Opinion
B219950
08-01-2011
RYAN LOGSDON, Plaintiff and Appellant, v. THE STANDARD HOTEL, Defendant and Respondent.
Cheren and Associates and Daniel J. Cheren for Plaintiff and Appellant. Lewis Brisbois Bisgaard & Smith, Roy G. Weatherup, Matthew B. Stucky; Pollard Mavredakis Cranert Crawford & Stevens, and James F. B. Sawyer for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. SC097143)
APPEAL from a judgment of the Superior Court of Los Angeles County, Elizabeth Grimes, Judge. Affirmed.
Cheren and Associates and Daniel J. Cheren for Plaintiff and Appellant.
Lewis Brisbois Bisgaard & Smith, Roy G. Weatherup, Matthew B. Stucky; Pollard Mavredakis Cranert Crawford & Stevens, and James F. B. Sawyer for Defendant and Respondent.
In the underlying action, the jury found that although respondent The Standard Hotel (Hotel) engaged in negligent conduct regarding appellant Ryan Logsdon, the conduct was not a substantial factor in the causation of his injuries. Logsdon contends the jury was inadequately instructed regarding the principles of premises liability; in addition, he maintains that the Hotel's liability has been established as a matter of law. Finding no prejudicial error, we affirm.
RELEVANT FACTUAL AND
PROCEDURAL BACKGROUND
In February 2008, Logsdon initiated the underlying action against the Hotel and Bradford and Alexander Meikle, who are brothers. Logsdon's first amended complaint, filed May 28, 2008, asserted a claim for negligence against the Hotel, claims for assault, battery, and intentional infliction of emotional distress against the Meikles, and a claim for negligent infliction of emotional distress against all the defendants. The complaint alleged the following facts: On November 5, 2006, the Meikles harassed Logsdon while he was a patron in a bar within the Hotel. After the Hotel's employees ejected the Meikles from the bar, they also ejected Logsdon, even though they knew or should have known that the Meikles were waiting for Logsdon outside the Hotel. When Logsdon left the Hotel, the Meikles attacked him.
Prior to trial, the Meikles entered a settlement agreement with Logsdon, who dismissed his claims against them. Trial was bifurcated on the issue of liability and damages. During the initial phase of the trial, Logsdon requested several instructions regarding a landlord's premises liability, including a special instruction based on Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224 (Delgado). The trial court declined to give the instructions. Following the presentation of evidence, the jury found that although the Hotel was negligent, its conduct was not a substantial factor in causing harm to Logsdon. On August 26, 2009, judgment was entered in favor of the Hotel and against Logsdon. This appeal followed.
DISCUSSION
Logsdon contends (1) that the rejection of his requested instructions was prejudicial error, and (2) that the Hotel's liability for his injuries was established as a matter of law. For the reasons explained below, we reject these contentions.
A. Instructional Error
Logsdon contends that the trial court erred in refusing to give his requested instructions on premises liability. He argues that the jury received insufficient guidance regarding the Hotel's duties to prevent the altercation that caused his injuries.
1. Standard of Review
Generally, "[a] party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him which is supported by substantial evidence." (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572.) However, "[i]n order to complain of failure to instruct on a particular issue the aggrieved party must request the specific proper instructions. [Citations.] . . . [T]he court has no duty to modify erroneous instructions submitted to it, and there is no error if it simply rejects such instructions. [Citation.] [¶] Furthermore, the duty of the court is fully discharged if the instructions given by the court embrace all the points of the law arising in the case. [Citations.]" (Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 335.)
The improper rejection of a requested instruction is not reversible error unless the omission was prejudicial, that is, it is "reasonably probable defendant would have obtained a more favorable result" had the instruction been given. (Soule v. General Motors Corp., supra, 8 Cal.4th at p. 570.) "A 'reasonable probability' in this context 'does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.'" (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 682, quoting College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715, italics deleted.) To determine whether instructional error was prejudicial, we evaluate "(1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel's arguments, and (4) any indications by the jury itself that it was misled." (Soule v. General Motors Corp., supra, at pp. 580-581.) In this regard, the evidence is viewed in the light most favorable to the party claiming error. (Sesler v. Ghumman (1990) 219 Cal.App.3d 218, 223.)
2. Governing Principles
A business's duty to maintain its premises includes duties based on its "'special relationship'" with patrons. (Delgado, supra, 36 Cal.4th at pp. 229, 234241.) Although there is ordinarily no duty to protect others from the conduct of third parties, a proprietor's "special relationship" with patrons creates an affirmative duty to protect patrons from third party misconduct. (Ibid.) Under this doctrine, businesses are obliged to take reasonable measures to shield their patrons from injurious third party conduct. (Ibid.)
