.
• Citation: 107 Cal.Rptr.2d 658,89 Cal.App.4th 1191
• Court: California Court of Appeals Court of Appeals
• Parties: Jamal HASSOON, Plaintiff and Appellant, v. Jamal SHAMIEH et al., Defendant and Respondent.

107 Cal.Rptr.2d 658

89 Cal.App.4th 1191

Jamal HASSOON, Plaintiff and Appellant, v. Jamal SHAMIEH et al., Defendant and Respondent.

No. A091760.

Court of Appeal, First District, Division 4.

May 10, 2001.

Rehearing Denied June 8, 2001.

Review Denied August 15, 2001.

Gregory M. Haynes, San Francisco, for Appellant.

Mark R. Mittelman, for Respondent.

SEPULVEDA, J.

On the evening of January 31, 1997, plaintiff Jamal Hassoon was wounded when he was hit by a round fired from a semiautomatic weapon by a passerby. The shooting occurred as Hassoon stood in Daldas Grocery, defendants' grocery store on Eddy Street in the Tenderloin district of San Francisco. Plaintiff filed this suit for personal injury damages against the store's owners and one of their employees, alleging defendants had breached a duty of care to protect him from violent acts by third parties while he was present on their premises. Following a period of discovery, defendants moved the trial court for an order granting them summary judgment on the ground that, because the shooting was not reasonably foreseeable, they owed plaintiff no duty of care that could be breached to support liability in tort. After the trial court granted the motion, plaintiff timely filed this appeal. We affirm.

BACKGROUND

Plaintiff argues the evidence before the trial court on defendants' motion for summary judgment showed the following. Plaintiff went to defendants' store on the evening of January 31 to buy groceries. He had bought food there several times before and knew the store's employees, one of whom, defendant Natour, was working behind the counter at the time of plaintiffs visit. While plaintiff was inside the grocery, he and Natour observed as many as 10 men on the sidewalk outside the store beating another man. Natour, according to the complaint, knew the victim of the attack as someone who, in the past, had sold expensive personal items to Natour and other store employees at greatly reduced prices. All the men involved in the fight, including the victim, sold drugs on the sidewalk near the grocery, the complaint alleged. Seeing the victim being beaten, defendant Natour left the store, approached the group, and pulled the victim into the store, rescuing him. The victim asked Natour if he could borrow Natour's pistol. Natour declined to give him his gun but assured the beating victim he would be safe if he remained in the store. When other members of the group of men who had beaten the victim attempted to enter the store, armed store employees warned them not to. Stopping at the door, the men warned the beating victim they were going to shoot him.

At this point, plaintiff told Natour the victim should not remain in the store because the men outside were going to shoot him, and others in the store might be harmed. Unable to go outside, plaintiff telephoned the police. Before the police arrived, however, several shots were fired by someone sitting in a car in the street next to the grocery. Bullets passed through the front door, wounding plaintiff and two other customers within. Asked in his deposition whether "you had time to do anything to avoid being injured?" plaintiff replied, "No." Q. "Do you think there was time for anybody to stop that shooting?" A. "No way." Q. "Too fast, right?" A. "Very fast, yes." [¶] ... [¶] "Did you do anything to try to get out of the way from that shooter?" A. "I couldn't. I didn't have time to breathe." Q. "To breathe?" A. "Yeah." Q. "Just too fast?" A. "Yeah." Q. "Did you try to duck down?" [¶] ... [¶] A. "I couldn't."

In a declaration filed in support of the motion for summary judgment, defendant Shamieh stated that "Since my ownership of Daldas Grocery, it has never been robbed nor has there ever been any shooting or violent assault on the premises. [¶] ... [¶] As part of my business practices, a videotape recorder is in operation at the store. Said videotape recorder was in operation [on] 1/31/97. The occurrences of 1/31/97 were videotaped. Said videotape was given to the police." In opposition to the motion for summary judgment, plaintiff filed his own declaration, summarized above. He concluded with this assertion: "Had defendant Natour not brought the [beating victim] into the store, I would not have been shot. Had he remained outside, the co-combatant who appeared to be one of the people who sold drugs on the sidewalk, would have been rescued by the drug dealers who were friendly to him, as his friends did come to his aid[ ] in the store. [¶] If the violence escalated on the sidewalk, the combatants would have been shooting each other in the street, as opposed to shooting into a store with innocent customers."

