Opinion
Review Granted Jan. 28, 1993.
Review Dismissed and Cause Remanded Aug. 19, 1993.
Previously published at 10 Cal.App.4th 1194, 15 Cal.App.4th 1536
James A. Rainboldt, Cypress, and Richard E. Rader, Sacramento, for plaintiffs and appellants.
Solish, Jordan & Wiener, Lyn Skinner Foster and Rebecca J. Johnson, Los Angeles, for defendant and respondent.
OPINION
McKINSTER, Associate Justice.
In this appeal Bradford P. Robbins and Mark Robbins, plaintiffs and appellants (hereinafter, plaintiffs) challenge the correctness of the summary judgment entered against them and in favor of defendant and respondent, The Southland Corporation (hereinafter, Southland) on each pertinent cause of action alleged in their First Amended Complaint after the trial court concluded Southland, as a matter of law, did not owe plaintiffs a duty of care. We conclude, as we shall explain, except with respect to the fifth cause of action in which Mark Robbins sought damages from Southland based upon purported negligent infliction of emotional distress, Southland did not meet its burden of showing that Southland did not owe plaintiffs a duty of care with respect to each purported claim of negligence alleged in plaintiffs' complaint. Accordingly, we shall reverse the summary judgment with respect to all causes of action other than the fifth cause of action.
Hereafter, plaintiffs' First Amended Complaint will be referred to without the amendment designation.
SYNOPSIS OF TRIAL COURT PROCEEDINGS
In their complaint against Southland, and other defendants who are not parties to this appeal, plaintiffs alleged in pertinent part as follows:
"6. On or about March 13, 1988, at approximately 11:00 P.M. [sic ], Plaintiffs were at and upon the premises of the '7-Eleven' store [on Tyler Street in Riverside] approaching the entrance thereto.
"7. At said time and place, Defendant FRANK FRIAS exited said '7-Eleven' store running and ran past Plaintiffs. Thereupon, Defendant 'MEL' Doe [later identified as Mel Johnson, an employee of the store] exited the store and yelled at Plaintiffs to 'stop that guy,' or words to that effect. Plaintiff BRADFORD P. ROBBINS then, along with another individual, gave chase and followed the subject [presumably, Frank Frias] who had run from the store. Said subject ran towards a pick-up truck owned by Defendant JOSEPH FRIAS which was stopped on Defendant THE SOUTHLAND CORPORATION'S property and, upon arriving thereat with plaintiff BRADFORD P. ROBBINS in pursuit, FRANK FRIAS produced a sawed-off shotgun or a similar-appearing weapon from beneath a long coat and shot Plaintiff BRADFORD P. ROBBINS while still on Defendant THE SOUTHLAND CORPORATION'S property, knocking him down and causing the severe and permanent "8. Defendant THE SOUTHLAND CORPORATION and other DOE Defendants ratified the conduct of Defendant 'MEL DOE' in ordering Plaintiffs to give chase to the armed robber.
"9. At the above-mentioned time and place, Defendants JOSEPH FRIAS, FRANK FRIAS and DOES 1 through 5, and each of them perpetrated an armed robbery."
Based upon the foregoing factual allegations, plaintiffs sought damages from Southland on four purported causes of action or theories of negligence. Specifically, in their second cause of action for negligence against Southland and defendant Mel "Doe," plaintiffs alleged, "Under the facts and circumstances hereinabove set out, the conduct, actions and inactions of Defendants, and each of them, were negligent and dangerous and invited disaster in total disregard of the safety of others, including Plaintiffs." Plaintiffs alleged in their third cause of action for negligent hiring, training and supervision, that, "At all times mentioned herein and theretofore, Defendant THE SOUTHLAND CORPORATION and DOES 21 through 40, and each of them, were negligent in their selection and hiring of store personnel and employees and especially those in managerial and supervisorial positions and capacities. Defendants' policies, practices and procedures in testing and screening employees, and in training, promoting and supervising same were and are inadequate." In their fourth cause of action, plaintiffs alleged Southland was "careless, negligent and unreasonable in failing and refusing to provide sufficient, adequate and necessary security for those customers and patrons at and upon said business premises." In the fifth cause of action, plaintiff Mark Robbins alone sought damages for negligent infliction of emotional distress from all defendants, including Southland, alleging that Mark and Bradford Robbins "are brothers and, at the time of this incident, occupied the same dwelling.... Plaintiff Mark Robbins was present and saw his brother, Plaintiff BRADFORD P. ROBBINS, shot as previously described and was himself in close proximity to the blast that severely injured his brother.... As a direct legal result of Plaintiff MARK ROBBINS' contemporaneous visual and auditory observation of his brother's injury, Plaintiff MARK ROBBINS suffered severe and lasting emotional trauma including, but not limited to, nausea and lack of sleep."
