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The California Supreme Court Thursday placed more responsibility on business owners to protect individuals from criminal assaults on their properties. In two companion cases, the high court ruled that merchants could be found liable if they don’t make some effort to intervene or prevent attacks on customers and other visitors — even in parking lots outside their stores, bars and restaurants. The court reasoned that businesses have a special relationship with individuals who use their property, which requires owners and employees to take “reasonable, relatively simple and minimally burdensome steps” to stop assaults or anticipate imminent danger. In one of Thursday’s cases, Chief Justice Ronald George noted, a bar bouncer in Turlock, Calif., could have attempted to dissuade a group of men from leaving a bar to start trouble; while in the other, employees of a San Diego restaurant could have called 911 to report an ongoing fight. “Placing a 911 call is a well-recognized and generally minimally burdensome method of seeking assistance,” he wrote. In dissenting from one of the rulings, Justice Joyce Kennard accused the majority of coming “perilously close” to imposing unlimited liability on companies and declaring a policy that could close businesses or raise the prices of goods and services. In Delgado v. Trax Bar & Grill, 05 C.D.O.S. 5841, Michael Delgado had sued on a premises liability theory after being jumped and beaten by as many as 15 men in the Turlock eatery’s parking lot on the night of Nov. 7, 1998. Security guards at Trax had anticipated a possible confrontation but had not taken steps to stop it. In the other case, Morris v. De La Torre, 05 C.D.O.S. 5851, Charles Morris IV sued the owner of Victoria’s Mexican Food, a 24-hour restaurant in San Diego, after he was stabbed several times by gang members while in the parking lot on Aug. 1, 2000. His suit was thrown out on summary judgment by a judge who found that Morris — waiting for friends outside the restaurant — wasn’t a customer to whom the owner owed a duty of care. Both trial courts were reversed. In Delgado’s suit, Fresno, Calif.’s 5th District Court of Appeal ruled that Trax wasn’t liable because the gang attack wasn’t foreseeable, in that no similar incident had ever occurred. The court relied on Ann M. v. Pacific Plaza Shopping Center, 6 Cal.4th 666, a 1993 Supreme Court ruling that said business proprietors must take reasonable steps to secure common areas against foreseeable criminal acts by third parties. Ann M. also said that a “high degree” of foreseeability is required in order to find that a business owner’s duty of care includes the hiring of security guards. On Thursday, however, the Supreme Court ruled 5-2 that while there was an absence of heightened foreseeability in Delgado’s case, it didn’t mean that Trax “owed no other special-relationship-based duty to plaintiff” — such as responding to the impending attack on him with some minimal measure. Justices Kennard and Janice Rogers Brown dissented, saying that the attack outside Trax wasn’t foreseeable. In addition, Brown argued that prior court precedent didn’t impose a duty on business owners based on ongoing criminal conduct. In Morris’ case, the high court ruled unanimously that San Diego’s 4th District got it right in deciding that Silvino De La Torre, owner of the Mexican restaurant, owed a duty of care that might have been breached when his employees failed to call 911. “Foreseeability analysis in a case such as this — involving a proprietor’s duty to respond reasonably to criminal conduct that is imminent or even ongoing in his or her presence,” Chief Justice George wrote, “contrasts fundamentally with the type of foreseeability at issue in cases such as Ann M., which involve a proprietor’s duty to take preventative measures to guard against possible future criminal conduct.” The chief justice also took the opportunity in Delgado’s case to rein in Mata v. Mata, a 2003 1st District ruling — opposed by the 5th District — that said foreseeability becomes irrelevant when proprietors hire security guards for their businesses. The duty to protect, the 1st District held, has already been assumed. The chief justice on Thursday called that “overbroad and potentially misleading.” “Contrary to the suggestion that ‘the issue of foreseeability becomes irrelevant,’ whenever a proprietor has employed a security guard,” he wrote, “the foreseeability of the criminal conduct in question remains relevant to the existence and scope of a proprietor’s duty under the special relationship doctrine.” Shahab Fotouhi, a partner in Oakland, Calif.’s Fotouhi Epps Hillger & Gilroy who represented Trax Bar & Grill, said he was surprised by the court’s rulings. “I honestly think it definitely puts bar and restaurant owners in a quandary about whether to hire security guards,” he said. The court, he added, focused on what the security guards “did or didn’t know,” rather than what was foreseeable. Santa Rosa, Calif., solo practitioner Eric Young, who represented Delgado, and Sharon Arkin, a partner in Newport Beach, Calif.’s Robinson, Calcagnie & Robinson who argued on behalf of Consumer Attorneys of California as amicus curiae in Morris’ case, said the decisions clarify the law.

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