Marois v. Royal InvestIGAtion & Patrol, Inc.

• Decision Date: 28 November 1984
• Citation: 208 Cal.Rptr. 384,162 Cal.App.3d 193
• Court: California Court of Appeals Court of Appeals
• Parties: Kevin MAROIS, Plaintiff and Appellant, v. ROYAL INVESTIGATION AND PATROL, INC., et al., Defendants and Respondents. D000914. Civ. 31050.

Page 384

208 Cal.Rptr. 384

162 Cal.App.3d 193

Kevin MAROIS, Plaintiff and Appellant, v. ROYAL INVESTIGATION AND PATROL, INC., et al., Defendants and Respondents.

D000914.

Civ. 31050.

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

Nov. 28, 1984.

Rhoades, Hollywood & Neil and David G. Brown, San Diego, for defendants and respondents.

WIENER, Acting Presiding Justice.

Plaintiff Kevin Marois (Marois) appeals from the judgment entered after defendants Royal Investigation and Patrol, Inc. (Royal), James Ray Prince (Prince) and Derek Bernard Miller (Miller) successfully moved for a nonsuit. We reverse.

Factual and Procedural Background

Royal, a private security service, employed Prince and Miller in 1979. Their training program was essentially the skills they acquired "on the job." In June or July of that year Royal agreed to provide security for the Jack-In-The-Box on East Vista Way in Vista. That location had problems at the beginning of the summer with persons loitering and drinking beer in the parking lot.

Royal's services were to be rendered in accordance with its earlier proposal and a set of guidelines drafted by Foodmaker, Inc., the owner of Jack-In-The-Box. In its proposal, Royal represented that it wished to minimize vandalism and parking lot problems in order to maximize customer volume. The scope of the guards' responsibilities included patrolling the parking lot and effecting "citizen's arrests, if the need arises and it is absolutely necessary for the protection of property and safety of employees and customers upon the premises." Royal also stated it did "not stress physical action on the part of our guards, preferring that they attempt to handle any incidents which arise during their shifts by pre-empting a possible violent or explosive situation, before it reaches a critical stage. However, we will take whatever action is needed to protect the area, including the use of a citizen's arrest."

The Foodmaker guidelines required Royal to prevent loitering, to ask rowdy or boisterous persons to leave the premises and to "[d]etain anyone who creates damage to property or endangers lives for local law enforcement offices." If detention could not be accomplished, the security officers were to "obtain all pertinent information about the individual or incident" for law enforcement. ¹

On September 8, 1979, Prince and Miller were assigned to patrol the Jack-In-The-Box. Around 11:30 p.m. Terry Hunt entered the restaurant. His face and clothes were bloody. Prince followed Hunt into the restaurant's restroom and told him to leave the premises. Hunt immediately did so but remained in the parking lot.

Approximately 20 minutes later Hunt and Steve Gracelli vandalized a nearby Dean's Photo Service kiosk with a baseball bat. Dean's was located in the Jack-in-the-Box parking lot less than 25 yards from the restaurant's drive-up window. A group of persons had gathered and was watching the incident. The vandalism was witnessed by a Jack-In-The-Box employee who telephoned the sheriff's office and informed Prince and Miller he had done so. Both guards then investigated the problem.

At the time of the vandalism, Marois and his friend Bruce Stingle were waiting for their food order at the Jack-In-The-Box drive-up window. When he saw what was going on, Stingle left the car and crossed the parking lot to the area around Dean's. Marois followed shortly thereafter and found Hunt and Gracelli fighting with Stingle. Marois approached them, arming himself with an empty beer bottle. Hunt retrieved the baseball bat. Upon seeing the bat in Hunt's hand, Marois dropped the bottle and retreated. Despite the verbal attempts by Prince and Miller to dissuade him, Hunt hit Marois with the bat. The actual attack occurred just outside the drive-up window. Prince and Miller returned to the restaurant and told a Jack-In-The-Box employee to call the paramedics. They also noted the make and license plate number of the vehicle in which Hunt and Gracelli left the scene. They turned this information over to the sheriff.

Marois sued Hunt and Gracelli for assault and battery and Foodmaker, Inc., doing business as Jack-In-The-Box for negligence. Later, Marois amended his complaint to name Royal, Prince and Miller as defendants.

During trial, Marois settled with Foodmaker. After Marois rested his case, Royal, Prince and Miller successfully moved for nonsuit asserting Marois had failed to show defendants owed him a duty to act affirmatively to prevent the assault.

Discussion

The trial court resolved the issue in this case in terms of the defendants' duty to prevent the injury to the plaintiff. We recognize that the "duty" concept is an ingrained component of American tort law. Nonetheless, the California Supreme Court in a series of significant cases has cautioned lower courts regarding the confusing and misleading nature of "duty" analysis.