According to the allegations of the complaint, as set forth above, only Bradford Robbins chased Frank Frias and suffered physical injury as a result. Therefore, we assume the four purported causes of action for negligence pertain only to Bradford Robbins, even though the allegations of those causes of action repeatedly refer to "plaintiffs."
The first and sixth causes of action of plaintiffs' complaint were against defendants other than Southland and therefore are not pertinent in this appeal.
After answering plaintiffs' complaint, Southland moved for summary judgment against plaintiffs, asserting, as a matter of law, that it "owed no duty [of care] toward Bradford Robbins and, as a result, similarly owed no duty toward Mark Robbins [for negligent infliction of emotional distress.]" More particularly, in its supporting memorandum of points and authorities Southland asserted that the facts giving rise to plaintiffs' action were nearly identical to those in Forrand v. Foodmaker, Inc. (1986) 182 Cal.App.3d 196, 227 Cal.Rptr. 74, in which Division Five of the Second District Court of Appeal held the defendant restaurant owner did not owe a duty of care to the plaintiff, a restaurant customer, who was shot by a robber after chasing the robber in response to a waitress's request to "stop him." Based upon that conclusion, the Forrand court reversed a judgment in favor of the plaintiff and against the defendant after a jury found the plaintiff's injuries were caused solely by the defendant's negligence.
In accordance with Code of Civil Procedure section 437c, and to support its assertion that the facts giving rise to plaintiffs' action mirrored the facts in Forrand, Southland filed a "Separate Statement of In opposition to Southland's motion for summary judgment, plaintiffs filed, among other things, a separate statement of undisputed facts in which plaintiffs asserted not only that the facts in the statement filed by Southland, as set forth above, were undisputed but also that additional facts were undisputed. Specifically, plaintiffs asserted it was undisputed that "Frias [the robber] got only a minimal amount of money from the store"; "Johnson [the store clerk] knew Frias was armed with a 'sawed-off' shotgun"; "Plaintiffs and their friends were minors"; "Johnson did not warn plaintiffs that Frias was armed"; "Johnson knew that it was risky to chase a robber"; "Johnson never warned or advised the boys not to chase after Frias"; "When plaintiffs joined the chase after Frias, Johnson fell back and let them go ahead."
Relying on the foregoing facts, which Southland did not dispute but instead asserted were irrelevant to the question of "duty," plaintiffs argued in their opposing memorandum of points and authorities that Johnson, Southland's employee, at the very least, owed plaintiffs a duty to warn them the robber was armed. In addition, plaintiffs attempted to distinguish Forrand in ways we shall discuss, as pertinent, below.
The trial court granted Southland's motion for summary judgment, apparently relying on Forrand and therefore concluding Southland, as a matter of law, did not owe a duty of care to plaintiffs. Plaintiffs appeal from the summary judgment subsequently entered against them and in favor of Southland, presumably as to each of the pertinent causes of action alleged in plaintiffs' complaint.
DISCUSSION
Plaintiffs, in pursuing this appeal, raise various arguments all of which are directed at demonstrating Forrand v. Foodmaker, Inc., supra, was decided wrongly and Southland does owe a duty of care to plaintiffs. Specifically, plaintiffs contend Southland, as the owner of a business held open to the public, as a matter of law, has a duty to protect customers from the foreseeable wrongful acts of third parties, in this case, the robber, and such duty includes the obligation to warn customers about such acts. According to plaintiffs, Southland's employee, Johnson, "had a duty to warn plaintiffs of the danger presented by [the robber] so they could avoid it.... Instead, [Johnson] asked [plaintiffs] to chase an armed robber...." Plaintiffs contend, because a duty of care existed on the part of Southland, the trial court erred in granting Southland's motion for summary judgment and the summary judgment entered thereon must be reversed. Southland, in turn, asserts, as it did in the trial court, that Forrand correctly analyzes the "duty" issue and properly concludes, under the facts here in question, that Southland owed no duty of care to plaintiffs; therefore the trial court properly granted Southland's motion for summary judgment against plaintiffs.
