Opinion
B159167.
9-30-2003
JAYLEN HIGGINS, Plaintiff and Appellant, v. CHARLIES LIVE ENTERTAINMENT, et al., Defendants and Respondents.
Law Office of Stuart W. Fest, and Stuart W. Fest for Plaintiff and Appellant. Daniels, Fine, Israel & Schonbuch, and Michael N. Schonbuch and Jason P. Tortorici for Defendant and Respondent.
Plaintiff and appellant Jaylen Higgins appeals from a summary judgment in favor of defendants and respondents Charlies Live Entertainment, Inc. (Charlies or the club) and its owners: Charlotte Vivian Bell, Charlotte V. Lillie, Edmond Bell, Jr., Edmond Bell, Sr. (collectively respondents) in this premises liability action arising out of injuries appellant sustained when he was robbed and shot in the parking lot in front of the club. Appellant contends he established a triable issue of material fact as to whether respondents failure to light the parking lot adequately and to provide customers an escort from the club to their cars in the lot was a substantial factor in causing his injuries. We reverse the judgment.
STANDARD OF REVIEW
Summary judgment is granted when a moving party establishes the right to the entry of judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar ).) The moving party "bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. . . . There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Id. at p. 850, fns. omitted.) Where all of the evidence presented by the plaintiff shows the existence of an element of the offense only as likely or even less likely than the nonexistence of that element, the court must grant the defendants motion for summary judgment because a reasonable trier of fact could not find for the plaintiff in such a case. (Id. at p. 857.) Even where the element at issue can be proved by inferences, the inference of the existence of the element must be more likely than the inference of its nonexistence. An inference is reasonable if and only if it implies the existence of an element is more likely than the nonexistence of that element. (Ibid.)
In reviewing an order granting summary judgment, we independently examine the record to determine whether triable issues of material fact exist. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 766 (Saelzler).) We view the evidence and all inferences reasonably drawn in the light most favorable to the party opposing the motion. (Aguilar, supra, 25 Cal.4th at p. 843; Saelzler, supra, at p. 768.)
FACTUAL BACKGROUND
The Shooting
Charlies is a bar that features nude entertainers and lap dancers. It has been located on the corner of Florence Avenue and 9th Street in Los Angeles for 25 years. Edmond Bell, Sr. (Bell, Sr.) owns and operates Charlies. His son, Edmond Bell, Jr. (Bell, Jr.), works there. Keno Jackson is the manager during the dayshift, which generally ends at about 7 p.m.; Bell, Sr. and Bell, Jr. act as managers during the nightshift. James Scott is the dayshift doorman and Kenneth West is the nightshift doorman.
Appellant was a regular customer at Charlies, visiting there several times a week in the months prior to the shooting. Appellant, who always wore a lot of jewelry, was wearing a $ 40,000 diamond studded Rolex watch and a diamond pinkie ring when he arrived at the club during the shift change at 7 p.m. on March 1, 2000. He did not see any security personnel when he arrived. He was aware, however, that Jackson and Bell, Sr. were in the club office. Jackson was counting the days receipts and Bell, Sr. was monitoring the security video of the inside of the club.
According to witnesses, appellant was also wearing a platinum neck chain with a platinum diamond studded cross and a diamond earring. Appellant testified he was not wearing the chain or cross on this occasion.
This is because Scott was filling the beer freezer for the bartender, one of the regular duties of the doorman, and West had not yet arrived.
After spending about 10 minutes speaking with the bartender and a dancer, appellant left the club. As was his custom, appellant looked for a security escort to his car, but was unable to find one. Although aware that Jackson and Bell, Sr. were in the club office, appellant did not request an escort from them. Instead, appellant left unescorted through the clubs main entrance which opened directly onto the parking lot. When he was just a few feet from his car, which was parked in the second space from the door to the club, appellant heard a male voice behind him yell, "Yo man, come over here." Turning around, appellant was at first unable to see anyone. After a few seconds, he saw a Black male step out of the dark area on the south side of the building. Appellant said to the man, "I dont know you," then turned back towards his car. Appellant next heard gunshots and tried to duck but was shot in the back and fell to the ground. Looking up, appellant saw his assailant standing over him holding a large semiautomatic pistol. The man took appellants watch and ring, and the cash from his pockets. Appellant said, "Man, if you just wanted the watch and the ring, why didnt you just ask me for it, I would give it to you." The man called appellant stupid, kicked him, then ran away. Appellant thought he may have seen his assailant inside the club.