A proprietor may breach these duties even though the injurious third party conduct occurred on property not owned or leased by the proprietor. A proprietor must take reasonable protective measures regarding property under the proprietor's control, regardless of whether the proprietor owns or leases the property. (Morris v. De La Torre (2005) 36 Cal.4th 260, 274; Southland Corp. v. Superior Court (1988) 203 Cal.App.3d 656, 664-669.) This rule encompasses public land over which the proprietor exercises control. (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1170-1171.) Furthermore, the proprietor may be liable for injuries that occurred off its property when it "affirmatively created a dangerous condition on the site" or "there was a functional connection between the owner's conduct and the injury suffered." (Rosenbaum v. Security Pacific Corp. (1996) 43 Cal.App.4th 1084, 1091.) Thus, in Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 501-503, the court held that a condominium association could be sued for negligence in connection with a rape that occurred within a condominium unit, as the association's failure to implement security measures in the areas under its control contributed to the rape.
In Delgado, our Supreme Court examined a bar's duties to protect patrons from criminal activity. There, the plaintiff and his wife visited the defendant bar, where four or five other patrons stared at him in an aggressive manner. (Delgado, supra, 36 Cal.4th at pp. 230-231.) Fearful that the staring presaged a fight, the plaintiff's wife pointed it out to the bar's guards; the plaintiff then left the bar with his wife. (Id. at p. 231.) As they walked to the bar's parking lot, they were followed by the menacing patrons, who joined up with other men waiting in the parking lot. (Id. at p. 231.) When the men began to assault the plaintiff, he ran out of the parking lot and across the street to divert the attackers from his wife. (Id. at pp. 231-232, fn. 6.) The attackers followed and beat him with a baseball bat. (Ibid.) After the plaintiff prevailed in his negligence suit against the bar, the bar appealed, contending it had no duty to provide security guards, and thus could not be liable for the plaintiffs injuries. (Id. at p. 233.)
The Supreme Court explained that a business is ordinarily obliged to maintain guards in an area of its premises only when there is a "'heightened'" foreseeability of criminal activity, as shown by a history of similar criminal incidents. (Delgado, supra, 36 Cal.4th at pp. 236-240.) However, even when a business is not required to hire guards, its "special relationship" with patrons may oblige it to deploy its guards -- if it has any -- and other employees to protect the patrons in reasonable ways. (Id. at pp. 240-242.) The court stated: "[A] restaurant or bar proprietor . . . has a duty to warn patrons of known dangers [citation] and, in circumstances in which a warning alone is insufficient, has a duty to take other reasonable and appropriate measures to protect patrons or invitees from imminent or 'ongoing' criminal conduct. [Citation.] Such measures may include telephoning the police or 911 for assistance [citation], or protecting patrons or invitees from an imminent and known peril lurking in a parking lot by providing an escort by existing security personnel to a car in that parking lot. [Citations.] Moreover, . . . a proprietor who serves intoxicating drinks to customers for consumption on the premises must 'exercis[e] reasonable care to protect his patrons from injury at the hands of fellow guests[.]'" (Id. at p. 241, quoting Saatzer v. Smith (1981) 122 Cal.App.3d 512, 518.)
Regarding the duty imposed upon proprietors who serve alcoholic drinks, the Delgado court elaborated: "[S]uch a duty '"arises . . . when one or more of the following circumstances exists: (1) A tavern keeper allowed a person on the premises who has a known propensity for fighting; (2) the tavern keeper allowed a person to remain on the premises whose conduct had become obstreperous and aggressive to such a degree the tavern keeper knew or ought to have known he endangered others; (3) the tavern keeper had been warned of danger from an obstreperous patron and failed to take suitable measures for the protection of others; (4) the tavern keeper failed to stop a fight as soon as possible after it started; (5) the tavern keeper failed to provide a staff adequate to police the premises; and (6) the tavern keeper tolerated disorderly conditions [citations]."' [Citations.]" (Delgado, supra, 36 Cal.4th at p. 241, fn. omitted, quoting Saatzer v. Smith, supra, 122 Cal.App.3d at p. 518.)
Applying these principles to the case before it, the court concluded that although the bar had no obligation to hire guards to protect against third party assaults, the menacing looks from the plaintiffs assailants required its exis ting guards to take protective actions that were "reasonable, relatively simple, and minimally burdensome." (Delgado, supra, 36 Cal.4th at pp. 242-247.) These measures included establishing some separation between the plaintiff and the menacing patrons as the plaintiff left the bar, and ensuring that the guard posted in the parking lot maintained the separation. (Id. at pp. 244-247.)
3. Underlying Proceedings
As the existence of prejudicial instructional error must be assessed in light of the trial record (Soule v. General Motors Corp., supra, 8 Cal.4th at p. 580), we summarize the underlying proceedings.
a. Logsdon's Opening Statement and Evidence
In Logsdon's opening statement, his counsel explained that the injuries for which Logsdon sought recovery occurred after the Meikles and Logsdon were expelled from the Purple Lounge, a bar within the Hotel, located on Sunset Boulevard in West Hollywood, near Sweetzer Avenue. Counsel noted two incidents of physical hostility within the Purple Lounge, but said that they were not what Logsdon was "suing about."
