Landry v. S.C. Beach Hotel Partners
Filed 5/30/13 Landry v. S.C.
Beach Hotel Partners CA6
NOT TO BE PUBLISHED IN OFFICIAL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
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publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
ROSEMARIE E. LANDRY,
Plaintiff and Appellant,
v.
S.C. BEACH HOTEL
PARTNERS LLC,
Defendant and Respondent.
H038246
(Santa Clara
County
Super. Ct. No. 110CV179291)
In
this action for premises liability, plaintiff Rosemarie Landry seeks review of
an order granting summary judgment to
defendant S.C. Beach Hotel Partners, LLC, which owns the Dream Inn Hotel
("Dream Inn") in Santa Cruz. Plaintiff contends that defendant had a duty
to protect her from the children who injured her on the stairway of hotel
property. We disagree and therefore
affirm the judgment.
Background
The
facts are undisputed. Plaintiff, a guest
at the Dream Inn, was descending the hotel stairs when three boys, also hotel
guests, passed by, accompanied by an adult.
Two of the boys grabbed her, causing her to fall and be injured.
On
February 4, 2011, plaintiff
filed a complaint for damages for personal injury against defendant, claiming
that the hotel was "negligently owned, maintained, managed and
operated," and that defendant had breached its duty to plaintiff by
failing to supervise its guests.
Defendant moved for summary judgment on the ground that the actions of
the boys in this case were not reasonably foreseeable and it therefore did not
owe plaintiff a duty to take measures to prevent plaintiff's injury.
The
trial court granted summary judgment, finding that defendant did not owe a duty
to plaintiff because defendant "had no reason to anticipate the wrongful
act(s) of third parties which caused plaintiff's injuries." The court entered judgment on February 1, 2012, followed by
plaintiff's timely appeal.
Discussion
1. Standard of review
Summary
judgment is proper if "all the papers submitted show that there is no
triable issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law."
(Code Civ. Proc., § 437c,
subd. (c).) A triable issue of material
fact exists "if, and only if, the evidence would allow a reasonable trier
of fact to find the underlying fact in favor of the party opposing the motion
in accordance with the applicable standard of proof." (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
A
defendant who moves for summary judgment bears the initial burden of showing
that the action or cause of action has no merit—that is, "that one or more
elements of the cause of action, even if not separately pleaded, cannot be
established, or that there is a complete defense to that cause of
action." (Code Civ. Proc., § 437c, subds. (a), (p)(2).) If the defendant makes a prima facie showing
that justifies a judgment in its favor, the burden then shifts to the plaintiff
to show that there exists a triable issue of material fact. (Aguilar,
supra, 25 Cal.4th at p. 850.)
On
appeal, we review the record de novo to "determine with respect to each
cause of action whether the defendant seeking summary judgment has conclusively
negated a necessary element of the plaintiff's case, or has demonstrated that
under no hypothesis is there a material issue of fact that requires the process
of trial, such that the defendant is entitled to judgment as a matter of
law." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334;
52, 58.)
In
this case, the only issue before us is whether defendant had a legal duty to
protect plaintiff from the cause of the injury she sustained on the
premises. Because the existence and
scope of defendant's duty are questions of law, we review them de novo. (Cabral
v. Ralphs Grocery (2011) 51 Cal.4th 764, 770; Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213 [
2. Duty of Proprietor
Generally, a landowner has a duty to
act reasonably in the management of his or her property " 'in view of
the probability of injury to others.' " (Garcia
v. Paramount Citrus Assn. (2008) 164 Cal.App.4th 1448, 1453, quoting Rowland
v. Christian (1968) 69
Cal.2d 108, 119.) Furthermore, "[a]
defendant may owe an affirmative duty to protect another from the conduct of
third parties if he or she has a 'special relationship' with the other
person." (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235.)
special relationship with its patrons. "Although they are not insurers of safety,
it is undisputed that owners or possessors of land, and particularly
innkeepers, have a duty of care to protect invitees or tenants from the
reasonably foreseeable criminal or tortious conduct of third persons. [Citations.]" (Gray
v. Kircher (1987) 193 Cal.App.3d 1069, 1073; see also Peterson v. Superior Court (1995) 10 Cal.4th 1185, 1206 [hotel
proprietors have a special relationship with their guests that gives rise to a
duty to protect them from unreasonable risk of physical harm].) That
duty of care includes taking "affirmative action to control the wrongful
acts of third persons which threaten invitees where the [owner] has reasonable cause
to anticipate such acts and the probability of injury resulting
therefrom." (Taylor v.
Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 121, see also
Cal.App.3d 799, 804.)
Here,
it is the scope of that duty which is at issue—namely, whether it extends to
protecting plaintiff from the kind of harm that occurred on the hotel
stairs. (Cf. Vasquez v. Residential
Investments, Inc. (2004) 118
Cal.App.4th 269, 280 [Vasquez]
["the question of a landlord's duty
is not whether a duty exists at all, but rather what is the scope
of the landlord's duty given the particular facts of the case"].) In assessing the scope of a duty owed
to a plaintiff it is necessary to determine the foreseeability of the
particular harm alleged. (
1213). Foreseeability, when analyzed to determine the existence or scope of a
duty, is a question of law to be decided by the court. (Ericson
v. Fed. Exp. Corp. (2008) 162 Cal.App.4th 1291, 1300; Delgado v. Trax Bar & Grill, supra,
36 Cal.4th at p. 237
[Delgado];
Ann M., supra,
Plaintiff contends that "the
methodology that trial and appellate courts must employ in addressing 'duty'
questions in cases of this sort" is set forth in Castaneda, supra, 41
Cal.4th 1205. In Castaneda, plaintiff sued the owners of the mobile home park where
he was a resident after he was shot and injured as the result of a gang
confrontation involving another tenant.
The question for the Supreme Court was whether the owners had a duty to
evict tenants who were gang members, or not to have rented to them in the first
place. The court concluded that refusing
to rent to suspected gang members would be contrary to public policy, and that
evicting such tenants would be excessively burdensome. (Id.
at pp. 1216-1219.) Finally, the court
decided that the possibility of gun violence at the mobile home park did not
rise to the level of "heightened foreseeability" required to impose a
"heavily burdensome duty such as hiring security guards" to prevent
violent criminal assaults. (
In its determination that the mobile
home park owners did not owe plaintiff a duty to protect him from the shooting
that occurred on the property, the court applied the balancing test used in
scope of the duty is determined in part by balancing the foreseeability of the
harm against the burden of the duty to be imposed.' " (Castaneda,
supra, 41 Cal.4th at p. 1213.) The court cited with approval
case, the court 1) identify "the specific measures the plaintiff
asserts the defendant should have taken to prevent the harm," 2) analyze
the financial and social burden of the proposed measures, 3) "identify the
nature of the third party conduct that the plaintiff claims could have been
prevented had the landlord taken the proposed measures," and 4) determine
how foreseeable it was that this conduct would occur. (118 Cal.App.4th at p. 285.) Then, the court
should balance foreseeability and burden to determine the scope of the
defendant's duty. The more certain the
likelihood of harm, the higher the burden a court will impose on a landlord to
prevent it; the less foreseeable the harm, the lower the burden a court will
place on a landlord. (
heightened foreseeability, but a minimal burden may be imposed upon a showing
of a lesser degree of foreseeability."
(Delgado, supra, 36 Cal.4th at p. 243.)
The
Supreme Court in Delgado explained:
"In circumstances in which the burden of preventing future harm
caused by third party criminal conduct
is great or onerous (as when a plaintiff, such as in Ann M., asserts the
defendant had a legal duty to provide guards or undertake equally onerous
measures . . . ) heightened foreseeability—shown by prior similar criminal
incidents or other indications of a reasonably foreseeable risk of violent
criminal assaults in that location—will be required. By contrast, in cases in which harm can be
prevented by simple means or by imposing merely minimal burdens, only 'regular'
reasonable foreseeability as opposed to heightened foreseeability is
required." (Delgado, supra, 36 Cal.4th at p. 243, fn. 24.)
Following Vasquez as approved in Castaneda,
we evaluate how foreseeable it was that this kind of harm would occur. (
"that the requisite degree of foreseeability rarely, if ever, can be
proven in the absence of prior similar incidents of violent crime on the
landowner's premises." (Ann M., supra, 6 Cal.4th at p. 679.) In that context, "[h]eightened foreseeability is satisfied by a showing of prior similar
criminal incidents (or other indications of a reasonably foreseeable risk of
violent criminal assaults in that location) and does not require a showing of
prior nearly identical criminal incidents." (Delgado,
supra, 36 Cal.4th at p. 245.) Both
parties assume the applicability of these standards, although neither regards
the boys' conduct as a violent criminal assault.