"The assertion that liability must ... be denied because defendant bears no 'duty' to plaintiff 'begs the essential question--whether the plaintiff's interests are entitled to legal protection against the defendant's conduct .... [Duty] is a shorthand statement of a conclusion, rather than an aid to analysis in itself.... [I]t should be recognized that "duty" is not sacrosanct in itself, but only an 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. 332-333; see also Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 805-806, 205 Cal.Rptr. 842, 685 P.2d 1193.)

As the court reiterated in Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 434, 131 Cal.Rptr. 14, 551 P.2d 334, "[L]egal duties are not discoverable facts of nature, but merely conclusory expressions that, in cases of a particular type, liability should be imposed for damage done." This court has previously noted and heeded the Supreme Court's warning. (See Myers v. Quesenberry (1983) 144 Cal.App.3d 888, 891-892, 193 Cal.Rptr. 733; Elam v. College Park Hospital (1982) 132 Cal.App.3d 332, 338, fn. 7, 339-340, 183 Cal.Rptr. 156.)

"Duty" analysis can be confusing and confused because courts employing two separate and distinct analytic processes nonetheless label both as involving questions of the defendant's "duty." One "duty" inquiry used by some courts focuses on the reasonableness of the defendant's conduct. Where a court determines that the plaintiff was injured in spite of the defendant's reasonable actions, it is sometimes stated that the defendant's duty did not extend to the prevention of the plaintiff's injury. (See, e.g., Rogers v. Jones (1976) 56 Cal.App.3d 346, 351, 128 Cal.Rptr. 404; see also Gomez v. Ticor (1983) 145 Cal.App.3d 622, 628, 193 Cal.Rptr. 600, suggesting that a duty exists only if risk of harm is forseeable. ² )

The second "duty" inquiry involves those "considerations of policy" which on occasion lead courts to refuse to impose liability even when the plaintiff's injury was caused by the defendant's failure to act reasonably. (See Dillon v. Legg, supra, 68 Cal.2d at p. 734, 69 Cal.Rptr. 72, 441 P.2d 912.) Thus where a defendant's nonfeasance, as opposed to misfeasance, is the basis for a claim of negligence, courts often conclude--without ever reaching the reasonableness of the omission--that the defendant had no duty to affirmatively prevent plaintiff's injury. (See, e.g., Williams v. State of California (1983) 34 Cal.3d 18, 23, 192 Cal.Rptr. 233, 664 P.2d 137; Thompson v. County of Alameda (1980) 27 Cal.3d 741, 754, 167 Cal.Rptr. 70, 614 P.2d 728.) Similarly, some courts have held that a concededly negligent lawyer or accountant owes no duty to those who were not the intended beneficiaries of his advice. (See e.g., Goodman v. Kennedy (1976) 18 Cal.3d 335, 342-344, 134 Cal.Rptr. 375, 556 P.2d 737; but see Rosenblum v. Adler (1983) 93 N.J. 324, 461 A.2d 138, 153.)

I

Defendants' arguments to the trial court, as well as their presentation to this court, encompass elements of both of these distinct analytic processes. We choose to address the second concept first because it presents an abstract legal question of general application: Are there any established policy considerations which warrant a rule that a business establishment's security guard may never be liable to a patron of that establishment for injuries caused by the intentional tortious acts of third parties, regardless of the guard's negligence? We answer the question in the negative.

The general rule of negligence law in California is that a defendant is liable whenever his failure to act in a reasonable manner contributes to causing the plaintiff's injury. (See Civ.Code § 1714; Rowland v. Christian, supra, 69 Cal.2d at pp. 112-113, 70 Cal.Rptr. 97, 443 P.2d 561; Vesely v. Sager (1971) 5 Cal.3d 153, 163, 95 Cal.Rptr. 623, 486 P.2d 151.) A generally recognized exception to this general rule is that a defendant will not be held liable for his failure to control the conduct of third persons. (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 203, 185 Cal.Rptr. 252, 649 P.2d 894.) Liability may arise, however, where "the defendant stands in some special relationship to ... the forseeable victim of that conduct ...." (Tarasoff v. Regents of University of California, supra, 17 Cal.3d at p. 435, 131 Cal.Rptr. 14, 551 P.2d 334.)

Defendants recognize that the relationship between a business and its customers is a special one requiring the business "to take affirmative action to control the wrongful acts of third persons which threaten invitees where [it] has reasonable cause to anticipate such acts and the probability of injury resulting therefrom." (Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 121, 52 Cal.Rptr. 561, 416 P.2d 793.) But even where a business hires a security guard...