We shall not address the parties' specific contentions as set forth above. While we agree the trial court erred in granting summary judgment in favor of Southland on the pertinent negligence causes of action, other than Mark Robbins' fifth cause of action for negligent infliction of emotional distress, we do so for reasons slightly different "On a summary judgment motion, '[t]he moving party bears the burden of furnishing supporting documents that establish the claims of the adverse party are entirely without merit on any legal theory.' [Citation.]" (Cohen v. Southland Corp. (1984) 157 Cal.App.3d 130, 137, 203 Cal.Rptr. 572.) The legal theories which the moving party must refute are those framed by the pleadings. (Fireman's Fund Ins. Co. v. City of Turlock, supra, 170 Cal.App.3d at p. 994, 216 Cal.Rptr. 796.) Therefore, Southland had the burden to show that each of the negligence claims, as framed by plaintiffs' complaint, was entirely without merit.
With the exception of showing Bradford Robbins was not shot on 7-Eleven premises and Mark Robbins was not present when the robber shot his brother, Southland's filings in support of its summary judgment motion, as set out above, were directed entirely at demonstrating no triable issue existed with regard to the facts under which plaintiffs purportedly suffered their respective injuries to show, in turn, that such facts were identical to those in Forrand which held such facts did not give rise to a "duty" on the part of the defendant and therefore presumably established no negligence liability on the part of Southland.
In Forrand, the plaintiff, a Jack-in-the-Box customer, was shot by a robber whom the plaintiff chased after a Jack-in-the-Box employee said, "Stop him," as the plaintiff customer entered the restaurant. (Forrand v. Foodmaker, Inc., supra, 182 Cal.App.3d at pp. 197-198, 227 Cal.Rptr. 74.) In the plaintiff's personal injury action against Jack-in-the-Box, the jury returned a verdict in favor of the plaintiff, apparently finding the plaintiff's injuries were solely the result of negligence on the part of Jack-in-the-Box. (Id., at p. 198-199, 227 Cal.Rptr. 74.) The Court of Appeal reversed, concluding as a matter of law Jack-in-the-Box did not owe a "duty" to the plaintiff and, therefore, "no viable cause of action based on negligence can lie." (Forrand v. Foodmaker, Inc., supra, 182 Cal.App.3d at pp. 199-202, 227 Cal.Rptr. 74.)
In addressing the "duty" issue, the Forrand court correctly notes the existence of a duty of care owed by the defendant to the plaintiff "is an essential precondition to liability founded on negligence. [Citation.]" (Forrand v. Foodmaker, Inc., supra, 182 Cal.App.3d at p. 199, 227 Cal.Rptr. 74.) According to Forrand, "While duty is a question of law, foreseeability of the risk is a primary consideration in establishing the element of duty. [Citation.] Foreseeability is a question of fact unless decisional law has established that there could be no foreseeability of the risk under same or In concluding Jack-in-the-Box did not owe a "duty" to the plaintiff customer, the Forrand court does not expressly discuss the nature of the defendant's purported negligent conduct and therefore, as we discuss in more detail below, the court does not ever actually define the nature of the "duty" in question. Instead, the court focuses on the evidence presented at trial, in turn, to determine whether the waitress who said, " 'Stop him,' could ... have foreseen that her statement would cause [the plaintiff] to re-enter his car and search or chase [the robber] for over a block from the premises" and concludes "such foreseeability that might exist is so minimal as to require a negative response," particularly when viewed in light of the evidence that the waitress acted "within the time framework of the robbery" and therefore the "ability to analyze sufficiently the full consequences of her statement was slight...." (Forrand v. Foodmaker, Inc., supra, 182 Cal.App.3d at pp. 200-201, 227 Cal.Rptr. 74.)
While we disagree with the foregoing "duty" analysis, discussed in more detail below, we are of the view, even if correctly decided, Forrand is not dispositive of "duty" with respect to each of the claims of negligence alleged in plaintiffs' complaint. In our view, Forrand is a premises liability case and, if correctly decided, resolves "duty" only in that context, i.e, "the duty owed by an owner or occupier of land held open for business ... to protect visitors from the wrongful acts of third persons which threaten the safety of visitors to the premises. [Citation.]" (Forrand v. Foodmaker, Inc., supra, 182 Cal.App.3d at p. 201, 227 Cal.Rptr. 74.)
