PHILLIPS v. PERILS OF PAULINE FOOD PRODUCTION INC

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Court of Appeal, Fourth District, Division 1, California.

Joseph PHILLIPS et al., Plaintiffs and Respondents, v. PERILS OF PAULINE FOOD PRODUCTION, INC., Defendant and Appellant.

No. D017359.

Decided: August 31, 1994

Jack H. Kaufman, San Diego, for plaintiffs and respondents. Chapin, Fleming & Winet, Edward D. Chapin, Shirley A. Banner, Vonnie L. Hansen, Aiken & D'Angelo and James A. D'Angelo, San Diego, for defendant and appellant.

Perils of Pauline Food Production, Inc., a California Corporation, d.b.a. Saska's (Saska's) appeals a judgment entered after a jury found it had breached its duty to take reasonable security measures to protect the safety of its customer Joseph Phillips, a victim of an assault and battery, while using Saska's parking lot located approximately 234 feet from the restaurant and provided exclusively for its customers.   Saska's contends:  (1) it owed no duty to Phillips and is not liable for any injuries or damages claimed by him;  (2) even assuming such a duty existed, there is no evidence Saska's breached that duty as the attack was unforeseeable and its nonfeasance was reasonable under the circumstances;  (3) there is no causal link between Saska's nonfeasance and Phillips's injuries;  and, (4) the trial court committed prejudicial error in allowing an opinion and documentary evidence of subsequent criminal activity.   As we shall explain, Saska's had a duty to take reasonable security measures to protect the safety of Phillips while using its parking lot as a matter of law and that substantial evidence supports the jury's verdict Saska's breached that duty and its nonfeasance was the proximate cause of Phillips's injuries.   Because we conclude any error in allowing documentary evidence of subsequent criminal activity was harmless, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Saska's operates a restaurant located in Mission Beach area of San Diego, California.   At approximately 1:45 a.m. on September 26, 1990, Phillips was assaulted and beaten by three males while retrieving his car from the parking lot provided and controlled by Saska's exclusively for its patrons.   For years prior to the assault, Saska's encouraged late night dining and drinking through advertising, as it is one of a few restaurants in San Diego County which serves meals as late as 3 a.m. and alcoholic beverages as late as 2 a.m.   Given its late hours of operation and Saska's knowledge its patrons used its parking lot after midnight while it was still serving food and beverages to its customers, the only security measures it had taken during the years before the assault were to have the parking lot paved, bumper-guards installed and one light in the rear of the parking lot installed in addition to a street light along the peripheral of the street.   The restaurant and parking lot were surrounded by a mixed residential business area in which all the surrounding businesses were typically closed by midnight.

Phillips was a regular patron of Saska's for several years before the assault, using the parking lot it provided on all occasions and often late at night with no incidents.   He was a member of the San Diego Chargers football team.   Saska's solicited him to patronize the restaurant, because it believed it was good for business to have professional football players as patrons.

The incident began as a mere exchange of words between the assailants in a car and Phillips's female acquaintance while they were walking to the parking lot from Saska's restaurant and gradually escalated in verbal intensity until Phillips reached his car in the parking lot.   The assailants drove their car into the parking lot and one of them got out and continued the verbal exchange with Phillips and his female acquaintance.   The assailants momentarily backed their car out of the lot, then reentered the lot, got out of their car and again exchanged words.   The assault then began and extended over several minutes, as Phillips was struck to the ground, sustained numerous blows by both fists and feet, and suffered substantial injuries.   Phillips delivered no blows to the assailants.   His female companion was also struck to the ground.   The assailants then kicked and punched in all the windows and door panels on Phillips's rental car.   The assault ended when a neighbor heard the commotion and went to investigate.   Upon seeing the woman struck, the neighbor intervened, was hit and chased by one of the assailants.   After retrieving a bat from his house, the neighbor returned some 30 seconds later to break up the assault, but the assailants had fled.   As a result of the battery, Phillips required two artificial plates of titanium and silicone to be placed permanently in his head.