Logsdon testified as follows: On November 4, 2006, he celebrated his twenty-fifth birthday with a friend, Ray Siu. They took a taxi to a restaurant near the Hotel, and then walked to the Hotel, where they entered the Purple Lounge at approximately 10:00 p.m. Nathaniel Rhyne and Nisha Shrimanker joined them, and the group settled onto a sofa. The Meikles soon arrived at the sofa and repeatedly told Logsdon that he was at the wrong table. A male accompanying the Meikles took Logsdon aside, warned him the Meikles might hurt him, and suggested he leave.
Logsdon decided to leave the bar. When he returned to the sofa to collect his friends, the Meikles pushed him backward onto Shrimanker and Rhyne, who were seated on the sofa. Two security guards intervened, grabbed the Meikles, and led them away from Logsdon's group. A guard assured Logsdon's group that if the Meikles did anything again, they should report the activity and the Meikles would be ejected.
Shrimanker and Rhyne remained at the sofa while Logsdon and Siu moved to seats in a darker area of the bar, away from the Meikles. After 45 minutes, Logsdon lost track of the Meikles, and he and Siu rejoined their friends on the sofa. However, the Meikles soon reappeared at the sofa, made hostile remarks to him, and began "flicking" ice cubes at him. When Logsdon and his group brought the Meikles' conduct to the security guards' attention, they did nothing to stop it.
Logsdon and his group again decided to leave the bar. As Logsdon rose from his seat, the Meikles rushed toward him. In self-defense, Logsdon threw a punch, but made no contact. The Meikles pushed Logsdon onto a glass table, resulting in the breakage of glass. As Logsdon struggled on the floor, he lost a shoe, cut his foot on a glass shard, and passed out.
When Logsdon revived, he found the bar was almost empty. A guard picked him up and said, "Okay, it's time to go." The guard did not ask whether Logsdon needed medical attention or intended to file a criminal report. Because Logsdon's foot was bleeding, the guard permitted him to go to a bathroom, where he put on his shoe. The guard then directed Logsdon to leave the bar by an exit opening onto a patio, but did not accompany him the full way to the exit.
At the exit door, Logsdon found Siu, who had been waiting for him. Logsdon went through the door, crossed the patio, and stepped onto a walkway. According to Logsdon, the walkway crossed an "internal drive of the hotel" to the sidewalk on Sunset Boulevard. While on the walkway, Logsdon heard Alexander Meikle say, "Hey, there's that faggot." Logsdon turned and saw Alexander in the patio. The Meikles struck Logsdon, who fell face down onto the walkway. Logsdon testified that when he fell, he was "[a] couple of feet, a couple of strides" from the sidewalk.
The Meikles picked up Logsdon and pushed him across the sidewalk into the street. Although Logsdon called for help, no Hotel security guard came to his assistance. The Meikles beat him as he moved along Sunset and then Sweetzer. When he screamed that they had broken his jaw, they ran away.
Logsdon's companion that night, Nathaniel Rhyne, testified that when he entered the Purple Lounge, he saw the Meikles at the bar's entrance, demanding that the hostess give them access to a table for which they had paid. According to Rhyne, the Meikles were "loud and boisterous," and "reeked of alcohol." He sat with Logsdon, Sui, and Shrimanker at a sofa that appeared to be unoccupied. The Meikles and their friends also sat on a portion of the sofa. After an interval, the Meikles appeared to shove Logsdon, who fell on Rhyne. A security guard directed the Meikles to move to the far end of the bar, and asked Logsdon's group to report further misconduct by the Meikles to him. Logsdon and Siu then disappeared into the crowd.
Rhyne further testified that after 45 minutes, Logsdon and Siu returned to the sofa. The Meikles and their comrades soon reappeared, and Bradford Meikle began throwing ice cubes at Logsdon's group. Because the guards ignored the misconduct, Logsdon's group decided to leave. When Logsdon stood up, the Meikles pushed him onto the glass table, which shattered. The guards then intervened and escorted Rhyne and Shrimanker out the bar's front exit. After waiting for three or four minutes outside the bar, they decided to search for Logsdon and Siu. They heard yelling, and discovered the Meikles on the sidewalk outside the Hotel. Nearby, Rhyne found Logsdon with an injured jaw.
The Meikles, whom Logsdon called as witnesses, provided a sharply contrasting version of the underlying events. According to the Meikles, they arrived at the Hotel with five friends between 11:00 p.m. and midnight. They had ordered alcohol in advance and had arranged for a private table. Upon entering the bar, they found Logsdon at the reserved table, which had sofa seating. A bar hostess asked Logsdon to vacate the table; he initially refused to cooperate, but eventually walked away. According to the Meikles, Logsdon was inebriated and belligerent. His eyes were glazed, he spoke incoherently, and he moved in a loose, drunken fashion. Sometime later, Logsdon approached a married female in the Meikles' group, and took her hand in a sexually aggressive manner. To deter Logsdon's conduct, Bradford gave Logsdon "a very light shove." A security guard intervened and separated them.
