SUSAN GREEN,

Plaintiff,

vs.

MOE'S MARKET & GAS, a partnership, and DOES 1 through 50, inclusive,

Defendants.

/

CASE NO. BC 123456

PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, ALTERNATIVELY FOR SUMMARY ADJUDICATION SUMMARY OF ARGUMENT

California law recognizes that a business proprietor has an affirmative duty to protect its customers from foreseeable criminal acts on its premises, which includes a duty to investigate the likelihood of such occurrences. No case has yet established the parameters of the business proprietor's duty in terms of the security measures required. The cases indicate that the duty depends on foreseeability considering each case's facts, including the occurrence of prior similar incidents. The plaintiff is not required to show that the precise type of criminal conduct resulting in his injury had occurred before on the same premises.

A number of armed assaults and robberies had occurred on defendant's premises. Even if the exact number and defendant's notice of them are disputed, triable issues of material fact exist as to whether defendant breached its duty to plaintiff by failing to provide adequate security measures for its customers' protection.

Further, triable issues of material fact exist as to whether defendant's breach of its duty to provide adequate security was the legal cause of plaintiff's injuries. To defeat a motion for summary judgment, the plaintiff need only demonstrate that reasonable minds could differ as to whether the defendant's breach led to the plaintiff's injuries. Based on the undisputed evidence presented here, reasonable minds could differ as to whether enhanced security measures, such as security guards on the premises, would have deterred or prevented the attack.

Defendant also seeks summary adjudication on the issues of whether it had a duty to warn plaintiff and to provide armed guards. Plaintiff has nowhere alleged that a warning would have satisfied defendant's duty of care. Further, defendant's assertion that it had no duty as a matter of law to provide armed guards misinterprets the case law, which holds that the security measures a defendant must adopt to meet its duty depend on the facts and circumstances of each case, including the location of the business, security measures taken by other like businesses in the neighborhood, and the nature of prior incidents on the premises.

INTRODUCTION

Plaintiff alleges causes of action for premises liability and general negligence against defendant arising out of injuries she suffered when armed assailants attacked, robbed and abducted her in the parking facility of defendant's mini-market/gas station at approximately 5:00 a.m. on August 23, 2004. The relevant facts concerning the time of the incident, the appearance of the assailants, and their abduction of plaintiff are basically undisputed.

The disputed material facts relate to the notice defendant had concerning violent criminal incidents on its premises. Significantly, police records show that 25 violent crimes occurred on defendant's premises between 2000 and August 23, 2004, the date of the attack on plaintiff.⁽¹⁾ Yet defendant's records, including reports apparently formatted only to include reports of robberies and thefts of merchandise, reflect that only 16 robberies and attempted robberies of the cash register occurred during that same time period. This disputed evidence raises a triable issue of material fact as to whether defendant met its duty to exercise reasonable care to investigate crimes on its premises, as well as triable issues as to the foreseeability of attacks on customers and whether security guards could have deterred or prevented such attacks.

Additional undisputed material facts defendant did not raise show that defendant took extraordinary security measures to protect its cash receipts and cashiers during the time period when plaintiff's injury occurred. Defendant's policy for cashiers working at the facility between 10:00 p.m. and 6:00 a.m. was that the clerk would remain locked in the building for the clerk's personal safety, and not venture outside the store to check the premises, or open the door if an incident occurred. At the time of the incident in August 2000, defendant had a video camera operating 24 hours per day, set to view the area inside the store to record the events inside, but these surveillance cameras did not record a view of what occurred in the gas pumping area or parking lot. The monitor for this video camera, and any others set to record activities on the premises, was inside the manager's office, and could not be observed by the cashier as he worked at the pass-through window. Defendant's cashier on duty when plaintiff was attacked testified that it was his job only to work the cash register; he never checked the video monitor in the manager's office, and no manager was on duty that night.

It is also undisputed that, although Ms. Green parked her car in front of the store's door and took only approximately 10 seconds to walk back to her car after buying coffee from the cashier, the cashier saw no part of the assault on her. At the time of the incident, the mini-market's east window was obscured by either paint boxes or shelving, so that one could not see in or out of the window at a height of less than five or six feet. Records of 911 show no calls from the mini-market on the night of the incident reporting the assault on Ms. Green.