ANALYSIS

As explained below, the judgment of the trial court must be affirmed for three independent reasons. In the context of tort law, "[t]he existence of a duty is a question of law for the court." (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 25 Cal.Rptr.2d 137, 863 P.2d 207 (Ann M.); Kentucky Fried Chicken of Calif., Inc. v. Superior Court (1997) 14 Cal.4th 814, 819, 59 Cal.Rptr.2d 756, 927 P.2d 1260; Ballard v. Uribe (1986) 41 Cal.3d 564, 572-573, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624.) On appeal from a summary judgment granted the defendant premises owner, we determine de novo the existence and scope of any duty owed. (Ann M., supra, 6 Cal.4th at pp. 673-674, 25 Cal.Rptr.2d 137, 863 P.2d 207.) In assessing the threshold issue of duty, "as in other areas of tort law, foreseeability is a crucial factor...." (Id. at p. 676, 25 Cal.Rptr.2d 137, 863 P.2d 207.) "Foreseeability, when analyzed to determine the existence or scope of a duty, is a question of law to be decided by the court." (Id. at p. 678, 25 Cal.Rptr.2d 137, 863 P.2d 207.)¹

A. Absence of proof of prior similar incidents on defendants' premises.

First, the short answer to plaintiffs contention that defendants are liable to him in tort for the gunshot wound he sustained at the grocery that night is that the absence of proof of prior similar incidents at defendants' place of business is fatal to a successful damages claim in tort. Plaintiffs failure to point to a material factual dispute regarding prior similar incidents of violence at defendants' grocery means the shooting was not foreseeable. From that premise, it follows defendants were under no duty of care running to the victim to take measures to protect him against such an event, and thus had no liability to plaintiff in tort. Together, the opinions in Ann M., supra, 6 Cal.4th 666, 25 Cal.Rptr.2d 137, 863 P.2d 207, and Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 91 Cal.Rptr.2d 35, 989 P.2d 121 (Sharon P.) lead us to conclude that in the absence of evidence of prior similar incidents (violent crime at defendants' grocery store), defendants cannot be said to have been under a legal duty to take measures to protect plaintiff against the contingency that he might foreseeably be injured as a result of physical violence while visiting defendants' property. For reasons of legal policy, in California, the duty to take security measures for the protection of visitors is not coextensive with the foreseeability of potential harm. That proposition lies at the heart of the rulings in both Ann M., supra, 6 Cal.4th 666, 25 Cal. Rptr.2d 137, 863 P.2d 207, and Sharon P., supra, 21 Cal.4th 1181, 91 Cal.Rptr.2d 35, 989 P.2d 121.

In the specific circumstances presented by this case—the foreseeability required to warrant raising a duty on the premises owner to take protective measures against third party violence—the California Supreme Court has imposed a requirement of heightened foreseeability, a requirement that goes beyond the general foreseeability of the risk of harm to visitors imposed on any owner of real property. The reason for that enhanced requirement of foreseeability, according to the opinion in Ann M., supra, 6 Cal.4th 666, 25 Cal.Rptr.2d 137, 863 P.2d 207, is that "random, violent crime is endemic in today's society. It is difficult, if not impossible, to envision any locale open to the public where the occurrence of violent crime seems improbable." (Id. at p. 678, 25 Cal.Rptr.2d 137, 863 P.2d 207; see also Sharon P. supra, 21 Cal.4th at p. 1194, 91 Cal.Rptr.2d 35, 989 P.2d 121 ["one can easily think of a host of locations and businesses that, for one reason or another, present attractive opportunities to the criminal element of society"].)

As we read these controlling precedents, the requirement of "prior similar incidents" is more than a factual precondition to premises liability; it is the objective event that separates the duty of care imposed by the law on ordinary property owners from the higher duty imposed on that smaller class of owners whose prior experience with physical violence on their premises makes it reasonable for the law to impose upon them a duty to take reasonable security measures, a breach of which resulting in injury is answerable in damages. As an element of the threshold legal duty analysis, foreseeability is a component of "duty," that "expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection." (Dillon v. Legg (1968) 68 Cal.2d 728, 734, 69 Cal.Rptr. 72, 441 P.2d 912, quoting Prosser, Law of Torts, 3d ed.1964, at pp. 332-222; see also Ballard v. Uribe, supra, 41 Cal.3d 564, 573, 224 Cal.Rptr. 664, 715 P.2d 624, fn. 6 ["As this court has explained, `duty' is not an immutable fact of nature...."].)²

B. Absence of a duty to prevent events occurring off the premises.

Second, a string of cases from the Court of Appeal indicates that a landowner has no legal duty to take measures to prevent foreseeable violence occurring off of his property. The analysis in Medina v. Hillshore Partners (1995) 40 Cal.App.4th 477, 46 Cal.Rptr.2d 871 is instructive. There, plaintiffs decedent was shot and killed by gang members who congregated around the defendant's apartment...