After approximately 45 minutes, Logsdon again sat down at the Meikles' private table. To get Logsdon's attention, the Meikles tossed some ice cubes at him. In response, Logsdon punched Alexander in the face, causing his lip to bleed profusely. Alexander pushed back at Logsdon, and both fell down. Security guards then escorted the Meikles and their group out of the bar and onto the patio.
On this matter, Alexander Meikle testified that only Bradford threw ice at Logsdon.
While one of the Meikles'group retrieved a credit card, the Meikles waited on the sidewalk of Sunset Boulevard, near the gate separating the patio and its walkway from the sidewalk. Alexander Meikle, who was standing near Sweetzer Avenue, tended to his bleeding lip. After a few minutes, Logsdon left the bar through the patio exit, walked past Bradford and rushed towards Alexander in an aggressive manner, shouting insults. In self-defense, Alexander pushed Logsdon away, and a shoving match began. Bradford separated them, grabbed his brother, and walked with him down Sweetzer Avenue. When Hotel guards began chasing them, Bradford stopped and Alexander ran away.
Chris McGoey, a security consultant, attributed the altercation between Logsdon and the Meikles to the guards' lack of training, as it appeared that none of the Hotel guards was licensed, as required under a West Hollywood ordinance. He opined that the guards should have asked at least one group to leave the bar when the Meikles first shoved Logsdon; that in lieu of ejecting the groups, the guards should have ensured that they remained apart; and that the Meikles should have been ejected when they threw ice cubes at Logsdon's group. He further opined that after the ice cube incident, the guards should have acted to ensure that the Meikles and Logsdon left the Hotel and its environs separately. According to McGoey, "the only reason [the] fight took place [was] because the Standard Hotel failed to meet its standard of care."
b. The Hotel's Evidence
Reginald Miner, the Hotel's director of guest relations, testified that on November 4, 2006, he was the night manager at the Hotel, and received a radio report of a fight in the Purple Lounge. In less than a minute, he entered the bar, where he saw his staff breaking up a shoving match between two men. Both men were on their feet. Miner and the security guards separated the men and began to direct the members of the opposing groups from the bar. According to Miner, the Hotel's policy was to separate combatants and expel them through different exits.
As the guards broke up the altercation and escorted the opposing groups out, Logsdon remained in the bar with Miner. According to Miner, when he asked whether Logsdon was okay, Logsdon replied that he was fine, but asked to use the bathroom before leaving the Hotel, and requested a drink of water. Although Logsdon appeared to be intoxicated, he was alert, walked normally, and wore both shoes. Logsdon did not complain of any injuries, and Miner saw no blood on him. Miner walked with Logsdon part of the way to the bathroom, then turned aside to get Logsdon a drink of water. Logsdon never returned to Miner to get the drink of water, Miner did not see Logsdon enter the bathroom or leave the hotel.
At some point, Miner received a "code four" radio signal, which meant that "all parties were off [the] property." Some minutes later, Miner received a report of a fight on the street corner near the Hotel. Outside the Hotel, Miner discovered Logsdon, who was injured. Miner and a security guard then chased the Meikles and detained one of them.
During cross-examination, Miner acknowledged that a guard was ordinarily posted at a "velvet rope" gate that blocked access from the street to the patio exit door. He did not know whether the guard was present when the parties left the bar, as the guard had responded to the fight that resulted in the parties' expulsion.
The jury also heard the deposition testimony of Kai Zander, a former Hotel employee who was unavailable to testify. According to Zander, the Meikles had purchased a bottle of alcohol, entitling them to a reserved table. When Zander led the Meikles' group to their table, she found Logsdon, whom she asked to find other seating. Logsdon appeared to be drunk, but complied with her request. According to Zander, Logsdon appeared to be "weird" and "creepy" as he approached women at the Meikles' table, and she asked the guards to keep an eye on him. Later, she heard a crash and saw the guards trying to end a fight. When told Logsdon had been involved in the altercation, Zander replied, "I'm not surprised."
Jason Dibler, an assistant manager at the Hotel, testified that in 2006, the Hotel maintained a number of security policies and procedures. The Hotel prohibited disorderly conduct, and ejected disruptive and intoxicated patrons; in addition, the Hotel assigned a security guard to patrol outside the Hotel, including some of the adjoining streets. Although patrons usually left the Purple Lounge through the dining room, the Hotel sometimes ejected rowdy patrons through the patio exit, which served as an emergency door.
Daniel R. Sullivan, a security expert, testified that generally security guards have no responsibility for occurrences off their employer's premises, although they may not tell combatants to "take it outside." Their principal responsibility is "to observe and report"; they are not expected to separate combatants unless it is reasonable to do so, and they have no authority to restrain patrons from leaving the premises when they want to depart. Sullivan acknowledged that the Hotel's security plan incorporated a roving security guard whose duties encompassed a patrol of the street corner adjoining the Hotel. According to Sullivan, the roving guard's responsibility was to "defuse" situations on the streets around the Hotel. Among the guard's duties was to call the police regarding fistfights, when discovered.