The people inside Charlies heard several gunshots in quick succession at about 7:15 p.m. Bell, Sr., Bell, Jr. and Jackson immediately went to the parking lot. There, they found appellant lying on the ground. Appellant told them he had been shot and robbed.
Appellant estimated the entire incident lasted one or two minutes. As a result of his wounds, appellant is permanently paralyzed from the chest down. His assailant was never apprehended.
Security at Charlies
The main entrance to the club is on the east side of the building and opens onto a parking lot illuminated by overhead lights that provide enough light by which to read a newspaper. There is, however, an approximately 100 square foot area at the eastern most edge of the south side of the building that is not well lit. The dumpster is located in that area.
The club owners, management and the doorman are responsible for providing "a security presence" at the club. A doorman is customarily stationed outside the main entrance to the club. The doorman is not allowed to carry a firearm. Among other things, the doorman patrols the parking lot every hour and escorts patrons to their cars upon request. When West patrolled the parking lot during his shift, he paid particular attention to the dark area where the dumpster is located to be sure there was no one lurking in the vicinity.
Bell, Sr. testified at his deposition that none of those responsible for security had any formal training in security. West, however, testified at his deposition that he is a licensed security guard. West is not licensed to carry a firearm; he does carry mace or pepper spray.
West testified at his deposition that he only escorted those people the club management instructed him to accompany.
Prior Violent Crimes
Charlies is located in a high crime area of the city. In approximately 1993, Edmond Bell, Sr.s step-son, Aaron Stokes, was killed in a drive-by shooting in front of the club. West was the doorman on the night Stokes was killed. Prior to that, a customer was robbed on the street in front of the club. For many years prior to March 1, 2000, the day appellant was injured, however, there had been no robberies, shootings, stabbings, fights or assaults at Charlies.
PROCEDURAL BACKGROUND
Appellant filed an action against respondents for premises liability, intentional tort, and general negligence. After respondents demurrer was sustained, appellant filed an amended complaint stating the same three causes of action. The gravamen of each claim was that appellant was shot and robbed in the parking lot of Charlies as a result of respondents breach of their duty to provide adequate security.
Respondents moved for summary judgment on the grounds that respondents owed appellant no duty to protect him from the criminal acts of a third party and appellant could not establish causation. In opposition to the motion, appellant argued Charlies was a "magnet for criminals inclined to commit . . . armed robbery and assault with a deadly weapon." Appellant maintained respondents negligence in failing to light a dark corner of the parking lot where assailants could lie in wait, and failing to have an escort available when the incident occurred, was "more probably than not, substantial contributing factors" to appellants injuries. In support, appellant submitted the declarations of three experts: Steven Frye, Fred Del Marva, and Ronald Walker.
At appellants request, hearing on the motion was continued several months.
The trial court granted summary judgment in favor of respondents. It found triable issues of material fact as to whether past incidents of crime established the requisite foreseeablity to impose a duty to provide security, and as to whether Jackson and West were "security persons" who had a duty to act reasonably to protect appellant. Characterizing as "speculative" the opinions of appellants expert witnesses, the trial court granted summary judgment because appellant could not establish causation.
After granting appellants motion for reconsideration, the trial court once again granted summary judgment in favor of respondents. It concluded appellant failed to show it was more reasonable than not that additional lighting and an escort to appellants car would have prevented the attack. It characterized as speculative the experts opinions that: " `the presence of independent, well trained, uniformed contract security guards along with the elimination of the shadowed areas of the parking lot would have not only deterred, but would have prevented this incident " (Del Marva); " `the unknown subject was familiar with the victim he was seeking to rob, and knew when he would be leaving the bar, at least approximately " (Walker); and the assailant " `would have been deterred by the presence of a security escort. That probability would have [been] significantly enhanced by the presence of armed, uniformed security personnel in the parking lot and/or doorway of the premises " (Walker).
