Low, Ball & Lynch’s
WEEKLY LAW RESUME
July
14, 2005 Issue By: Ray Coates
Negligence - Duty of Business To
Protect Against Third Party Criminal Acts
Delgado v. Trax Bar & Grill
(June 30, 2026)
In torts, one of the more difficult issues is determining when a business
owner owes a duty to protect persons from criminal acts of third
parties. In Delgado, and a companion case,
Morris v. De La Torre, the California Supreme Court has attempted to
clarify under what circumstances a bar, restaurant, or other business
establishment, must take steps to protect patrons from criminals.
In Delgado, Plaintiff Michael Delgado and his wife visited Defendant
Trax Bar and Grill in
When Plaintiff and his wife reached the parking lot, there were 12-20 men
congregating in the lot. This was contrary to the bar’s policy of
dispersing such gatherings. Further, the second security guard, who
was supposed to patrol the parking lot, was gone. Joseph and his
companions followed Plaintiff into the parking lot and assaulted him.
Joseph was assisted by the group loitering in the parking lot. Plaintiff
sustained serious injuries from the attack.
Plaintiff filed a personal injury suit against Trax, Joseph, and
others. Joseph was convicted of a felony, filed for bankruptcy
protection, and was dropped from the action. Plaintiff proceeded to
trial against Trax, arguing that the bar was negligent in failing to protect
him. A jury found in Plaintiff’s favor. Trax moved for a new trial,
which was denied. Trax appealed, arguing that it had no duty, because the
attack was not foreseeable. The Court of Appeal agreed and reversed the
judgement in favor of Plaintiff.
The Supreme Court granted review to address the issue of duty. Duty is
a question of law to be decided by the court. As a general principal,
there is no duty to act to protect others from the conduct of third
parties. An exception to this rule has been carved out under limited
circumstances for business owners. In Ann M. v. Pacific Plaza Shopping
Center (1993) 6 Cal 4th 666, the Supreme Court held that business
proprietors such as shopping centers, restaurants, and bars owe a duty to their
patrons to maintain the premises in a reasonably safe condition. This
duty includes an obligation to secure common areas against foreseeable criminal
acts of third parties that are likely to occur in the absence of such
precautionary measures. The greater the burden to be placed on the owner;
the higher the degree of foreseeability. If the burden means hiring
security, which is a heavy burden on a business; a high degree of
foreseeability is required. The Court held in Ann M. that a high
degree of foreseeability equates to evidence of prior similar acts.
In Delgado, the Court of Appeal felt there was insufficient evidence of
prior similar acts, and therefore the attack was not foreseeable.
The Supreme Court, however, held that a proprietor that has no duty to
undertake burdensome measures may still owe a duty of care to perform certain
less burdensome actions, because a proprietor has a special relationship with
its’ patrons. Here, the Court held that the security guard at Trax
had actual notice of an impending assault involving Joseph and Plaintiff.
Because of the special relationship duty, the security guard had an obligation
to take relatively simple, minimally burdensome steps to avoid danger.
These steps included walking Plaintiff and his wife to their car; making sure
his partner was at his post; or maintaining separation of the involved parties,
by turning his attention to Joseph’s group. The Supreme Court,
therefore, held that there was sufficient evidence to support the jury’s
determinations of duty and causation. The Supreme Court reversed and
remanded the case back to the Court of Appeal.
COMMENT
This is a difficult decision for business owners. The Supreme Court’s
holding makes clear that a business may have a duty to take certain measures to
protect patrons or invitees from third party criminal acts, even if such an act
was not foreseeable. Businesses, such as bars and restaurants, will
need to diligently train their employees to be proactive when they have notice
of third party criminal conduct. While an employee has no duty to put his
or her own life in peril to protect a patron, it may mean calling 911 (Morris
v. De La Torre) or taking so-called “simple” steps to protect
the patron, as described in Delgado.
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