In addressing the defendant's "duty" with respect to the condition of the premises, the Forrand court notes that such " 'liability may attach only where the possessor of the premises has reasonable cause to anticipate such conduct and the probability of resulting injury, and fails to take affirmative steps to control the wrongful conduct....' [Citations.]" (Forrand v. Foodmaker, supra, 182 Cal.App.3d at p. 201, 227 Cal.Rptr. 74.) The court then declines "to extend this rule to injuries which result from wrongful acts occurring off the premises," reasoning "[s]uch a ruling would be at odds with the proviso that liability attaches only where the possessor has reasonable cause to foresee the wrongful conduct and fails to act appropriately. [Citation.] We are hard put to conclude that [the defendant] could foresee [the robber] shooting [the plaintiff] almost a block and a half away...." (Ibid.)
Although the facts in Forrand are quite similar to those underlying plaintiffs' action, plaintiffs' complaint alleged not only the factual circumstances in question but also various ways in which Southland purportedly was negligent. Although previously set out in detail, above, those allegations bear repeating here. Briefly summarized, plaintiffs alleged in their second cause of action that the conduct and actions of defendants Southland and its employee, Mel Johnson, "were negligent and dangerous and invited disaster in total disregard of the safety of others, including Plaintiffs." In their third cause of action, plaintiffs alleged Southland was negligent in the hiring, training and supervising of its employees, presumably in regard to handling of robberies at 7-Eleven stores. Plaintiffs alleged in their fourth cause of action that Southland was negligent in failing to provide security at the 7-Eleven store in question. Finally, in the fifth cause of action, plaintiff Mark Robbins alone alleged as a result of the negligent actions of Southland's employee, Mark's brother, Bradford, chased an armed robber and was shot which shooting Mark Robbins observed and as a result of which Mark suffered emotional distress.
According to the principles previously discussed, Southland was entitled to summary judgment in its favor only if it demonstrated that each of the foregoing legal The second, third and fourth causes of action of plaintiffs' complaint all pertain only to Bradford Robbins, as previously noted, and purport to allege liability on various claims of negligence. Turning to the second cause of action, liberally construed that cause of action alleges that the act of Southland's employee, Mel Johnson, in calling plaintiffs to "help" stop an armed robber, was negligent. In our view, this second cause of action asserts negligence liability against Southland on two theories of liability--first, that Southland owed a duty of care to plaintiffs which was breached by the action of Southland's employee and, second, that the employee owed a duty of care to plaintiffs which the employee breached and for which Southland, as the employer, is vicariously liable. Forrand does not expressly address the employee's duty of care and therefore does not address "duty" under the second theory of liability alleged in plaintiffs' second cause of action. Southland, in its showing in support of its motion for summary judgment, similarly did not address the employee's duty of care or Southland's vicarious liability for the acts of its alleged employee. Accordingly, for this reason alone, we conclude the trial court erred in granting summary judgment in favor of Southland on plaintiffs' second cause of action. Moreover, to the extent Forrand purports to resolve Southland's duty of care under the first theory of liability alleged in plaintiffs' second cause of action, that case is decided incorrectly.
While "duty," as the Forrand court notes, is a prerequisite to negligence liability and whether a "duty" is owed is a question of law decided by the court, the analysis employed in Forrand suggests that "duty" is a question the court must decide independently in all cases where liability is predicated upon negligence. We disagree with the suggestion in Forrand that there is no established general duty of care.
"In California, the general rule is that all persons have a duty ' "to use ordinary care to prevent others being injured as the result of their conduct...." ' [Citations.]" (Ballard v. Uribe (1986) 41 Cal.3d 564, 572, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624, citing Rowland v. Christian (1968) 69 Cal.2d 108, 112, 70 Cal.Rptr. 97, 443 P.2d 561 & Civ.Code, § 1714.) "Rowland enumerates a number of considerations, however, that have been taken into account by courts in various contexts to determine whether a departure from the general rule is appropriate: 'the major [considerations] are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.' ...." (Ibid., original emphasis.)
