Torts
PREMISES LIABILITY: DUTY OF BUSINESS PROPRIETOR TO PROTECT
AGAINST CRIMINAL ASSAULT
In companion cases, the California Supreme Court clarified the rules governing the
duty of business proprietors to protect persons from criminal assaults.
Delgado v. Trax Bar & Grill (2005) 36 C.4th 224, 30 C.R.3d 145, 113 P.3d 1159,
involved the duty of the proprietor of a bar to intervene in an altercation involving a
patron of which the proprietor has actual notice. Plaintiff was assaulted in the parking lot
of defendant's bar by other patrons who followed him outside. One of defendant's
security guards had anticipated that a confrontation might occur within the bar and asked
plaintiff and his wife to leave, but failed to escort them to their car. In plaintiff's premises
liability action, the Court of Appeal reversed a jury verdict for plaintiff on the ground that
there was no evidence of any prior criminal incident that would have put defendant on
notice that such an occurrence might reasonably be anticipated. Held, reversed.
(a) Special relationship doctrine. As a general matter, there is no duty to act to protect
others from the conduct of third parties. As an exception to this general rule, however, a
defendant may owe an affirmative duty to protect another from the conduct of third
parties if the defendant has a special relationship with the other person. Courts have
found special relationships in cases involving business proprietors such as shopping
centers, restaurants, and bars and their tenants, patrons, or invitees. Accordingly, Ann M.
v. Pacific Plaza Shopping Center (1993) 6 C.4th 666, 25 C.R.2d 137, 863 P.2d 207, 6
Summary (10th), Torts, §1136, recognized as "well established" the proposition that a
business proprietor has a duty to take reasonable steps to secure common areas against
foreseeable criminal acts of third parties that are likely to occur in the absence of these
precautionary measures. (36 C.4th 235.)
(b) Duty to provide security guards is limited. Only in limited circumstances, however,
does the scope of a business proprietor's special-relationship duty to patrons or invitees
include a duty to provide security guards. Under Ann M. and Sharon P. v. Arman Ltd.
(1999) 21 C.4th 1181, 91 C.R.2d 35, 989 P.2d 121, 6 Summary (10th), Torts, §1135, it is
only when there is "heightened foreseeability" of third-party criminal activity on the
premises--shown by prior similar incidents, or other indications of a reasonably
foreseeable risk of violent criminal assaults, in that location--that the proprietor's specialrelationship duty includes an obligation to provide guards to protect patrons. To hold
otherwise would be to impose an unfair burden on business proprietors and, in effect,
force them to become insurers of public safety. (36 C.4th 238.)
(c) Other special-relationship duties may apply. A business proprietor that has no duty
under Ann M. and Sharon P. to hire security guards or to undertake other burdensome
preventative measures still owes a duty of due care to patrons and invitees by virtue of
the special relationship, and there are other circumstances that may give rise to liability
based on that relationship. For example, restaurant or bar proprietors have a duty to warn
patrons of known dangers and, in circumstances in which a warning alone is insufficient,
a duty to take other reasonable and appropriate measures to protect patrons and invitees
from imminent or ongoing criminal conduct. These measures may include telephoning
the police or 911 for assistance, or providing an escort to the parking lot by existing
security personnel. (36 C.4th 241.)
(d) Showing of heightened foreseeability is not always required. Relying on Hassoon v.
Shamieth (2001) 89 C.A.4th 1191, 107 C.R.2d 658, defendant asserted that a showing of
heightened foreseeability, generally including proof of prior similar incidents, is always
required when a plaintiff seeks to impose on a proprietor special-relationship liability
related to the criminal conduct of a third party. (36 C.4th 242.) This position is
inconsistent with Ann M. and its progeny, all of which, when articulating and applying
the heightened foreseeability doctrine, expressly reaffirm the sliding-scale balancing
formula articulated prior to and in Isaacs v. Huntington Memorial Hosp. (1985) 38 C.3d
112, 211 C.R. 356, 695 P.2d 653, 6 Summary (10th), Torts, §1134. These decisions
recognize that, as a general matter, imposition of a high burden requires heightened
foreseeability, but that a minimal burden may be imposed on a showing of a lesser degree
of foreseeability. Thus, to the extent Hassoon "suggests that a showing of heightened
foreseeability is required in all premises liability cases--regardless of the extent of the
burden sought to be imposed upon the defendant--that aspect of Hassoon is disapproved."
(36 C.4th 243, 244.)
(e) Analysis of present case. Here, defendant owed a duty to plaintiff under the special
relationship doctrine. (36 C.4th 244.)
(1) To the extent plaintiff's claim rests on a duty to provide guards to protect patrons from
assaults, plaintiff must demonstrate heightened foreseeability. Heightened foreseeability
is satisfied by a showing of prior similar criminal incidents or other indications of a
reasonably foreseeable risk of a violent criminal assault in that location. It does not
require a showing of prior nearly identical criminal incidents, as suggested by the Court
of Appeal. Nevertheless, although the record refers to a few prior altercations between
patrons, plaintiff produced insufficient evidence of either prior similar incidents or other
indications of a reasonably foreseeable risk of a violent criminal assault that would have
imposed on defendant an obligation to provide security guards. (36 C.4th 245.)