Sullivan opined that the Hotel guards properly decided not to eject Bradford Meikle after he first pushed Logsdon, as the altercation was verbal and no one was injured. He also opined that the Hotel guards could not prevent Logsdon from leaving the bar through the patio exit. According to Sullivan, in view of the period of time separating the Meikles' expulsion from Logsdon's departure, the Hotel had no reasonable expectation that their fight would resume on the street outside the Hotel.
c. Instructions, Closing Arguments, and Verdicts
Logsdon asked the trial court to give instructions on premises liability, including several form instructions (CACI Nos. 1000, 1001, 1002, 1005, 1007, 1011, and 1012), and a special instruction based on Delgado. Although the court elected to instruct the jury on the general principles of negligence, it denied the request for the form instructions, stating that "the theory of the case does not embrace the subset of negligence which is referred to as premises liability." Furthermore, in rejecting the special instruction, the court explained that its language reflected the "particular facts" of Delgado, and otherwise concluded that "the other basic negligence instructions suffice."
During closing arguments, Logsdon's counsel contended that the Hotel was negligent (1) in allowing Logsdon and the Meikles to sit at the same table, which resulted in the initial shoving incident, and (2) in failing to enforce their separation within the bar, which ultimately resulted in Logsdon's fall onto the table. Counsel further maintained that the Hotel was negligent in permitting Logsdon to exit through the patio without ensuring that the Meikles were not waiting for him. He noted that even Sullivan, the Hotel's security expert, agreed that the Hotel cou ld not "just tell [fighting patrons] to take it outside."
Although the Hotel's counsel asserted that the Hotel had not acted negligently, he focused his closing argument almost exclusively on whether the Hotel's conduct had been a substantial factor in the causation of Logsdon's injuries outside the Hotel. Pointing to the Meikles' testimony and other evidence, he maintained that regardless of the Hotel's conduct, it was more likely than not that the final fight would have occurred because Logsdon voluntarily sought the fight. Counsel argued that the evidence showed that after the guards broke up the fight within the bar, they expelled the Meikles through the patio exit and Logsdon's friends through the bar's main exit. Rather than following his friends, Logsdon remained in the bar, gave Miner "the slip," and left the bar through the patio exit. As counsel noted, although Logsdon could not know whether the Meikles were still outside the hotel when he left the bar, the Meikles' testimony, coupled with the other evidence, supported the inference that Logsdon was looking for them and wanted to resume the altercation.
After less than two hours of deliberations, the jury found the Hotel negligent, but concluded that its conduct was not a substantial factor in causing Logsdon's injuries. The jury's vote was 11 to 1 on the issue of negligence, and 12 to 0 on the issue of causation.
4. Analysis
On this record, we discern no reversible instructional error. The crux of Logsdon's argument is that had the jury received his requested instructions, it would have understood "exactly what [the Hotel's] duties were, how [it] breached them, and how that breach was the legal cause of the Meikles' [final] attack which resulted in [his] injuries." For the reasons explained below, we conclude the trial court properly declined to give the requested special instruction, which attempted to specify the Hotel's duties, as well as some of the form instructions. Furthermore, because the remaining requested instructions provided only general guidance on the Hotel's premises liability and Logsdon elaborated his theory of the Hotel's duties through his expert, we conclude there is no "'reasonable chance'" that Logsdon would have obtained a more favorable outcome had the requested instructions been given. (Kinsman v. Unocal Corp., supra, 37 Cal.4th at p. 682.)
We begin with the special instruction based on Delgado. "'Although a party is entitled to instructions on his [or her] theory of the case, if reasonably supported by the pleadings and the evidence, instructions must be properly selected and framed. The trial court is not required to give instructions [that] are not correct statements of the law or are incomplete or misleading [citation].'" (Norman v. Life Care Centers of America, Inc. (2003) 107 Cal.App.4th 1233, 1242, quoting Levy-Zentner Co. v. Southern Pac. Transportation Co. (1977) 74 Cal.App.3d 762, 782; Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1673.) Even if a portion of an instruction is correct, the trial court is ordinarily not obliged to rewrite the instruction to cure its defects. (L.A. County Flood etc. Dist. v. McNulty (1963) 59 Cal.2d 333, 337.)