Appellant sought reconsideration on the grounds that, since the incident, Charlies had illuminated the dark area where the assailant had been hiding with a flood light and had added new chain link fencing along the western and southern edges of the parking lot. Respondents countered that evidence of subsequent remedial measures is inadmissible and that, in any case, the evidence could have been included in appellants original opposition.
Appellant filed a timely notice of appeal.
DISCUSSION
Appellant contends the trial court erred in granting summary judgment because there is a triable issue of material fact as to the element of causation. He argues the evidence, including the opinions of his expert witnesses, was sufficient to establish a triable issue of material fact as to whether the failure to light the parking lot adequately and to provide appellant an escort to his car were substantial factors in causing his injuries. We agree.
To recover damages for injuries caused by the criminal assault of an unknown assailant, a plaintiff must show that the defendant owed the plaintiff a legal duty to protect the plaintiff from such attacks, the defendant breached that duty, and the breach was a proximate or legal cause of the plaintiffs injuries. (Saelzler, supra, 25 Cal.4th at p. 772.) To prevail on summary judgment, a defendant in such an action must " `. . . conclusively negate[] a necessary element of the plaintiffs case or demonstrate[] that under no hypothesis is there a material issue of fact that requires the process of trial. [Citation.]" (Id. at p. 767.) Even assuming there is evidence of duty and breach, there is no liability where the plaintiff fails to demonstrate the defendants negligence was an actual, legal cause of his or her injuries. (Id. at p. 766.) To establish such causation, the plaintiff must prove that increased security measures would have "more likely than not" prevented the attack. (Sandoval v. Bank of America N.T. & S.A. (2002) 94 Cal.App.4th 1378, 1387-1388 (Sandoval).) " `A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant. [Citation.]" (Saelzler, supra, at pp. 775-776, italics omitted.)
In Saelzler, a Federal Express employee attempting to deliver a package was beaten and sexually assaulted at a 28-building, 300-unit apartment complex. She sued the owner of the property to recover damages for her injuries, arguing that the owner failed to provide adequate security measures, including daytime security patrols and properly functioning security gates. In opposition to the defendants motion for summary judgment, the plaintiff submitted the declaration of a security expert. Based upon his review of the apartment complex security logs, depositions and a visit to the site, the expert opined the attack " `. . . would not have occurred had there been daytime security and a more concerted effort to keep the gates repaired and closed . . . . It is my opinion that the premises were a haven for gangsters and hoodlums which further encouraged criminal activity as evidence[ed] by the long history of criminal activity in the only one [sic] year prior to this incident. " (Saelzler, supra, 25 Cal.4th at p. 771.) The court in Saelzler found the experts opinion failed to show that the defendants failure to keep all gates and locks functioning and to provide additional security contributed to the plaintiffs injuries. (Id. at p. 775.) The court observed that "assaults and other crimes can occur despite the maintenance of the highest level of security." (Id. at p. 777.) Moreover, the plaintiff could not prove her attackers "would not have succeeded in assaulting her if defendants had provided additional security precautions." (Id. at p. 767.) The court in Saelzler pointed out that the unknown assailant may have entered through the broken gate, as posited by the plaintiff, but may also have been a tenant or otherwise authorized to be on the premises. If the latter, the broken security gate was unrelated to the plaintiffs injuries. Thus, the court concluded, "despite the speculative opinion of plaintiffs expert, she cannot show that defendants failure to provide increased daytime security at each entrance gate or functioning locked gates was a substantial factor in causing her injuries. [Citations.] Put another way, she is unable to prove it was `more probable than not that additional security precautions would have prevented the attack. [Citations.]" (Id. at p. 776.)
Although appellant focuses primarily on the absence of a readily available security escort to his car as the cause of his injuries, he also suggests that the attack could have been prevented by increased lighting in the dark area where he first saw his assailant. The court in Saelzler noted that claims of abstract negligence pertaining to lighting and maintenance of property are generally rejected where no connection to the alleged injuries is shown. (Saelzler, supra, 25 Cal.App.4th at p. 773, citing Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1196-1197.) However, the court in Saelzler indicated that causation may be shown if the "assailant took advantage of the defendants lapse (such as failure to keep a security gate in repair)," but found the expert testimony in Saelzler insufficient to establish this link. (Saelzler, supra, at p. 799.)