ARGUMENT

As a matter of law, the special relationship between a business establishment and its customers imposes on the proprietor an affirmative duty to take precautions to protect customers from third parties' reasonably foreseeable criminal conduct. Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d. 112, 123. Determining the scope of that duty depends, in part, on balancing the foreseeability of the harm to business patrons against the burden of the particular duty imposed on the proprietor. See Ann M. v. Pacific Shopping Center (1993) 6 Cal.4th 666, 678.

In Ann M., the plaintiff was raped in the defendant's shopping mall. The supreme court confined its review to the issue of whether the defendant's failure to provide security guards in its mall's common areas constituted negligence. Id., 6 Cal.4th at 673. The court assessed the defendant's duty to provide security guards by balancing the foreseeability of the rape and potential deterrence the presence of security guards would provide against the financial burden. Id., at 679. It concluded that under some circumstances the hiring of security guards might be required to satisfy the business proprietor's duty of care. It would require a high degree of foreseeability, which "rarely if ever can be proven in the absence of prior similar incidents of violent crime on the landowner's premises." Ibid.

A landowner's or business proprietor's duty of care encompasses the duty to exercise reasonable care to learn whether criminal acts are occurring--or likely to occur--on the premises. Ibid. In Ann M., the defendant maintained detailed records of crimes on the premises, which contained no record of any violent criminal acts before the plaintiff's rape. Although the plaintiff presented evidence that vagrants frequented the mall's common areas, she presented no evidence that her attacker was a vagrant. Based on these facts, the court concluded that the occurrence of violent criminal acts at the mall was not sufficiently foreseeable to impose a duty on the defendant to hire security guards to patrol the common areas. Ibid.

The court's task in examining foreseeability in this context

is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular 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.

Ballard v. Uribe (1986) 41 Cal.3d. 564, 573 fn.6.

Thus in Ann M., which involved robbery and rape, the supreme court framed the issue as to whether the defendant could foresee "violent criminal assaults." Ann M., 6 Cal.4th at 679.

In Lisa P. v. J. Gordon Bingham (Mar. 12, 1996) 96 C.D.O.S. 1664, 50 Cal.Rptr.2d 646,⁽²⁾ a gunman raped two store clerks after he took the store's receipts. Plaintiffs alleged general negligence, premises liability, and breach of their lease for failure to provide reasonable security. The First Appellate District reversed a trial court's entry of summary judgment for the defendant property owners and managers. The trial court's error lay in defining too narrowly as rape the injury the plaintiffs suffered, while ignoring the prior incidents on the premises of armed assault. Id., at 1665. Interpreting "similar prior incidents" to require instances of "identical" criminal conduct would allow each business owner at least "one free crime-rape, armed robbery, or whatever-per parcel, per owner. . . . [W]e understand the test enunciated by the Supreme Court in Ann M. to require foreseeability, not dead bang inevitability." Ibid.

Viewing foreseeability within the framework of each case's facts dissolves the apparent discrepancies among the appellate decisions concerning business proprietors' liability, or landlords' liability, for criminal acts resulting in harm to patrons, or to tenants. In Lopez v. McDonald's Corp. (1987) 193 Cal.App.3d 495, the court concluded that the defendant could not reasonably foresee the unique and horrific event of a deranged gunman's entering a fast-food restaurant in broad daylight and committing the worst mass murder in U.S. history. Id., at 509-510. Reviewing the totality of the circumstances, the court observed that a fast-food restaurant did not create a special lure for criminal conduct, as might a convenience store or parking lot, much less encourage a crime such as mass murder. Id., at 511. Following a similar analysis and line of reasoning, Thai v. Stang (1989) 214 Cal.App.3d 1264, concluded that a daytime, drive-by shooting at a roller rink was not sufficiently foreseeable to the defendant proprietor to impose a duty to protect its patrons from that type of harm. Id., at 1273. The facts of both cases indicate that, no matter how drastic the security measures the business proprietor might have taken, nothing could have prevented these types of sudden violent attacks.

Circumstances may occur where there are no reasonable security measures a business could employ to prevent injury to its patrons. A prime example of this is preventing sports spectators from being injured in altercations with drunks in a parking lot after a game attended by some 52,000 persons. See Noble v. Los Angeles Dodgers, Inc. (1985) 168 Cal.App.3d 912. But the criminal assault at issue here does not fall within this category of unforeseeable or unpreventable criminal conduct.