(2) However, the absence of heightened foreseeability in this case merely signifies that
defendant owed no special-relationship duty to provide guards or undertake other
burdensome preventative measures to protect plaintiff; it does not signify that defendant
owed no other special-relationship duty to plaintiff, such as a duty to respond to
unfolding events by undertaking reasonable, relatively simple, and minimally
burdensome measures. Indeed, the record clearly establishes the existence of a duty here.
Under the circumstances, it was foreseeable that an assault would occur absent separation
of plaintiff and his subsequent attackers. Accordingly, defendant had a specialrelationship duty to respond by taking minimally burdensome steps to address the
imminent danger. These measures may have included, for example, the guard's attempt to
dissuade the subsequent attackers from following plaintiff from the bar, or the guard's
confirmation that defendant's outside guard was at his post in the parking lot, available to
help maintain the desired separation. (36 C.4th 246.)
(f) Proprietor, by employment of security guards, does not assume duty to protect.
Review was granted in this case largely in light of conflict between the Court of Appeal
opinion in this case and the earlier Court of Appeal opinion in Mata v. Mata (2003) 105
C.A.4th 1121, 130 C.R.2d 141. In Mata, the appellate court, reversing an order granting
summary judgment to the defendant, held that when a 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." (36 C.4th
247.) Like the Court of Appeal, this court finds the analysis in Mata to be overbroad and
misleading. First, the scope of any duty assumed depends on the nature of the
undertaking. Merely because a business chooses to have a security program does not
signify that the proprietor has assumed a duty to protect invitees from third-party
violence. For example, a store that hires a security officer to guard its interior cash office
does not assume a duty to protect a customer who is injured in the store's exterior parking
lot by the criminal act of a third party. Second, a defendant's undertaking will support
finding a duty to another only if (1) the defendant's action increases the risk of harm to
another, or (2) the other person reasonably relies on the undertaking to his or her
detriment. Finally, foreseeability remains a highly relevant factor--even in cases in which
a legal duty is found (and regardless of the doctrine under which it is found). For
example, even when a proprietor voluntarily employs guards and owes a duty to patrons,
foreseeability remains relevant to the factfinder's determination of breach and causation.
(36 C.4th 248, 249.)
(g) Conclusion. The Court of Appeal erred in reversing the trial court's judgment for
plaintiff on the ground that defendant owed no duty. A business proprietor "with actual
notice of an impending assault" has a special-relationship duty that "includes an
obligation to take reasonable, relatively simple, and minimally burdensome steps to
attempt to avert that danger." (2005 WL 1529656, p. 14.) Whether there was sufficient
evidence to support the jury's determinations of breach of duty and causation are matters
to be addressed by the Court of Appeal on remand. (36 C.4th 250.)
Two justices dissented on the ground that the attack at issue here was not foreseeable. (36
C.4th 250.)
Morris v. De La Torre (2005) 36 C.4th 260, 30 C.R.3d 173, 113 P.3d 1182, 2005 WL
1530429, a companion case, involved a restaurant proprietor's duty to summon aid for an
invitee who was attacked outside the restaurant. Plaintiff customer was injured by thirdparty criminals in the parking lot of defendant's all-night restaurant while defendant's
employees watched from inside, failing to phone 911 or otherwise summon aid. In the
course of the attack, one of the criminals entered the restaurant to take a knife, which he
then used to stab plaintiff. The Court of Appeal reversed the trial court's grant of
summary judgment for defendant. Held, affirmed.
(a) Relevant principles under Delgado. Several principles applicable here are stated in
Delgado v. Trax Bar & Grill: A defendant may owe an affirmative duty to protect another
from the conduct of third parties, or to assist another who has been attacked by third
parties, if he or she has a special relationship with the other person. Courts have found a
special relationship in cases involving business proprietors such as shopping centers,
restaurants, and bars and their tenants, patrons, or invitees. Even if a proprietor has no
special-relationship duty to provide security guards or other similarly burdensome
measures designed to prevent future criminal conduct, which arises only on a showing of
"heightened foreseeability", a proprietor nevertheless owes a special-relationship duty to
undertake reasonable and minimally burdensome measures to assist customers or invitees
who face danger from imminent or ongoing criminal assaultive conduct occurring on the
premises. (36 C.4th 269, 270.)