Here, the proposed special instruction stated that the Hotel had a duty to warn Logsdon of the "known danger[]" of a third person attack, and that "in circumstances in which a warning alone [was] insufficient," the Hotel had a duty to take other reasonable measures, including "telephoning the police or 911 for assistance, or protecting Logsdon by providing an escort by existing security personnel to the patron's car in that parking lot'' (Capitals deleted.) Although the italicized portion reflects the facts in Delgado, it is inconsistent with the facts of the instant case. The evidence at trial unequivocally showed that Logsdon and Sui took a taxi to a restaurant near the Hotel and then walked to the Hotel. An instruction suggesting the Hotel had an obligation to provide Logsdon with an escort to his car in a parking lot would have confused rather than enlightened the jury. As the trial court was not required to rewrite the instruction to make it applicable to the facts of this case, its refusal to give the instruction was not error. (See Boeken v. Philip Morris, Inc., supra, 127 Cal.App.4th at p. 1673 [trial court correctly rejected proposed special instruction that lacked the word "'unadulterated'"].)
The proposed special instruction stated: "Defendant [Hotel] stood in a special relationship with [Logsdon] as he was [the Hotel's] patron, and hence [the Hotel] owed Logsdon a duty to undertake reasonable steps to secure its common areas against foreseeable criminal acts of third parties that were likely to occur in the absence of precautionary measures and to take such appropriate action as is reasonable under the circumstances to protect patrons. [The Hotel] has a duty to take affirmative action to control the wrongful acts of third persons which threaten invitees. In addition, [the Hotel] had a duty to warn patrons, including Logsdon, of known dangers and, in circumstances in which a warning alone is insufficient, [the Hotel] had a duty to take other reasonable and appropriate measures to protect Logsdon from imminent or 'ongoing' criminal conduct. These reasonable measures included telephoning the police or 911 for assistance, or protecting Logsdon by providing an escort by existing security personnel to the patron's car in that parking lot." (Capitals deleted.)
Additionally, two of the requested form instructions mischaracterized the Hotel's duties of care in the instant case. Logsdon asked the trial court to instruct the jury with CACI Nos. 1011 and 1012, which set forth a business's duty to inspect its premises. On these matters, CACI No. 1011 instructs that a business owner "must make reasonable inspections of the property to discover unsafe conditions. If an inspection was not made within a reasonable time before the accident, this may show that the condition existed long enough so that [the] owner using reasonable care would have discovered it." CACI No. 1012 attributes knowledge of an unsafe condition to the owner when an employee created the condition.
CACI No. 1011 states: "In determining whether [name of defendant] should have known of the condition that created the risk of harm, you must decide whether, under all the circumstances, the condition was of such a nature and existed long enough that [name of defendant] had sufficient time to discover it and, using reasonable care:
1. Repair the condition; or
2. Protect against harm from the condition; or
3. Adequately warn of the condition.
"[Name of defendant] must make reasonable inspections of the property to discover unsafe conditions. If an inspection was not made within a reasonable time before the accident, this may show that the condition existed long enough so that [a store/[a/an] [insert other commercial enterprise]] owner using reasonable care would have discovered it.]."
CACI No. 1012 states: "If you find that the condition causing the risk of harm was created by [name of defendant] or [his/her/its] employee acting within the scope of [his/her] employment, then you must conclude that [name of defendant] knew of this condition."
As applied to the facts of this case, these instructions incorrectly implied that the Hotel's general duty to maintain the safety of its premises, by itself, obliged the Hotel -- through its guards -- to mount "reasonable inspections" of the patio area for the presence of the Meikles. As the CACI use notes reflect, CACI No. 1011 is based in large measure on Ortega v. KMart Corp. (2001) 26 Cal.4th 1200, 1205-1207, in which our Supreme Court explained that a business's duty of maintenance includes a duty to make reasonable inspections for hazards such as fallen merchandise. (Use Note to CACI No. 1011 (2011) p. 638.) Although the duty of maintenance also incorporates the duty to protect patrons from third party misconduct, special considerations control the scope of the latter duty. (Delgado, supra, 36 Cal.4th at pp. 236-240.) Bars must maintain guards only when there is a history of criminal incidents establishing a "heightened" fores eeability of criminal activity; when a business is not required to hire guards, its "special relationship" with patrons may oblige it to protect a patron in ways that are reasonable under the circumstances. (Id. at pp. 236-247.)
In view of Delgado, the giving of CACI Nos. 1011 and 1012 would have been misleading and inaccurate, as it would have incorrectly suggested that in order to protect Logsdon from the Meikles, the Hotel guards were required to "make reasonable inspections of the property to discover unsafe conditions," that is, the Meikles. Although the Hotel did, in fact, routinely maintain a guard in the patio exit area, Logsdon did not show at trial that the Hotel was obliged to deploy guards there under the standards elaborated in Delgado, and he has attempted no such showing on appeal. Furthermore, to the extent the Hotel's special relationship with Logsdon obliged it to undertake other reasonable protective measures, these measures did not necessarily include inspections "to discover unsafe conditions."