According to Ballard, and the authorities cited therein, in deciding the "duty" question, we begin with the "general rule" that all persons have a duty to use ordinary care to prevent others being injured as the result of their conduct. We apply the now well-known factors enumerated in Rowland v. Christian, supra, only in "various contexts" and then only to determine whether "[a] departure from this fundamental principle" is "clearly supported by public policy." (Rowland v. Christian, supra, 69 Cal.2d at p. 112, 70 Cal.Rptr. 97, 443 P.2d 561.) In other words, the Rowland factors are applied to limit the established duty to use reasonable care rather than to determine whether such a duty exists in the first instance.
In Forrand, the court took precisely the opposite approach, assuming no duty of care whatsoever existed on the part of the defendant, and then applied the Rowland factors, focusing primarily on the foreseeability In our view, and according to the issues framed by the allegations of plaintiffs' second cause of action, both Southland and its alleged employee, Johnson, owed plaintiffs a duty to use ordinary care to prevent plaintiffs from being injured as a result of their conduct. In other words, contrary to the analysis employed in Forrand we need not determine whether to establish a duty of care on the part of Southland because the "duty" is well-established. Simply put, Southland owed plaintiffs a duty to use ordinary care under the circumstances. Whether Southland breached that duty and whether such breach was a legal cause of plaintiff Bradford Robbins's injury, thereby establishing Southland's liability under the second cause of action, are questions of fact to be decided by the jury.
Moreover, to the extent Forrand reasonably may be interpreted as properly applying the factors enumerated in Rowland v. Christian, supra, to limit, as a matter of public policy, Southland's existing duty to use ordinary care, we once again are of the view Forrand is wrongly decided. First, although Forrand correctly notes "foreseeability of the risk is a primary consideration in establishing the element of duty" (or more accurately, in determining whether to limit the existing duty to use ordinary care) the Forrand court incorrectly states "foreseeability is a question of fact...." (Forrand v. Foodmaker, Inc., supra, 182 Cal.App.3d at p. 199, 227 Cal.Rptr. 74.) The Supreme Court clarified the interrelationship between "duty" and "foreseeability" in Ballard v. Uribe, supra, as follows:
"The foreseeability of a particular kind of harm plays a very significant role in [the duty] calculus [citation], but a court's task--in determining 'duty'--is not to decide whether a particular [original emphasis] plaintiff's injury was reasonably foreseeable in light of a particular [original emphasis] defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party. [p] The jury, by contrast, considers 'foreseeability' in two more focused, fact-specific settings. First, the jury may consider the likelihood or foreseeability of injury in determining whether, in fact, the particular defendant's conduct was negligent in the first place. Second, foreseeability may be relevant to the jury's determination of whether the defendant's negligence was a proximate or legal cause of the plaintiff's injury." (Ballard v. Uribe, supra, 41 Cal.3d, fn. 6, at p. 573, 224 Cal.Rptr. 664, 715 P.2d 624, additional emphasis added.)
In this case, and in our view in Forrand, the "category of negligent conduct at issue" is the alleged employee's act of soliciting another person to "stop" or apprehend a fleeing armed robber. The "kind of harm experienced" is a criminal act by a third party, specifically, an armed robber. In Consideration of the remaining factors suggested in Rowland, as set out above, further supports our conclusion. According to the undisputed facts presented below, Bradford Robbins chased the robber in response to Johnson yelling, "Help! Stop him," and was shot by the robber. Therefore, there is no justification, as a matter of public policy, for limiting Southland's duty of care based either upon "the degree of certainty the plaintiff suffered injury," or "the closeness of the connection between the defendant's conduct and the injury suffered." While reasonable minds may differ regarding the "moral blame attached to the defendant's conduct," we are unwilling to say, as a matter of public policy, that the absence of "moral blame," alone should absolve the defendant of all responsibility for the conduct here in question. The remaining factors enunciated in Rowland, specifically, "the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved," are so apparent as to require no discussion and clearly do not support limiting Southland's liability as a matter of public policy.
In discussing "foreseeability of the risk," Forrand, as noted above, focuses on the facts purportedly established by the evidence presented at trial and concludes, because the waitress was acting within the time framework of the robbery, she could not have foreseen in saying "Stop him," that the plaintiff would go to such lengths to apprehend the robber. (Forrand v. Foodmaker, Inc., supra, 182 Cal.App.3d at pp. 200-201, 227 Cal.Rptr. 74.) As previously discussed, Ballard explains this fact-specific analysis of foreseeability is reserved to the jury for purposes of determining breach of duty and legal cause. Consequently, although consistent with the Forrand view that foreseeability is a factual determination, the analysis employed in Forrand is incorrect for purposes of analyzing foreseeability in the "duty calculus."