(b) Foreseeability analysis. Defendant argued that a showing of "heightened
foreseeability" is a prerequisite to imposing any special-relationship duty and hence to
imposing on a restaurant proprietor liability related to the criminal conduct of a third
party. Specifically, defendant argued that he had no duty to train his employees to react
reasonably to events like those that occurred here, absent evidence of other similar
criminal incidents that would have put him on notice to do so. As explained in Delgado,
this view of the heightened foreseeability doctrine is too expansive. As a general matter,
imposition of a high burden requires heightened foreseeability, but a minimal burden may
be imposed on a showing of a lesser degree of foreseeability. In any event, foreseeability
analysis in a case like this -- involving a proprietor's duty to respond reasonably to
criminal conduct that is imminent or ongoing in his or her presence -- contrasts
fundamentally with the type of foreseeability at issue in cases such as Ann M. v. Pacific
Shopping Plaza, which involve a proprietor's duty to take preventative measures to guard
against possible future criminal conduct. Defendant's employees could readily foresee the
immediate danger posed to plaintiff. The question in the present case is whether those
employees (as agents of defendant) owed any duty to plaintiff to take reasonable action
for his protection at some point during the ongoing criminal conduct. The answer
depends on whether there was a special relationship between defendant and plaintiff. (36
C.4th 270, 271.)
(c) Special relationship existed between defendant and plaintiff. Defendant contended
that no special relationship existed between himself and plaintiff because plaintiff, who
merely accompanied friends to the restaurant and did not plan to eat, was not a customer
at the time of the attack. However, a special relationship exists not only between a
business proprietor and patrons or customers, but also between the proprietor and
invitees. Also, courts long have recognized that a person may be an invitee even if he or
she is not a paying customer at the time of injury. Potential customers on the premises of
a business open to provide services are easily invitees by any definition. Moreover, when
consistent with the purpose for which the invitation is implicitly or explicitly issued,
those who accompany an invitee are themselves invitees. Accordingly, plaintiff was an
invitee for purposes of the special relationship doctrine. (36 C.4th 271, 72.)
(d) Special relationship status is not precluded by occurrence of assault outside
defendant's physical structure. The conclusion that plaintiff was an invitee for purposes of
the special relationship doctrine is not altered by the circumstance that the attack
occurred outside the restaurant. It is well established that a proprietor's specialrelationship duty to customers and invitees extends beyond the structure of a premises to
areas within the proprietor's control. A finding of sufficient control in this case can be
based on a number of factors: (1) apparently customers and invitees regularly used the
parking lot when patronizing defendant's restaurant; (2) defendant was aware of this use,
and posted in its windows advertising that could be read from the parking lot; (3) the area
of the parking lot where the attack occurred was directly in front of the restaurant's
windows; (4) defendant's lease authorized the nonexclusive use of the parking lot for
customers' and invitees' cars; and (5) a reasonable inference can be drawn that defendant
realized a significant commercial benefit from his customers' use of the parking lot. (36
C.4th 274.)
(e) Duty to summon assistance. Because defendant stood in a special relationship with
plaintiff, defendant owed an obligation to respond to ongoing criminal conduct by
undertaking such "appropriate action as is reasonable under the circumstances" to protect
plaintiff and other patrons and invitees. (36 C.4th 274, citing Kentucky Fried Chicken of
Calif. v. Superior Court (1997) 14 C.4th 814, 823, 59 C.R.2d 756, 927 P.2d 1260, 6
Summary (10th), Torts, §1141.) Plaintiff argued that measures reasonable under the
circumstances included calling 911 to summon assistance. (36 C.4th 275.) Neither a
business proprietor nor his or her employees have an absolute obligation to call 911 in the
face of ongoing criminal conduct: in some situations, doing so actually might increase the
danger to customers or invitees or might unreasonably place proprietors or their
employees in danger. Nevertheless, on the disputed facts presented here, the record does
not establish, as a matter of law, that defendant's employees had no obligation to call 911
or undertake other similar measures to summon aid. (36 C.4th 277.) Calling 911 is a wellrecognized and generally minimally burdensome method of seeking assistance. Although
there may be situations in which the appropriate and reasonable response does not
include making such a call, as a general matter a proprietor's special-relationship duty to
patrons and invitees includes an obligation to do so. (36 C.4th 278.)
(f) Conclusion. The judgment of the Court of Appeal reversing summary judgment for
defendant is accordingly affirmed. However, the conclusion that defendant owed plaintiff
a legal duty of care, of course, will not prevent defendant from presenting evidence at
trial and arguing to the jury that his employees did not in fact breach any duty owed
because they acted reasonably in light of their fear that placing a 911 call would endanger
their own safety. Furthermore, even if the jury finds a breach of duty, it also would be
required to consider whether the breach was a proximate cause of plaintiff's injuries, that
is, whether the failure of defendant's employees to act caused plaintiff to incur greater
injury than he would have suffered had defendant's employees taken appropriate action.
(36 C.4th 278.)
Witkin References
On liability of business owner for criminal act of third party, see 6 Summary (10th),
Torts, §§1139 et seq., 1146 et seq.
On duties of landowners and possessors generally, see 6 Summary (10th), Torts, §1082 et
seq.
On affirmative duties arising from special relationships generally, see 6 Summary (10th),
Torts, §1038 et seq.