The remaining form instructions (CACI Nos. 1000, 1001, 1002, 1005, and 1007) state certain broad principles regarding premises liability. In view of Logsdon's testimony that the final altercation began on the Hotel's patio walkway, his claims at trial implicated the Hotel's liability for the safety of its premises. Because the instructions do not duplicate the general negligence instructions that the jury received, but elaborate in some measure the rules applicable to Logsdon's theory of the case, the trial court erred in refusing his request for them. (Sesler v. Ghumman, supra, 219 Cal.App.3d at p. 225 ["[G]iving an instruction embodying a general rule does not justify refusing a more specific instruction applying the rule to the particular circumstances of the case.].) Nonetheless, as explained below, this error was not prejudicial.
CACI No. 1000 states: "[Name of plaintiff] claims that [he/she] was harmed because of the way [name of defendant] managed [his/her/its] property. To establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] [owned/leased/occupied/controlled] the property;
2. That [name of defendant] was negligent in the use or maintenance of the property;
3. That [name of plaintiff] was harmed; and
4. That [name of defendants negligence was a substantial factor in causing [name of plaintiff\s harm."
CACI No. 1001 states: "A person who [owns/leases/occupies/controls] property is negligent if he or she fails to use reasonable care to keep the property in a reasonably safe condition. A person who [owns/leases/occupies/controls] property must use reasonable care to discover any unsafe conditions and to repair, replace, or give adequate warning of anything that could be reasonably expected to harm others.
"In deciding whether [name of defendant] used reasonable care, you may consider, among other factors, the following:
(a) The location of the property;
(b) The likelihood that someone would come on to the property in the same manner as [name of plaintiff] did;
(c) The likelihood of harm;
(d) The probable seriousness of such harm;
(e) Whether [name of defendant] knew or should have known of the condition that created the risk of harm;
(f) The difficulty of protecting against the risk of such harm; [and]
(g) The extent of [name of defendant] s control over the condition that created the risk of harm; [and]
(h) [Other relevant factor(s).]"
CACI No. 1002 states: "[Name of plaintiff] claims that [name of defendant] controlled the property involved in [name of plaintiff\s harm, even though [name of defendant] did not own or lease it. A person controls property that he or she does not own or lease when he or she uses the property as if it were his or her own. A person is responsible for maintaining, in reasonably safe condition, all areas he or she controls."
CACI No. 1005 states: "[An owner of a business that is open to the public/A landlord] must use reasonable care to protect [patrons/guests/tenants] from another person's harmful conduct on [his/her/its] property if the [owner/landlord] can reasonably anticipate such conduct."
CACI No. 1007 states: "An owner of/A lessee of/An occupier of/One who controls] property must avoid creating an unsafe condition on the surrounding public streets or sidewalks."
In assessing the potential for prejudice from the failure to give the requested instructions, we examine the trial evidence, expert testimony, and arguments of counsel to determine whether there is a "reasonable probability" that the refusal to give the requested instructions "actually misled" the jury. (Soule v. General Motors Corp., supra, 8 Cal.4th at pp. 581-583.) Here, the jury was fully informed regarding Logsdon's theory of the case, insofar as it relied on the principles stated in the improperly rejected instructions. The latter stated several broad principles of premises liability, including that a business must maintain safety on property under its control, protect patrons from third party misconduct, and avoid creating hazards on adjoining sidewalks. The record discloses that the broad principles in question were communicated to the jury through the experts' testimony and the closing arguments. (Ibid. [failure to give specific instruction on causation was harmless error where jury was given general causation instruction, expert testified to lack of causation, counsel argued lack of causation and there was no evidence jury was misled as to defense theory regarding causation].)
Aside from receiving CACI Nos. 400 and 401, which described the basic elements of negligence and the duty of care, the jury received CACI No. 413, which stated that "customs or practices" could be considered in determining whether the Hotel acted reasonably. Regarding the security industry's customs and practices, the parties' experts testified that the Hotel guards were required to take reasonable steps within the bar to stop altercations, but disagreed over the particular actions required of the guards. With respect to the fight outside the Hotel, Logsdon's expert opined that the Hotel guards should have ensured that Logsdon and the Meikles left the Hotel and its environs separately. The Hotel's expert also acknowledged that the Hotel could not simply push a fight onto the adjoining streets, and that the Hotel guards had to try to separate adversaries in ejecting them. During closing arguments, Logsdon's counsel propounded a theory of the Hotel's breaches of duty based on the experts' testimony. The Hotel's counsel disputed that the Hotel had acted negligently, but mounted no attack on Logsdon's theory of negligence; instead, he emphasized the evidence that Logsdon intended to resume the fight regardless of the Hotel's conduct.
CACI No. 400, as given to the jury, stated: "[Logsdon] claims that he was harmed by [the Hotels's] negligence. To establish this claim, [Logsdon] must prove all of the following:
1. That [the Hotel] was negligent;
2. That [Logsdon] was harmed; and
3. That [the Hotel's] negligence was a substantial factor in causing [Logsdon's] harm."
CACI No. 401, as given to the jury, stated: "Negligence is the failure to use reasonable care to prevent harm to oneself or to others. [¶] A person can be negligent by acting or by failing to act. A person is negligent if he or she does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation. [¶] You must decide how a reasonably careful person would have acted in [the Hotel's] situation."
