Daily Development for
Friday, October 20, 1995

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

LANDOWNER LIABILITY; CRIMINAL ATTACKS BY THIRD PARTIES; HIRING SECURITY GUARDS: Business owner who would not otherwise have duty to protect patrons from criminal attacks nevertheless has a duty, if it hire security guards, to exercise due care in selecting competent guards that will provide such protection. Trujillo v. G.A. Enterprises, Inc., 43 Cal. Rptr. 2d 36 (Cal. App. 1995)

Although some recent California authority has modified the earlier extensive duties of California landowners regarding criminal attacks on their premises, it is clear that there are some judges who are not ready to let the issue lie.

Plaintiff was injured in an attack by a group of toughs in a McDonald's restaurant. McDonald's had hired a security guard, and the guard was present, but had taken one attacker, a young girl, out of the restaurant, leaving the plaintiff exposed to subsequent attacks from the rest of the gang. Plaintiff alleged that the guard's negligence in dealing with the situation caused his injury, and further alleged that McDonald's was negligent in hiring the guard.

Here, the court stipulates that there was no evidence of prior criminal conduct - now a prerequisite to a duty of a landowner to protect guests from criminal attacks on premises. Nevertheless, the security guard had a duty inherent in his own function to protect the public, and the court holds that the restaurant owner can be liable if the guard failed to perform that duty because he had not been properly "selected."

Comment: The West notes on the case indicate that it stands for the proposition that the landowner had a duty of care to the patron to protect the patron from attacks. This is an incorrect interpretation. Nevertheless, California juries sometimes lack the inclination to pay attention to the fine points when there is a fat cat to be skinned and an injured plaintiff to reward. Recall California's recent "hot coffee" verdict in another McDonald's. This is why some California courts have become conservative in turning landowners over to juries on the question of whether the landowners should be liable for criminal attacks by third parties. Clearly, however, there are a few courts immune from this thinking.

There is, of course, the argument that the hiring of the gave patrons a "false sense of security" and that they therefore exposed themselves to danger that they otherwise would have avoided. The editor has no quarrel with this argument, but it was not a factor in the case at hand. The question here is whether the restaurant owner, in hiring the guard, undertook a greater duty to patrons than if it had hired no guard at all. Obviously, aside from making another raid on the McDonald's treasury, the case has the impact, if anything, of discouraging landowners from hiring guards. (By the way, the editor has not eaten a Big Mac or otherwise patronized McDonald's in twenty years and owns no company stock.)

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