Lopez v. McDonald's Corp.

• Decision Date: 09 July 1987
• Citation: 193 Cal.App.3d 495,238 Cal.Rptr. 436
• Parties: Cristian TOSCANO LOPEZ, et al., Plaintiffs and Appellants, v. McDONALD'S, et al., Defendants and Respondents. D004619.
• Court: California Court of Appeals

Page 436

238 Cal.Rptr. 436

193 Cal.App.3d 495

Cristian TOSCANO LOPEZ, et al., Plaintiffs and Appellants, v. McDONALD'S, et al., Defendants and Respondents.

D004619.

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

July 9, 1987.

McAvoy & Korrey by David M. Korrey, San Diego, Sugarman & Csillag by Arthur Csillag, and Ronald Sugarman, Los Angeles, for plaintiffs and appellants.

Hollywood & Neil by Gina Lacagnina, San Diego, and Horvitz, Levy & Amerian by Barry R. Levy, and Peter Abrahams, Encino, for defendants and respondents.

WORK, Associate Justice.

Survivors and surviving family members of victims of the tragic 1984 massacre at McDonald's restaurant in San Ysidro, California, appeal a summary judgment in favor of McDonald's Corporation, and its franchise, Bosherro 522 Partnership and Robert T. Colvin (McDonald's). They challenge a trial court determination that as a matter of law McDonald's had no duty to provide protection against mass murderous assaults. For the reasons which follow, we conclude such an event constitutes a hazard outside the boundaries of a restaurant's general duty to protect its patrons from reasonably foreseeable criminal acts of third parties. Further, assuming this event were a hazard within the scope of McDonald's protective duty, we conclude there exists no causal nexus between the proprietor's breach of duty to protect its patrons from reasonably foreseeable criminal acts of third parties and the injuries suffered by plaintiffs here. Accordingly, we affirm the judgment.

I FACTUAL AND PROCEDURAL BACKGROUND

On a clear and sunny day, James Oliver Huberty entered McDonald's restaurant in San Ysidro dressed in camouflage pants and armed with a 9 mm. semi-automatic rifle, a semi-automatic 9 mm. pistol and a .12 gauge shotgun. He immediately began indiscriminately slaughtering patrons and employees within the glass-enclosed structure. During the hour of terror before he was killed by a police sharp-shooter, Huberty showed no intent to the restaurant; made no demands for money; made no effort to take hostages; loaded his weapons several times; and killed 21 people in the restaurant and wounded 11 others. His single apparent purpose was to kill as many people as possible before he himself was slain.

Plaintiffs sued for damages for wrongful death and personal injuries ¹ on theories of negligence and premises liability, alleging McDonald's failed to provide adequate safety devices or security personnel to protect customers from dangerous and known risks. In support of their theory of liability, plaintiffs allege McDonald's knew its San Ysidro facility was in a high-crime area and its employees were so concerned over the criminal activity within the immediate vicinity they had solicited a private security company to offer its services to McDonald's. The security service's proposal to McDonald's management and ownership cited the area's high-crime rate, increasing gang activity and nearby incidents of violent crimes which would have endangered McDonald's patrons had they occurred on its premises. Claiming economic reasons, McDonald's declined the security service offer to provide a uniformed security officer at $5.75 an hour.

McDonald's motion for summary judgment contends this sudden and unprecedented mass slaying of customers within its restaurant was not foreseeable; imposing a duty to prevent such incidents is totally impracticable and contrary to public policy; and there is no causal connection between the alleged security inadequacies and the plaintiffs' injuries.

McDonald's filed a declaration of the assistant manager of its franchise and the San Diego Police Department lieutenant in charge of homicide to support its summary judgment motion. They established the undisputed facts of the incident. Further, the employee's declaration described Huberty's entry into the restaurant, his random shooting at everything and everyone in sight, the reloading of his automatic weapons and his walking up and down the aisles slaughtering all those he found still alive and that his only apparent motive was to randomly kill. ² The lieutenant's declaration echoed the employee's declaration, adding an investigation revealed Huberty kissed his wife goodbye and stated he was going "hunting for humans"; his act appeared to be that of a "demented, mentally unbalanced man, bent on murder and self-destruction"; upon entry into the restaurant, he systematically and without warning shot and killed patrons and employees until he apparently believed all were dead; and by the time of his death, he still had ample ammunition. To the officer's knowledge, there had never been an incident in San Diego involving such a deliberate, unprovoked random slaughter.