On February 8, 1991, Phillips sued Saska's as well as Scott Edward Stewart, Brett Dost and David Hanna, the assailants.   On May 9, Saska's answered the complaint and filed its cross-complaint for comparative indemnity and declaratory relief against Phillips and the remaining defendants.   On June 6, Phillips filed his general denial to the cross-complaint.   Judgment was entered against Stewart and Dost on December 16.   Trial commenced on April 20, 1992.   The jury returned its special verdict on April 27, assessing 10 percent of the liability for the incident upon Saska's and 30 percent of the liability on Hanna, Stewart and Dost respectively.   The jury returned its special verdict on damages on April 30, awarding Phillips $250,000 for past pain and suffering;  $250,000 for future pain and suffering;  $61,310 for past medicals;  $61,000 for future medicals;  and $170,000 for past loss of earnings.   Punitive damages were assessed at $32,000 against Hanna.   On May 13, judgment against Saska's was entered in the amount of $342,310, and judgment against Hanna was entered in the amount of $824,310 plus attorney fees of $49,459.1  Costs of $6,607.84 were to be jointly and severally shared by all defendants.   Notice of entry of judgment was filed on May 21.

Saska's moved for judgment notwithstanding the verdict on the ground the court should have rendered judgment in favor of Saska's as a matter of law because there is no substantial evidence to support the jury's verdict and a directed verdict for Saska's should have been granted.   Saska's further moved for a new trial on the ground there is insufficient evidence to justify the verdict and an order of the court prevented it from having a fair trial.   On June 25, Saska's motions were denied.

During trial, it was revealed that in 1990, Saska's and its parking lot were located in a crime census track which was conceded by Saska's to be a high crime area.   The 1990 crime statistics of the San Diego Police Department records showed the Mission Beach census track to be one of the highest areas of crime against the person, i.e., aggravated assault, in San Diego County.   More precisely, Saska's and its parking lot were located in a crime area that in 1990 was in the top 20 of 208 census tracks in San Diego County and well above the FBI average for aggravated assaults.   Saska's security expert at trial conceded the crime rate in the Mission Beach census track was increasing dramatically during the years before the Phillips assault, in fact almost doubling, and that the census track in which Saska's and its parking lot were located was higher in crime than the San Diego County average.

Before Phillips's assault, Saska's provided no additional nighttime security for patrons using the parking lot, such as a valet parking attendant, a parking attendant, closed-circuit camera or other means to communicate between the parking lot and the restaurant.   Saska's had provided a parking attendant during daylight hours only for several summers before the assault in order to keep “beach goers” out of the parking lot.   While there had never been a reported assault in the parking lot itself before the Phillips assault, Saska's expert acknowledged there had been several assaults and batteries and crimes against the person in the immediate vicinity between Saska's and the parking lot in the three-year period before the incident and several dozen crimes against property.   In addition, during the several years before the assault, neighbors who lived and worked adjacent to the parking lot had seen assaults and batteries involving fights, weapons drawn, or other disturbances involving hostile conduct in Saska's parking lot late at night.   Two neighbors who lived next door to the parking lot had complained to Saska's management about after midnight hostile disturbances on at least four separate occasions within two years of the Phillips assault with no response from the latter.2

Newport Annie's, another restaurant in the Mission Beach area, served food and alcoholic beverages as late as 11 p.m. and 2 a.m. respectively.   Located within two blocks of Saska's, it also has a parking lot of similar size open until 11 p.m., separated by some walking distance from the restaurant itself, for which it has provided since 1989 a parking attendant during the hours it is open for dining.   During that time, Newport Annie's never experienced any criminal assaults or other crimes against its customers while using its parking lot.   Saska's manager knew of Newport Annie's use of a parking attendant at night.

An assault and battery had occurred in the restaurant within three years before the Phillips assault.   Saska's security manager had been aware of assaults in the general Mission Beach area before the Phillips assault, as well as gang activity during the prior summer.

At the time of the Phillips assault, Saska's had a policy its managers and employees would go to the assistance of customers in distress in the parking lot or restaurant.   There were five employees on duty at the time of the incident, including the manager.   The parking lot was within a one to three minute walk from the restaurant.