Analyzing the foreseeability of criminal conduct, the courts have recognized that a 24-hour convenience store/gas station may present a particular temptation and lure for criminal conduct. Lopez, supra, 193 Cal.App.3d at 511. In Cohen v. Southland Corp. (1984) 157 Cal.App.3d 130, the plaintiff was assaulted by an armed assailant in the defendant's convenience store parking lot, dragged into the store, and injured while struggling with the assailant. Based on a history of prior robberies at the store (although none resulted in injury), the court concluded that the plaintiff had sufficiently established the foreseeability of his injury for a jury to consider whether the defendant breached its duty to provide adequate security. Id., at 139.

The undisputed facts here establish that a violent criminal assault on a customer visiting defendant's mini-market/gas station at 5:30 a.m. was highly foreseeable. Police department records for the period from 2000 to the date of plaintiff's assault on August 23, 2004, reflect that 25 armed criminal assaults occurred on defendant's premises, several of which resulted in physical injuries. Defendant's own records report 14 robberies of the till and two attempted robberies between 2000 and the date of the incident. All but one of these incidents occurred between 10:00 p.m. and 6:00 a.m. Notably, defendant's reports list no incidents for 2000, not even that involving plaintiff. This fact and the reports' format suggest that defendant maintained records only of incidents involving merchandise and receipts, and did not concern itself with assaults on customers or incidents in the gas pumping and parking areas. This raises a triable issue of material fact as to whether defendant breached its duty to exercise reasonable care in learning whether criminal acts were occurring or were likely to occur on the premises.

The undisputed facts also show that defendant took strict measures to protect its till and the single employee it placed on duty at the time plaintiff's assault occurred. From 12:00 a.m. to 6:00 a.m., defendant's employees dealt with customers solely through a pass-through window. To ensure their safety, defendant instructed these employees not to leave the locked building to inspect the premises, and not to open the door for any reason. These instructions betray knowledge of a very dangerous neighborhood. If defendant's employees were in danger, surely its customers were as well. If it perceived a duty to its employees, it should have perceived a duty to its customers. Yet at the time of the incident, none of defendant's 24-hour security video cameras provided a view outside the locked building.

Other than providing lights in its parking and fuel pumping area, defendant had instituted no security measures to protect its customers. Defendant does not dispute it took plaintiff approximately 10 seconds to walk from the pass-through window to her car parked in front of the window, or that the premises had no other customers. Yet the cashier did not observe two men approaching plaintiff and forcing their way into her car. Defendant concerned itself greatly with the security of its employees and the safety of its incoming receipts. It did not exercise the same degree of care instituting security measures to protect its customers. Thus a triable issue of fact exists as to whether, in taking less care of its customers than of its receipts, defendant breached its duty to plaintiff.

The scope of the defendant's duty in each instance varies with the circumstances, including the history of prior similar incidents on the premises, the nature of the neighborhood, and the types of security measures other similar businesses in the vicinity employ. Contrary to defendant's assertion, Lopez did not hold as a matter of law that the maximum extent of any business proprietor's duty is to provide unarmed guards. Rather, Lopez found that the testimony of the plaintiff's expert witness established that this was the highest form of security the defendant should have provided under the circumstances, considering the predominantly theft-related crimes that had occurred on its premises, and the nature of the security measures other neighborhood businesses employed. Lopez, supra, 193 Cal.App.3d at 514. Observing that custom and practice in the relevant community can provide evidence of the required standard of care, the court noted that the other fast-food restaurant in the neighborhood employed only unarmed security guards, although the foreign currency exchanges (which could anticipate armed robberies) employed armed guards and additional security measures such as closed circuit televisions and alarm systems. Ibid.

The undisputed facts here establish that defendant's premises had a history of armed assaults and robberies. Triable issues of material facts exist as to the adequacy of the security measures defendant employed to meet its duty of care--including whether this required hiring armed or unarmed guards--because reasonable minds could differ as to this issue.

Once duty has been established, if evidence on causation is such that reasonable minds could differ as to whether there was a causal link between the duty breached and the injury suffered, then a triable issue of material fact exists that precludes summary judgment. See Nola M. v. Univ. of Southern California (1993) 16 Cal.App.4th 421, 428. The plaintiff need only show that the defendant's nonfeasance in some way contributed to his injuries. Lopez, supra, 193 Cal.App.3d at 515. Summary judgment may be proper only where reasonable minds could agree that meeting the duty claimed would not have deterred or prevented the plaintiff's injury. See Constance B. v. State of California (1986) 178 Cal.App.3d 200, 211-212 (plaintiff's alleged attack occurred because of dim lighting at roadside rest stop; summary judgment on causation of plaintiff's injury proper because reasonable minds could not differ as to whether a brighter light would have deterred this assault).