In briefly discussing "the closeness of the connection between the defendant's conduct and the plaintiff's injury, the Forrand court concludes the connection "is tenuous." (Forrand v. Foodmaker, Inc., supra, 182 Cal.App.3d at p. 202, 227 Cal.Rptr. 74.) According to Forrand, "This connection is strengthened in direct proportion to the degree of reasonableness of the injured person's actions done in response to the alleged tortfeasor's deed. Here, we cannot say a reasonable person would have gone quite to the extent [the plaintiff] did. Not only did [the plaintiff] leave the restaurant, enter his car and search the area looking for [the robber], but after finding him, he left the car and approached [the robber] who was holding a three-and-one-half foot rifle. There was no evidence of a special relationship between [the waitress] and [the plaintiff] or [Jack-in-the-Box] and [the plaintiff] requiring or justifying such behavior on his part. [Fn. omitted.]" (Ibid.) Each of the foregoing facts, in our view, is pertinent to determining whether the plaintiff was contributorily negligent in chasing the robber, but such facts are not relevant in determining whether, as a matter of public policy, the defendant's duty to use ordinary care should be limited.
Forrand characterizes the "statement, 'Stop him,' " [as] an attempt to thwart the success of a crime" or "tantamount to a victim's cry for help." ( Forrand v. Foodmaker, Inc., supra, 182 Cal.App.3d at p. 202, 227 Cal.Rptr. 74.) With respect to the former characterization, the court concludes, citing Vandermost v. Alpha Beta Co., supra, 164 Cal.App.3d at pp. 778-779, 210 Cal.Rptr. 613, "Public policy considerations compel that we not attach moral blame to such attempts." ( Forrand v. Foodmaker, Inc., supra, 182 Cal.App.3d at p. 202, 227 Cal.Rptr. 74.) With respect to the latter characterization, the court concludes, "Public policy will not allow [a victim's] cry [for help] to become a 'springboard ... for a successful dive into litigation.' [Citation.]" (Ibid.) In the context of the facts and circumstances at issue here and in Forrand, the statement "stop him" more accurately is characterized as an attempt to apprehend a fleeing armed robber. (Cf., Vandermost v. Alpha Beta Co., supra, in which a restaurant employee closed and locked the cash register drawer when confronted by an armed robber, who then demanded money from a nearby customer whom the robber shot when the customer claimed not to have any money.) While laudatory in the abstract, present day reality suggests such an attempt is foolhardy, at best, and at worst, extremely dangerous. Moreover, we do not share the Forrand court's apparent view that the moral and public policy considerations which preclude liability where the victim's "cry" is for help to protect the victim from possible physical harm or to prevent a crime from occurring similarly preclude liability where, as here, the "cry" solely is for help to apprehend a fleeing armed robber. In our view, under these particular facts, public policy considerations compel the opposite conclusion.
In summary, based on the foregoing discussion and each of the reasons set forth therein, we conclude with respect to plaintiffs' second cause of action that Southland and its alleged employee, Johnson, owed plaintiffs a duty to use ordinary care. Accordingly, Plaintiffs' third cause of action, as set forth above, purported to allege liability on the part of Southland based upon negligent hiring, training, and supervision of Southland employees. Although plaintiffs do not specifically allege the manner in which Southland was negligent in this regard, liberally construing plaintiffs' pleading, as we are required to do, presumably such allegations pertain to hiring, training and supervising employees in connection with responding to robberies at Southland stores. Consequently, liberally construed, plaintiffs' third cause of action alleges Southland was negligent in the hiring, training and supervision of its employees regarding the manner in which to respond to robberies, as a result of which Bradford Robbins suffered injury.