Immediately before the incident, Phillips had been seen by Saska's manager to be acting in a normal, nonhostile manner.   He had consumed food and shared one alcoholic beverage for approximately 30 to 40 minutes.   He did not appear to need assistance in exiting the restaurant, although on another occasion Saska's manager had provided assistance to him in departing from Saska's after drinking in the late evening hours.

Phillips's security expert at trial opined Saska's parking lot at the time of the assault was in unreasonably dangerous condition for use by customers such as Phillips in the late night and early morning hours and that security measures were not reasonably adequate.   He testified additional specific security measures should have been taken to reduce or deter the threat of criminal assault and battery such as suffered by Phillips, including a valet parking lot attendant, a parking lot attendant, enhanced lighting, a fence and/or closed-circuit television monitor.

AS A MATTER OF LAW SASKA'S HAD A DUTY TO PROTECT PHILLIPS AGAINST REASONABLY FORESEEABLE HARM

Saska's first contends as a matter of law it had no duty to protect Phillips against random criminal acts by unknown third parties.   Citing Lopez v. McDonald's Corp. (1987) 193 Cal.App.3d 495, 504–505, 238 Cal.Rptr. 436, Saska's acknowledges that any “duty” analysis begins with the fundamental policy embodied in Civil Code section 1714, providing liability for injuries to another caused by one's failure to exercise ordinary care under the circumstances and that “[t]he special relationship between a business establishment and its customers as a matter of law places an affirmative ‘duty’ on the proprietor to take reasonable precautions to protect patrons from reasonably anticipative criminal conduct of unknown third parties.”   However, Saska's asserts it could not have reasonably anticipated the criminal conduct which occurred in this case.   Further, Saska's argues the factors listed in Rowland v. Christian (1968) 69 Cal.2d 108, 113, 70 Cal.Rptr. 97, 443 P.2d 561, warrant limiting liability as a matter of law under the circumstances of this case.   As we shall explain, we conclude as a matter of law liability should not be precluded here.

 As explained in Lopez v. McDonald's Corp., supra, 193 Cal.App.3d at pages 506–507, 238 Cal.Rptr. 436, the question of “duty” is one of law decided by the court which applies the Rowland analysis of landowner liability of weighing the foreseeability of harm with a non-exhaustive list of other factors and policy considerations to determine whether liability should be restricted under the factual circumstances of the case at hand.

“Within this analysis, the ‘court's task—in determining “duty”—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.’  [Citation.]   Viewed in this light, the question of foreseeability in a ‘duty’ context is a limited one for the court, and readily contrasted with the fact-specific foreseeability questions bearing on negligence (breach of duty) and proximate causation posed to the jury or trier of fact.  [Citation.]”  (Lopez v. McDonald's Corp., supra, 193 Cal.App.3d at p. 507, 238 Cal.Rptr. 436, fns. omitted.)

Consequently, foreseeability is but one factor to be weighed in determining whether a landowner has a duty in a particular case and is an elastic factor within a somewhat flexible concept.  (Id. at p. 509, 238 Cal.Rptr. 436.)   We review the totality of circumstances including the nature, condition and location of Saska's premises in light of the firmly established rule that “what is required to be foreseeable is the general character of the event or harm ․ not its precise nature or manner of occurrence.  [Citations.]”  (Id. at p. 509, 238 Cal.Rptr. 436.)   Finally, in determining whether any departure is made from the fundamental principle of liability, we balance the foreseeability of harm to the plaintiff with other factors, including

“the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.  [Citations.]”  (Rowland v. Christian, supra, 69 Cal.2d at pp. 112–113, 70 Cal.Rptr. 97, 443 P.2d 561;  Becker v. IRM Corp. (1985) 38 Cal.3d 454, 467, 213 Cal.Rptr. 213, 698 P.2d 116;  Lopez v. McDonald's Corp., supra, 193 Cal.App.3d at p. 505, 238 Cal.Rptr. 436.)

