Opinion
No. 27239-7-III.
May 12, 2009.
Appeal from a judgment of the Superior Court for Spokane County, No. 07-2-02402-1, Gregory D. Sypolt, J., entered June 6, 2008.
Affirmed by unpublished opinion per Schultheis, C.J., concurred in by Sweeney and Korsmo, JJ.
UNPUBLISHED OPINION
Jeremy and Heidi Hambly were assaulted at a rock concert. They sued the concert venue. They asserted that, because the assailant had been previously kicked out of the venue's facility for his violent conduct, the concert venue knew the danger he posed to other patrons and therefore owed the Hamblys the duty to protect them from assault by him. Upon the concert venue's motion for summary judgment, the trial court struck the police report that purportedly set forth the assailant's violent history as known by the venue because the report could not be properly authenticated by counsel's declaration. The trial court granted summary dismissal. On appeal, the Hamblys contend that summary dismissal was improper because the venue owed them a duty. The Hamblys do not assign error to the evidentiary ruling. We discern no error and affirm.
FACTS
The facts are presented as this court must review them — in the light most favorable to the Hamblys, the nonmoving party. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982).
On May 16, 2006, the Hamblys attended a concert at The Big Easy, a venue owned by Splitting Kings 2 LLC, to see a rock concert featuring the bands Shine Down and Trapped. The Hamblys arrived early, which allowed them to secure a coveted viewing position at the balcony railing. The bands were loud and the venue was crowded with fans dancing and shouting.
As the second act started, Robert Reagan elbowed his way to the rail of the balcony, pushing himself and his wife in front of Mrs. Hambly. Mrs. Hambly tapped Mr. Reagan on the shoulder and asked him to move down the railing because she was unable to see over him. Mr. Reagan belligerently responded that it was not his problem. Mr. Reagan then began to push Mrs. Hambly back with his elbows. Mrs. Hambly informed her husband of Mr. Reagan's actions, and he told Mr. Reagan to refrain from touching Mrs. Hambly.
The Hamblys raised their arms and waived their hands in an attempt to call for security personnel. A person who identified himself as off-duty security for the venue came over and evidently recognized Mr. Reagan as they addressed each other by name. At first the man said that he could not do anything because he was off duty, but then, when he realized that Mr. Reagan was causing problems, said that he would return with help. The Hamblys continued to attempt to get the attention of security while Mr. Reagan continued to elbow Mrs. Hambly. Mr. Hambly again told Mr. Reagan to keep his hands off of Mrs. Hambly.
Mr. Reagan then turned around and punched Mrs. Hambly in the face, knocking her to the ground. Mrs. Reagan jumped on top of her. As Mr. Hambly attempted to push Mr. Reagan away from Mrs. Hambly, Mr. Reagan used his feet to sweep Mr. Hambly's legs out from under him. Mr. Reagan then stomped on Mr. Hambly's legs, breaking Mr. Hambly's ankle is three places.
Security personnel intervened and pulled Mrs. Reagan off of Mrs. Hambly, and Mr. Hambly was able to crawl away. Mr. Reagan was taken to jail and Mr. Hambly was taken to the hospital.
The Hamblys sued the Reagans for battery and the concert venue for negligence. The concert venue moved for summary judgment, asserting that it owed the Hamblys no legal duty. The Hamblys responded, claiming the venue failed to provide adequate security and protect them from harm by other patrons. The Hamblys submitted a declaration of counsel and attached a police report that tended to show that Mr. Reagan had been "86'd" from the venue due to his over-aggressiveness in the venue's mosh pit. Clerk's Papers at 117. The court understood "86'd" to mean that Mr. Reagan was excluded under penalty of trespass. Because Mr. Reagan had been "86'd," the Hamblys argued, the danger posed by Mr. Reagan's presence was known to the venue and the Hamblys' injuries were foreseeable.
The concert venue successfully moved to strike the police report because it was not properly authenticated by counsel's declaration. The concert venue's summary judgment motion was granted. The Hamblys appeal.
DISCUSSION
When reviewing an order of summary judgment brought under CR 56, this court engages in the same inquiry as the trial court. Wilson, 98 Wn.2d at 437. Summary judgment is appropriate if the pleadings, affidavits, depositions, and admissions on file show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c).
Negligence exists if a defendant breaches a duty owed to a plaintiff resulting in injury to that plaintiff, and there is a proximate cause between the breach and the injury. Hutchins v. 1001 Fourth Ave. Assocs., 116 Wn.2d 217, 220, 802 P.2d 1360 (1991). "The existence of a duty is a question of law." Folsom v. Burger King, 135 Wn.2d 658, 671, 958 P.2d 301 (1998) (citing Pedroza v. Bryant, 101 Wn.2d 226, 228, 677 P.2d 166 (1984)).
As a general rule, a person has no legal duty to protect another from the criminal acts of third parties. Nivens v. 7-11 Hoagy's Corner, 133 Wn.2d 192, 199, 943 P.2d 286 (1997) (quoting Hutchins, 116 Wn.2d at 223). An exception arises when "a special relationship exists between the defendant and either the third party or the foreseeable victim of the third party's conduct." Petersen v. State, 100 Wn.2d 421, 426, 671 P.2d 230 (1983).
Here, the Hamblys contend that the concert venue was aware of Mr. Reagan's violent tendencies and the danger he presented to other patrons because it had trespassed Mr. Reagan from the venue. The trial court, however, excluded that evidence because the police report in which the purported evidence was presented was not properly authenticated by the Hamblys' counsel. An attorney's declaration is insufficient to authenticate a police report because counsel cannot testify to the authenticity of the report's contents based on personal knowledge. Burmeister v. State Farm Ins. Co., 92 Wn. App. 359, 365-67, 966 P.2d 921 (1998) (citing CR 56(e); ER 602, 901(b)(1)). Therefore, there was no proper evidence before the court that the venue was alerted to Mr. Reagan's alleged dangerous propensity. No duty arose because the Hamblys did not show that they were foreseeable victims of Mr. Reagan's conduct.
The Hamblys do not assign error to this evidentiary ruling or provide argument or authority on this point as required by RAP 10.3(a)(6). Even if it were a valid issue, we decline to address the evidentiary issue because the Hamblys have not appealed it.
Next, the Hamblys contend that there were insufficient security personnel to maintain order in the venue. The Hamblys do not present any evidence as to what might have been the appropriate number of available personnel or to show that the number employed by the venue and on duty was insufficient. The Hamblys merely argue that, had they attracted the attention of an on-duty security officer, the incident would have been resolved before the assault occurred. That the Hamblys were not able to wave down a security person does not necessarily show that security was lacking. The Hamblys conceded that the bands were loud and the venue was crowded with people jumping up and down, dancing, waiving their hands, and shouting.
Finally, the Hamblys assert as an issue that the venue had a duty to provide appropriate care to Mr. Hambly after he was assaulted. The Hamblys do not provide authority or argument for this assertion. RAP 10.3(a)(6). The claim is deemed abandoned. Hirata v. Evergreen State Limited P'ship No. 5, 124 Wn. App. 631, 639 n. 7, 103 P.3d 812 (2004).
Affirmed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, J. and KORSMO, J., concur.