CACI No. 413, as given to the jury, stated: "You may consider customs or practices in the community in deciding whether [the Hotel] acted reasonably. Customs and practices do not necessarily determine what a reasonable person would have done in [the Hotel's] situation. They are only factors for you to consider. [¶] Following a custom or practice does not excuse conduct that is unreasonable. You should consider whether the custom or practice itself is reasonable."
As the parties effectively agreed on the broad principles asserted in the omitted instructions, the jury learned that the Hotel was required to take reasonable steps to protect its patrons, including steps intended to prevent the fight on the sidewalk outside the Hotel. Moreover, the record discloses no suggestion that the instructional error actually misled the jury. The jury accepted a material portion of Logsdon's theory of negligence, as it found that the Hotel was negligent by an 11 to 1 vote; it further and unanimously determined that the negligent conduct did not cause Logsdon's injuries. The jury thus appears to have concluded -- in accordance with the Hotel's closing argument -- that even if the Hotel had exercised appropriate diligence as the parties left the Hotel and its environs, the fight probably still would have occurred, as Logsdon was eager to resume it. Because there is no reasonable chance that Logsdon would have obtained a more favorable result had the requested instructions been given, we conclude that the instructional error was harmless. (Kinsman v. Unocal Corp., supra, 37 Cal.4th at p. 682.)
A. Hotel's Liability
Logsdon contends that the evidence at trial established the Hotel's liability for his injuries as a matter of law. We disagree. As explained below, the record contains substantial evidence supporting the jury's determination that the Hotel's negligent conduct did not cause Logsdon's injuries.
Generally, we review a jury's verdict for the existence of substantial evidence. (Gordon v. Strawther Enterprises, Inc. (1969) 273 Cal.App.2d 504, 511.) "Substantial evidence" is not "'synonymous with "any" evidence. It must be reasonable . . . , credible, and of solid value . . . .' [Citation.]" (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633.) However, on review for substantial evidence, "the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination [of the trier of fact], and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the [trier of fact]." (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874, italics deleted.)
The issue of causation is properly resolved by the jury, unless the evidence permits no reasonable disagreement concerning the existence of causation. (Rosh v. Cave Imaging Systems, Inc. (1994) 26 Cal.App.4th 1225, 1235.) Furthermore, the fact that a business proprietor or landowner breached its duty to safeguard a patron from third party misconduct does not, by itself, mandate a finding that the breach caused the patron's injuries. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780.) As our Supreme Court has explained in connection with this duty, "[n]o matter how inexcusable a defendant's act or omission might appear, the plaintiff must nonetheless show the act or omission caused, or substantially contributed to, her injury." (Id. at p. 780.) Thus, the foreseeability of an injurious assault, for purposes to establishing a duty to take protective measures, is insufficient to show that the defendant's breach of the duty actually caused the assault. (Id. at p. 777.)
Because the special verdict form did not require the jury to specify the Hotel's negligent act or acts, we will affirm the judgment upon the basis of implied findings that support the judgment and are properly supported by substantial evidence. (Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 792-793.) In this regard, the record supports an implied finding that the Hotel's negligence resided in its failure to ensure the adversaries left the Hotel and its environs in different directions. The record also supports an implied finding that this conduct did not cause Logsdon's injuries, that is, that the fight would have occurred even if the Hotel had expelled Logsdon through an exit other than the patio door and urged him to move away from the Hotel. Miner's testimony, coupled with other evidence in the record, raises the reasonable inference that Logsdon knew that the Meikles left the bar through the patio, and that he chose to follow them, rather than his friends who left through the bar's main exit. Furthermore, the Meikles' testimony raises the reasonable inference that Logsdon pursued the Meikles in the hope of resuming his fight with them. This evidence also supports an implied finding that if Logsdon had been expelled through a different exit, he would have looked for the Meikles outside the patio exit area, where they awaited a friend, and reinitiated the fight.
Logsdon contends that the Hotel's negligent conduct while he and the Meikles were inside the bar is necessarily relevant to the causation of his injuries. However, the Meikles testified that the guards quickly separated Logsdon from the Meikles after the initial shoving incident, and later promptly ejected the parties when Logsdon punched Alexander Meikle. In view of the Meikles' testimony, the jury could reasonably have concluded that the Hotel was negligent only in carrying out the expulsions.
Logsdon also suggests that no fight would have occurred on the sidewalk outside the patio exit area if the Hotel guard posted at the "velvet rope" gate had been at his station. However, in view of the evidence that upon spotting the Meikles, Logsdon initiated another altercation, the jury could reasonably have concluded that he would have resumed the fight in any event. In sum, as there is substantial evidence to support the jury's determinations, the record does not establish the Hotel's liability for Logsdon's injuries as a matter of law.
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, J.
We concur:
EPSTEIN, P. J.
SUZUKAWA, J.