Delgado v. Trax Bar & Grill

[EDITORS' NOTE: REVIEW GRANTED BY THE CALIFORNIA SUPREME COURT; PURSUANT TO RULES 976, 976.1 and 979 OF THE CALIFORNIA RULES OF COURT, THIS OPINION IS NOT CERTIFIED FOR PUBLICATION. THE SHADED TEXT BELOW REPRESENTS THE ORIGINAL OPINION AND IS PROVIDED FOR REFERENCE PURPOSES ONLY.]

This is an appeal from a judgment entered on a jury verdict awarding damages to plaintiff Michael Woolery Delgado. On appeal, defendant Trax Bar Grill (Trax) contends that it had no legal duty to prevent the criminal assault that caused Delgado's injuries. We agree and will reverse the judgment. As a result, the cross-appeal, which raises issues concerning the measure of damages, becomes moot. *Page 264 Facts and Procedural History Although many of the preliminary facts and details of the incident were the subject of conflicting testimony, the evidence established that Jacob Joseph followed Delgado out of Trax, a restaurant and bar in Turlock. He confronted Delgado and, when it appeared there would be a fight, Joseph called out in Assyrian to other men in the parking lot. These men, some 12 to 15 in number, began beating and kicking Delgado. He escaped briefly and ran from the premises. One of the men caught up with him and tackled him. The beating and kicking resumed, and then Joseph hit Delgado in the head several times with a baseball bat. Delgado was rendered unconscious and was hospitalized for 16 days. Joseph was arrested at the scene and subsequently was convicted of felony assault on his plea of no contest.

Delgado sued Trax and others. The matter came to trial against Trax only on a premises liability theory. The jury returned a special verdict finding that Trax was negligent, its negligence was a cause of Delgado's injury, and Trax was 100 percent at fault. The jury awarded economic damages of $81,391.61 and awarded nothing for noneconomic damages (including pain and suffering). Judgment was entered accordingly.

Trax filed a timely notice of appeal; Delgado cross-appealed.

Discussion "The existence of a duty is a question of law for the court. [Citations.] Accordingly, [on appeal] we determine de novo the existence and scope of the duty." (Ann M. v. Pacific Plaza Shopping Center (1993)6 Cal.4th 666, 674 (hereafter Ann M.).)

"[A] duty to take affirmative action to control the wrongful acts of a third party will be imposed only where such conduct can be reasonably anticipated." (Ann M., supra, 6 Cal.4th at p. 676.) "[F]oreseeability is a crucial factor in determining the existence of duty." (Ibid.)

Prior to the Supreme Court's decision in Ann M., California required that "foreseeability, for [premises liability] purposes, could be established despite the absence of prior similar incidents on the premises. [F]oreseeability should be assessed in light of the `totality of the circumstances,' including such factors as the nature, condition and location of the premises." (Ann M., supra, 6 Cal.4th at p. 677.)