Here, unlike the plaintiff in Saelzler, appellant established a connection between the attack and the absence of lighting; that is, that the assailant took advantage of the absence of lighting to use the dark area as a hiding place. There was no dispute as to the source of the attack: appellants assailant stepped out of the dark area to the south of the building. In his declaration, appellant averred that this was the "dark area where I first saw the man who shot me. When I first saw him he was still in the shadows . . . ." Appellant further stated he first saw his assailant when appellant turned around in response to the mans call and saw him "step[] out from the dark area on the side of the club . . . ."
Moreover, appellants expert witnesses provided evidence from which a trier of fact could reasonably infer that the attack could have been avoided by additional lighting which would have eliminated the subject area as a place for would-be attackers to hide. Steven Frye, president and CEO of a company that provides security personnel to businesses,opined the 100-square-foot dark area next to the office door "is very dangerous because potential assailants can easily hide there . . . . At a minimum, a light fixture should be installed . . . to illuminate the area to discourage potential assailants and also to provide potential victims with an opportunity to see and avoid such persons." Appellants expert witness, Fred Del Marva, chairman and CEO of Food & Beverage Investigations and president and CEO of Del Marva Investigation Group, Special Events Security and Del Marva Corporation, opined that "elimination of the shadowed areas of the parking lot would have not only deterred, but would have prevented this incident." From this evidence, a reasonable trier of fact could conclude that, if that area been adequately lighted, the assailant would not have been able to hide there and the attack could have thus been deterred.
Appellants expert witness Ronald Walker, a former F.B.I agent, trained criminologist and criminal investigative analyst, expressed no opinion as to whether additional lighting would have prevented or deterred the attack.
Appellant also proffered sufficient evidence to establish a triable issue of material fact as to whether an escort from an unarmed security guard would have prevented the attack. (See Avila, supra, __ Cal.App.4th __ (B153932, slip opinion at p. 17), citing Lopez v. McDonalds Corp. (1987) 193 Cal.App.3d 495, 517 ["Any reasonable protective measure such as . . . unarmed security guards, might have deterred ordinary criminal conduct because of the potential of identification and capture, but could not reasonably be expected to deter or hinder a maniacal, suicidal, assailant unconcerned with his own safety . . . ."].) In Avila, we held that an experts opinion that the shooting could have been avoided if the security guard on duty had been present to intervene immediately when gang members began speaking to patrons congregated in front of defendant restaurant, had urged patrons back into restaurant, and had called for backup sooner, was sufficient to create a triable issue of material fact as to causation. (Avila, supra, slip opinion at p. 16.)
We note that appellant does not contend "that additional guards should have been hired. This is a case of a specific security person being unjustifiably absent from his post at the door to the parking lot, not a situation where there was a lack of regularly scheduled guards . . . ." Thus, this case falls within the line of authorities holding that, where a business owner has already taken the ultimate step of hiring security guards to protect patrons, it assumes a duty to protect those patrons from criminal attack and thus can be held liable for the guards unreasonable behavior, even in the absence of evidence of prior similar criminal conduct. (See, e.g., Avila v. Jado Properties, Inc. (2003) __ Cal.App.4th __ (B153932, slip opinion at pp. 7-9, 14) (Avila); see also Mata v. Mata (2003)105 Cal.App.4th 1121, 1128-1129 (Mata ).)