In the instant case, Joseph Smith, defendant's designated expert as the employee most knowledgeable as to security measures defendant's mini-markets employed, admitted that armed guards usually act as a deterrent to crime, and that defendant did employ armed security guards at its stores for short periods where the facility experienced a series of three to five incidents in a period of from four to six weeks. The police records of incidents on the premises in question reflect 25 armed attacks in the period from 1998 to the date of plaintiff's attack, with eight occurring in 2004. In contrast, defendant's reports record no incidents at this facility in 2004. The undisputed facts establish that defendant did provide armed security guards on its premises when it considered its cash receipts and employees at risk, but it did not consider the potential danger to customers who patronized its business.

The instant case parallels the facts in Lisa P., where the court of appeals held that summary judgment was improper on the issue of causation where reasonable minds could differ as to whether a security guard's presence on the premises might have deterred the attack on the plaintiff. Lisa P., supra, 96 C.D.O.S. at 1666. The nature of the assault on plaintiff here stands in sharp contrast to the assault at issue in Noble, which occurred in a parking lot as 52,000 people were leaving a baseball game with 69 security guards plus police personnel present, or in Lopez and Thai, where gunmen intent on murder opened fire in broad daylight with no warning. In this case, the assault on plaintiff occurred in an empty parking lot, at dawn, on premises that had experienced a number of similar armed assaults and robberies during the early morning hours over a period of years. For his own safety, defendant's cashier working the early morning hours when plaintiff's attack occurred dealt with customers only by means of a pass-through window because of the dangers of armed attack during those hours. But other than providing lights in the parking lot, defendant instituted no security measures to protect its patrons. Under these circumstances, reasonable minds could differ as to whether the presence of a security guard in the defendant's parking lot could have deterred the attack on plaintiff. Thus, defendant's motion for summary judgment must be denied.

A defendant is entitled to summary adjudication as to the issue of whether it owed a duty to the plaintiff (Code of Civil Procedure §437c(f)), but not as to the extent of that duty. The undisputed facts establish the foreseeability of an assault on a customer occuring on defendant's premises, particularly between midnight and 6:00 a.m. Defendant owed plaintiff a duty to protect her from reasonably foreseeable criminal conduct on its premises. Defendant's motion for summary adjudication requests a ruling not on the existence of that duty, but on its parameters: the security measures required of it to meet its duty of care. But no cases have established the extent of a business proprietor's duty to provide adequate security as a matter of law. Rather, the extent of the duty (for example whether security guards are required) depends on the circumstances, including a history of prior similar incidents on the premises. Ann M., supra, 6 Cal.4th at 677.

Plaintiff has never asserted that the mere provision of a warning would have sufficed for defendant to meet its duty of care under the circumstances. To the contrary, plaintiff has alleged that the security measures defendant employed, which affected customers, were limited to the lighting in the parking lot and gas pumping area, and were insufficient to protect defendant's customers from armed assault.

As to the duty to provide armed versus unarmed security guards, Lopez merely held that the defendant in that case had no duty to provide armed guards based on the incidents--primarily theft--that had occurred on its premises, and the custom and practice in that community, particularly for a similar business. Lopez, 193 Cal.App.3d at 514, fn. 15. In this case, considering that the history of prior incidents included armed robberies and assaults, an issue of fact arises whether an unarmed security guard could have adequately deterred that sort of crime, or protected plaintiff as well as himself. Since reasonable minds could differ over this issue, defendant's request for summary adjudication must be denied.

CONCLUSION

California courts have long since established that a business proprietor has a duty to protect its patrons from criminal conduct on its premises, and to investigate the likelihood of such occurrences. Foreseeability of particular criminal conduct on the premises depends on the overall circumstances, including prior similar occurrences. The undisputed facts establish that, based on prior incidents, defendant could and should have anticipated that violent criminal attacks would continue to occur on its premises and should have taken greater security measures at its mini-market to protect its customers. Reasonable minds could differ over whether plaintiff's attack would have occurred if defendant had employed effective security measures. Defendant's motion for summary judgment, or in the alternative for summary adjudication of issues, must be denied.

FOOTNOTES

1. References to the record have been deleted.

2. Lisa P. was depublished after this brief was prepared.

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