3. The Allegations of Plaintiff's Complaint
Because the
pleadings define the issues presented in a summary judgment proceeding, we
first examine the allegations set forth in the operative pleading, the first
amended complaint. Plaintiff asserted
only one cause of action, for premises liability. She alleged that she was a paying guest in
defendant's hotel, which defendant had "negligently owned, maintained,
managed, and operated." Plaintiff
alleged that defendant was responsible for supervising its guests and failed to
do so by allowing the children to "run around the premises unsupervised."
4. Defendant's Showing
In
support of its summary judgment motion defendant argued that it "did not
have a duty to supervise the children because their conduct was unforeseeable .
. . ." Defendant
submitted the declaration of Robin Donovan, general manager of the Dream
Inn. In her declaration Donovan stated
that she had knowledge of all complaints received at the Dream Inn over the
past seven years and was unaware of any reports of an assault or physical harm
caused by a hotel guest to another hotel guest.
Defendant maintained that because no incidents resembling the one
involving plaintiff had been reported to Donovan, there was no reason for it to
anticipate that plaintiff would be harmed in that manner.
The
evidence provided by Donovan's declaration was sufficient to meet defendant's
burden to negate the element of duty.
The declaration establishes that defendant had no reason to believe that
the children's exuberant activity was a problem that presented the threat of
harm to other hotel guests because the general manager was unaware of any
similar incidents in the past.
Therefore, staff at the Dream Inn had no reason to anticipate that one
would occur in the future. Without a
basis for anticipating an incident of this kind, defendant did not owe
plaintiff a duty to prevent it.
Plaintiff
protests that Donovan's declaration is insufficient to establish defendant's
entitlement to summary judgment because it does not show that defendant
"neither knew, nor should have known, that young boys running around
(especially in the stairwells) are sooner or later going to run down an
innocent little ol' lady." She
argues that the evidence proves only that "no complaint had been
received," not that no similar incident had occurred. The key here, however, was to show that
Donovan did not have any knowledge of
similar events occurring in the past.
Her declaration accomplished that purpose.
Plaintiff
also argues that an innkeeper would have "reasonable cause to anticipate
such acts and the probability (inevitably, if one goes to the well often enough!)." However, plaintiff's point (made at the
hearing without supporting evidence) that a number of young children frequent
the hotel instead lends support to defendant's assertion that it had no reason
to anticipate an accident of this kind.
Despite the multitude of children "running around excited to get to
the beach," the general manager asserted that to her knowledge, an injury
of this kind had never occurred in the hotel.
It would be difficult, then, operating with the same conditions it
usually does, to foresee what extraordinary event could occur within the
hotel. As we have already concluded,
Donovan's declaration was sufficient to establish that she was unaware of any
incidents of this nature occurring at the Dream Inn and therefore had no reason
to anticipate them.
Plaintiff additionally contends that defendant did not
meet its burden because it failed to "pin down [plaintiff] to any more
specific duty claim." The
"root of the problem," according to plaintiff, is defendant's failure
to supply evidence of "the specific action or actions plaintiff claims
[that defendant] w[as] obligated to take."
Failing to "pin down" plaintiff means, in her view, that
defendant had to negate "the existence of any duty." Plaintiff misses the mark entirely. It was not defendant's obligation to determine
what duty of care defendant had toward her; it was to negate the existence of
the duty alleged by the plaintiff.
Nor was it defendant's obligation to offer analysis regarding "less
burdensome measure[s]" plaintiff never asserted defendant should have
taken. Thus, plaintiff cannot fault defendant for her own
failure to identify the specific duty defendant allegedly breached.
Likewise, her effort to impose this obligation on the
trial and appellate courts is unavailing.
The court is required to "identify the specific action or actions
the plaintiff claims the defendant
had a duty to undertake." (
at p. 285 [court must identify specific measures plaintiff asserts defendant should have taken to prevent the
harm].) But here plaintiff claimed no
such specific action or actions. The
burden was on the plaintiff to allege with specificity the measures defendant
should have taken to prevent the accident.
(Castaneda,
"supervise" hotel guests in its complaint; consequently, it is only
this proposed action we are required to address.
Plaintiff's indirect allegation of duty was no more
specific than that of supervision.
Defendant offered (and refuted) the theory that security guards should
have been posted; plaintiff, however, rejects that theory, calling it a
"false issue" and a "red herring." Consequently, we need not consider the
viability of that suggested theory.