Also offering guidance is Mata, supra, 105 Cal.App.4th 1121. Mata involved a shooting at a bar in which a patron and one of the proprietors brothers was wounded, and another brother was killed. The shooting occurred when another patron who had been ordered to leave the bar, took out a gun and fired several shots through the closed front door of the bar. (Mata, supra, at p. 1127.) The evidence established that the bar employed a security guard whose duties included checking patrons for weapons and ejecting unruly, aggressive or intoxicated patrons. Although on duty the night in question, at the time of the incident the security guard was in the restroom and his post was being manned by the proprietors brother. (Id. at p. 1127, fn. 1.) The court in Mata held that, because the bar employed a security guard and the security guard was on duty at the time of the shooting, the bar had assumed the duty to protect patrons. (Id. at p. 1128; see also Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1018 [bar owner who employs security guard assumes duty to protect patrons from criminal attack and can be held liable if security guard acts unreasonably], citing Trujillo v. G.A. Enterprises, Inc. (1995) 36 Cal.App.4th 1105, 1108-1109 [same].) Having decided the question of duty in favor of the plaintiff, the court of appeal reversed, holding that breach and causation were questions for the jury. "The issue on summary judgment thus was . . . whether the guard acted reasonably under the circumstances; whether the employer was negligent in the hiring, retention, supervision or training of the guard; and whether the actions or inactions of the guard and/or employer contributed to appellants injuries." (Mata, supra, at p. 1129.) Specifically, the court held that it was for the jury to decide whether any of the breaches in procedure, including substituting the proprietors brother at the front door while the guard was in the restroom, contributed to the appellants injuries. (Ibid.)
Here, the evidence was undisputed that the club employed security guards whose duties included escorting patrons to their cars parked in the parking lot, and that a guard was on duty at the time of the incident, but was not present at his usual station at the door to the club. This evidence was sufficient to establish that the club had assumed a duty to protect patrons from the criminal acts of third persons. (See Avila, slip opinion at pp. 14-18; Mata, supra, 105 Cal.App.4th at p. 1128, and cases cited therein.) The issue on summary judgment thus became whether there was sufficient evidence to create a triable issue of material fact that the actions or inactions of the guard and/or the club contributed to appellants injuries. (Mata, supra, at pp. 1128-1129.) Contrary to the trial courts decision, we conclude that the evidence, including the expert opinions proffered by appellant, was sufficient to create a triable issues of material fact as to these issues.
The club did not raise breach of duty on summary judgment, limiting its motion to the absence of duty and causation. The trial court based its ruling on lack of causation, the only issue the club addresses on appeal.
In pertinent part, Frye opined that the volume of business at Charlies required the presence of professional security inside and outside the building for the protection of customers; uniformed security is a potent deterrent for armed thieves; and "[a] theft criminal, whether mugger or armed robber, is almost always deterred, in my opinion, especially by armed security personnel." Del Marva opined, based on the totality of circumstances, that "the presence of . . . well trained, uniformed contract security guards along with the elimination of the shadowed areas of the parking lot would have not only deterred, but would have prevented this incident." Finally, based upon the fact that the assailant displayed a rudimentary level of criminal experience and organization, was hiding and watching the victim, approached the victim from behind in the dark, acted at a time when he could not be observed by anyone, and used a large caliber weapon, criminologist Walker opined that appellants assailant was "risk aversive, i.e., that he has displayed behaviors indicating concern with being identified or apprehended, and that he sought to minimize his risk of exposure to identification and apprehension. [¶] . . . From all the foregoing factors, I conclude that it is more probable than not that this particular criminal offender (and this armed robbery and shooting) would have been deterred by the presence of a security escort."
Appellant conceded at oral argument that he is not contending the club should have hired armed guards. The expert witnesses, although they discussed armed guards, did not restrict their opinions to that situation.
"[W]here security guards fail to deter criminal activity, the issue of causation is to be resolved by the trier of fact." (Rosh v. Cave Imaging Systems, Inc. (1994) 26 Cal.App.4th 1225, 1236, fn. 3.) It is up to the jury to decide whether it is reasonably probable that adequate security could have prevented the shooting either by serving as a deterrent or by intervening prior to the shootings. (Madhani v. Cooper (2003) 106 Cal.App.4th 412, 418 [causation in premises liability cause of action to be a jury question].)
We do not agree with the trial court that these expert opinions are too speculative to establish a reasonable probability that appellants injuries could have been avoided by the presence of an unarmed escort. As we have already discussed, appellant did not have to establish that additional lighting and/or an escort to his car would absolutely have prevented the attack, only that it was more likely than not that they would have. (See Sandoval, supra, 94 Cal.App.4th at p. 1387.) The expert opinions were sufficient to do this. Accordingly, summary judgment was improper.
DISPOSITION
The judgment is reversed. Appellant to recover costs on appeal.
We concur: COOPER, P.J., BOLAND, J.