Plaintiffs presented evidence tending to show that between January 19, 1981 and July 18, 1984, the crimes committed on the restaurant premises included two robberies, two petty thefts, one unlawful use of vehicle, vandalism, grand theft and theft by fraud. During the same approximate time period, crime statistics revealed that within a one-tenth of a mile radius of the restaurant, six burglaries, five batteries, one assault with a deadly weapon, two drawings of a deadly weapon, numerous grand thefts and various other crimes were committed. During the same approximate time period within a two-tenths of a mile radius of the restaurant, five robberies, five batteries, three assaults with a deadly weapon, thirty-eight felony thefts, two drawing of deadly weapons and numerous other crimes against property, thefts and vandalism were committed. The FBI crime index for the fiscal year 1983-84 shows the San Ysidro crime rate was higher than the City-wide crime rate in the following ratios: crimes generally were 125%; violent crimes were 228%; murder was 262.5% and rapes, etc. were 173.2%.

Plaintiffs also presented the deposition of Wilbert W. Holley, employed by Allegiance Security Incorporated for marketing, sales and surveys. Holley, who had been in the security field for approximately 10 years, attempted to sell security to the McDonald's restaurant just two months before the massacre. He obtained crime statistics for the San Ysidro area and told Mr. Sissung in the McDonald's corporate offices he had spoken to employees at the San Ysidro facility. He stated the restaurant was in a high-crime area and that in his professional opinion, as well as that of the employees he questioned, security was needed and uniformed, licensed security officers could be provided at $5.75 per hour. Sissung rejected the offer, declaring: "That's too much money. We don't want to spend any money. There is no problem, we don't need it anyways." Without citing any supporting fact, Holley opined, "The use of security at that site would have acted as a deterrent and could possibly have prevented the [massacre]." Additionally, he stated there was no visible security at McDonald's, but that the nearby Jack-in-the-Box employed uniformed, licensed security people. Finally, he declared on the basis of personal experience, the use of security devices or personnel reduce the incidents of crime and theft. ³

Other evidence showed that at the time of the incident, one could not see into the restaurant because of the bright sunlight glaring on the tinted windows; the site of the restaurant was elevated above other buildings in the surrounding area; and there was substantial graffiti throughout the immediate area. A summary of security systems of approximately 24 neighboring businesses showed they ranged from armed guards (at foreign currency exchanges), closed circuit T.V.'s, alarm systems with and without mobile security response, to periodic roving security patrols.

II STANDARD OF REVIEW

The underlying purpose for summary judgment is to resolve litigation by avoiding needless trials. (Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd. (1983) 147 Cal.App.3d 309, 313, 195 Cal.Rptr. 90; see Code of Civ.Proc., § 437c.) A summary judgment may be granted only if no material triable issue of fact exists. The moving parties' affidavits must set forth facts entitling them to a judgment as a matter of law. (Lipson v. Superior Court (1982) 31 Cal.3d 362, 374, 182 Cal.Rptr. 629, 644 P.2d 822; Cohen v. Southland Corp. (1984) 157 Cal.App.3d 130, 137, 203 Cal.Rptr. 572; Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd., supra, 147 Cal.App.3d at p. 313, 195 Cal.Rptr. 90.) Similarly, where there are no triable issues of fact and the parties' contentions involve an issue of law, summary judgment is proper. (Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd., supra, 147 Cal.App.3d at p. 313, 195 Cal.Rptr. 90.)

"In examining the sufficiency of affidavits filed in connection with the motion, the affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. Such summary procedure is drastic and should be used with caution so that it does not become a substitute for the open trial method of determining facts." (Corwin v. Los Angeles Newspaper Service Bureau, Inc. (1971) 4 Cal.3d 842, 851-852 [94 Cal.Rptr. 785, 484 P.2d 953], quoting Stationers Corp. v. Dun & Bradstreet, Inc., (1965) 62 Cal.2d 412, 417 [42 Cal.Rptr. 449, 398 P.2d 785]; Twohig v. Briner (1985) 168 Cal.App.3d 1102, 1105 [214 Cal.Rptr. 729].)

The moving party has the burden to furnish supporting documents establishing the claims of the adverse party are entirely without merit on any legal theory. (Lipson v. Superior Court, supra, 31 Cal.3d at p. 374, 182 Cal.Rptr. 629, 644 P.2d 822; Cohen v. Southland Corp., supra, 157 Cal.App.3d at p. 137, 203 Cal.Rptr. 572.) Finally, where the evidence in support of the summary judgment motion is lacking, the moving party cannot rely on unsupported pleading allegations to prove its case. (Lipson v. Superior Court, supra, 31 Cal.3d at p. 374...