Instead,
appellant contends that the question presented here is a "generic
version" of the duty to provide security guards. What appellant means by "generic
version" is unclear. We will not speculate as to its meaning, as it is not this
court's duty to "develop arguments [that] are merely suggested." (Tate v. Saratoga Savings & Loan Assn. (1989) 216 Cal.App.3d 843, 855-856; see also
v. Redwoods Associates, Ltd.
(1994) 28 Cal.App.4th 888, 891, fn. 1 ["We will not develop the appellants' arguments
for them"].)
The most specific suggestion plaintiff makes—again,
indirectly, by asserting that defendant was obligated to conceive and refute
it—is that defendant "needs to 'rule out' duties to take less burdensome
steps such as posting signs, emphatically warning parents that they will/may be
held legally liable if their children cause harm or damage, and the like."
argument is flawed. First, posting signs
and other measures to warn parents to supervise their children can hardly be
considered to be within the scope of her complaint, where she alleged that
defendant itself failed to supervise its guests. However, even if the allegation of negligent
supervision could be broadly construed to encompass warning signs on the
premises, we have already concluded that the behavior of the boys was
unprecedented and thus defendant did not have a duty to anticipate the harm
that occurred.
Aside from warnings to adult guests,
which we have already noted were not alleged in her complaint as a safety
measure defendant was obligated to undertake, plaintiff suggests no other acts
defendant could have taken to prevent the accident on the stairs. Defendant attempted to address the prospect
of security guards, but, as we observed earlier, plaintiff insists that this is
a "false issue" and a "red herring." In any event, hiring an additional staff
member to be posted on the premises would not be compelled in light of the
financial and social burden of such a measure. (See Vasquez, supra,118
Cal.App.4th at p. 285; cf.
238 [discussing monetary and social costs to proprietor in hiring security
guards].)
Because
we have found that the children grabbing plaintiff, causing her to fall, was
not a foreseeable event, the extent of the burden to defendant is essentially
irrelevant. The only way to balance a
scale that bears no weight on one side is to leave the other side empty as
well. The injury here was not foreseeable,
and therefore we will not impose on defendant the burden of preparing for the
unknown. " 'If there is no duty, there can be no liability, no matter
how easily one may have been able to prevent injury to
another.' " (
Cal.App.4th 1291, 1305, quoting Margaret W. v. Kelley R. (2006) 139
Cal.App.4th 141, 150.) Defendant
established that its duty to plaintiff did not extend to protecting her from
the unforeseeable actions of the children in this case. The burden then shifted to plaintiff to show
a triable issue of material fact on the issue of duty. (Code
Civ. Proc., § 437c, subd. (p)(2).)
5. Plaintiff's Opposition
While
past similar acts are not required to establish foreseeability, appellant has
put forth no affirmative evidence suggesting that the actions of the children
were foreseeable. Instead, she merely
suggests, without any support or evidence in the record, that "young boys
running around (especially in the stairwells) are sooner or later going to
result in the kind of harm suffered by plaintiff." The presence of children on the premises,
without more, is not sufficient to cause the hotel staff to anticipate an
incident such as the one presented here.
The hotel had no reason to foresee an incident of this kind, and thus
had no duty to assume the burden of supervising its guests. If there was a triable issue of fact on this
point, it was plaintiff's obligation to raise it through admissible evidence. She failed to do so.
Because
defendant negated the duty element of plaintiff's negligence claim and
plaintiff failed to show a triable issue of material fact on that element, her
complaint was properly adjudicated through summary judgment.
Disposition
The
judgment is affirmed.
_____________________________
ELIA,
J.
WE CONCUR:
____________________________
RUSHING, P.
J.
____________________________
PREMO, J.
name="_ftn1" title="">[1]
In her complaint, plaintiff alleged that the
fall caused a broken collarbone "among other injuries." In her deposition, however, she described her
injury as a broken arm.
shopping center had a "special relationship" with its tenants and
patrons which encompassed a duty to undertake "reasonable steps to secure
common areas against foreseeable criminal acts of third parties . . . likely to
occur in the absence of such precautionary measures." (Ann M., supra, 6 Cal.4th at p.
674.) Here, however, plaintiff does not allege that
the boys' conduct was a criminal act; therefore, we are not considering the
issue of security measures against foreseeable crime, as in
to post security guards, as in that case.