Southland's showing in support of its motion for summary judgment did not address the specific allegations of negligent hiring, training or supervision of employees set out in plaintiffs' third cause of action. Instead, Southland showed only that the facts giving rise to plaintiffs' action were not disputed, which facts, in turn, were quite similar to those in Forrand. Contrary to Southland's view, Forrand v. Foodmaker, Inc., supra, is not dispositive of Southland's duty of care under plaintiffs' third cause of action because Forrand does not purport to address "duty" in the context of negligence liability predicated on the negligent hiring, training or supervision of employees. In other words, Forrand does not address "duty" according to the issues raised by plaintiffs' third cause of action, specifically, whether Southland owed a duty to use reasonable care in the hiring, training and supervision of its employees. Because Southland did not separately address the negligence allegations of plaintiffs' various causes of action or theories of recovery, but instead erroneously relied on Forrand to resolve the duty issue with respect to all possible theories of recovery, Southland failed to make the threshold showing necessary to support its motion for summary judgment with respect to the third cause of action. In addition, in our view, for the reasons previously discussed in connection with plaintiffs' second cause of action, Southland owed plaintiffs a duty to use ordinary care in the hiring, training and supervision of its employees with respect to responding to robberies at Southland's stores. Here, as with the second cause of action, triable issues of fact exist as to whether Southland breached that duty and, if so, whether such breach was the legal cause of Bradford Robbins's injury. Accordingly, for each of these reasons, we conclude the trial court erred in granting Southland's motion for summary judgment on plaintiffs' third cause of action.
In the fourth cause of action, plaintiffs alleged, as noted above, Southland was negligent in failing to provide security at the 7-Eleven store in question. Presumably, the rationale or theory underlying this cause of action and claim of negligence was either that the robbery would not have occurred had a security guard been present or the security guard, rather than the clerk, Johnson, would have chased the robber. In either case, plaintiffs' apparent theory is they would not have been solicited to assist in apprehending the robber. While we question whether plaintiffs ultimately will succeed in proving Southland breached this purported duty and that such breach was the legal cause of the injury sustained by Bradford Robbins, we have no question regarding the existence of a duty of care.
The duty owed by the owner or occupier of premises held open for business is well-established. Thus, "It is settled law in California that an owner or occupier of land held open for business purposes has a duty to protect visitors from the wrongful acts of third persons which threaten the safety of visitors to the premises when he or she has reasonable cause to anticipate such acts and the probability of resulting injury. [Citation.]" (Cohen v. Southland Corp., supra, 157 Cal.App.3d at pp. 137-138, 203 Cal.Rptr. 572, citing Taylor v. Southland made no showing in its motion for summary judgment pertinent to whether Southland did or did not have reasonable cause to anticipate the wrongful or criminal acts of third persons at the 7-Eleven in question. (See Cohen v. Southland Corp., supra, 157 Cal.App.3d at pp. 139-141, 203 Cal.Rptr. 572.) Instead, as discussed previously, Southland relied solely on Forrand, concluding, erroneously in our view, that Forrand, because of the factual similarity, necessarily disposed of any issue regarding the duty of care Southland owed to plaintiffs. We already have explained, in detail above, why Southland's conclusion in this regard was incorrect and we shall not repeat that explanation here. In short, we conclude Southland failed to show, within the issues framed by the fourth cause of action, that Southland owed no duty of care to plaintiffs. Consequently, we conclude the trial court erred in granting summary judgment in favor of Southland on this cause of action.
Finally, as framed by the facts and issues alleged in the fifth cause of action, Mark Robbins claimed he was present and observed the robber shoot his brother and on that basis attempted to allege liability on the part of Southland for negligent infliction of emotional distress under the "bystander" theory. (See Thing v. La Chusa (1989) 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814.) In its statement of undisputed facts, set forth above, Southland asserted Mark was not present when Bradford was shot. Plaintiffs acknowledged in their statement of undisputed facts, again as set forth above, that fact was not disputed. Although Southland asserted its liability to Mark depended first on whether Southland owed a duty of care to Bradford, we conclude, even assuming such duty existed, the undisputed facts demonstrate Mark was not present and therefore did not observe the shooting of his brother. Consequently, even though we conclude Southland either owed a duty of care to Bradford, or failed to meet its burden to show that it did not owe such a duty, Southland's showing in support of its motion for summary judgment refuted the only theory of liability for negligent infliction of emotional distress alleged in the fifth cause of action such that Southland was entitled to judgment in its favor and against Mark Robbins on that cause of action. Accordingly, we conclude the trial court properly granted Southland's motion for summary judgment on the fifth cause of action.
DISPOSITION
The summary judgment is reversed as to all causes of action other than the fifth cause of action, and with respect to the fifth cause of action, the summary judgment is affirmed.
DABNEY, Acting P.J., and TIMLIN, J., concur.