 Guided by the foregoing, we conclude as a matter of law the trial court correctly imposed a duty on Saska's to provide adequate security for its customers who use its exclusive parking lot, given the foreseeability in a general context of this risk of harm and that a review of the Rowland factors do not warrant limiting liability here.   Regarding foreseeability, the record is replete with evidence the Mission Beach area in which the restaurant and parking lot are located was a high crime area at the time of the Phillips assault, a characterization conceded by both Saska's security expert and counsel.3  Saska's manager was well aware of assault and batteries occurring not only in the Mission Beach area, but also one at the restaurant within three years before the Phillips assault.   Saska's manager in charge of security was also aware that several months before the Phillips assault there had been gang activity in the Mission Beach area.   Two neighbors residing immediately adjacent to the parking lot had telephonically complained to Saska's management late at night about hostile disturbances occurring in the parking lot within two years before the Phillips assault.4  Similarly, another resident and business owner in the immediate area testified he had seen fights occurring in the parking lot on numerous occasions, approximately once a month at night, and had seen weapons displayed in the parking lot and noticed damage to property within the parking lot.   Mindful of the location of the parking lot a substantial distance away from the restaurant, Saska's manager also knew before the Phillips assault that another nearby restaurant, Newport Annie's, which served dinner and drinks late at night and had a parking lot open until 11 p.m. separated from the restaurant by a city block, had a parking attendant to watch over the parking lot and customers using it.   That restaurant, which had been operating since 1989, had not had any incidents of criminal assault or other misconduct against a customer while using its parking lot.   Finally, it is undisputed that Saska's was one of a minority of restaurants that served dinner and drinks until 3 a.m. and 2 a.m. respectively and the parking lot was provided for the customers' exclusive use at night.   Saska's was fully aware the other businesses in the area were closed in the early morning hours, increasing the reasonable foreseeability its late evening patrons could encounter criminal conduct.   Consequently, the trial court correctly determined in a general context Phillips's injuries here were reasonably foreseeable because the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced by Phillips thus warranting liability be imposed on Saska's.

 The remaining Rowland factors support the imposition of duty here, rather than warrant limiting of liability.   More precisely, regarding moral blame attached to Saska's conduct, a trier of fact could reasonably infer Saska's management ignored repeated warnings from neighbors complaining of hostile disturbances within the parking lot and had not conducted a reasonably diligent investigation which would have disclosed to it the numerous incidents of criminal misconduct occurring in or near the parking lot and the reasonably foreseeable nature of the risk of harm.   Granted, the concept of moral blame attaching to Saska's nonfeasance may be considered weak in the context of third-party criminal conduct.  (See Thai v. Stang (1989) 214 Cal.App.3d 1264, 1273, 263 Cal.Rptr. 202;  Lopez v. McDonald's Corp., supra, 193 Cal.App.3d at p. 512, 238 Cal.Rptr. 436.)   However here, an assaultive crime was of the general nature reasonably anticipated from the evidence, replete within the record, of the high crime character of the area.   Consequently, moral blame may attach to nonfeasance occurring despite actual or constructive notice of the impending nature of the risk of harm involved.

The degree of certainty Phillips suffered injury is undisputed;  however, Saska's challenges the closeness of the connection between its conduct and Phillips's injuries.   But, the record amply supports a finding of a causal nexus between Saska's nonfeasance and Phillips's resulting injuries, where reasonable precautions could have likely deterred the assailants or protected Phillips from harm.   Phillips's expert opined Saska's security measures were inadequate and the parking lot was in a dangerous condition for use by patrons late at night at the time of the Phillips assault.   He suggested such security measures as a parking lot attendant or a parking valet, measures which could have deterred or reduced the injuries suffered by Phillips.   Indeed, by providing a parking valet and door-to-door service between the restaurant and the parking lot, Saska's could have furnished the necessary protection for its patrons not by going to their aid if they were attacked by criminals, but rather by obviating the possibility of such attack in that the attendant parks and retrieves the patrons' cars relieving them of the need to be in the lot.  (Onciano v. Golden Palace Restaurant, Inc. (1990) 219 Cal.App.3d 385, 394, 268 Cal.Rptr. 96, fn. 1.)   Thus, considering the incident and how it gradually evolved with these specific security measures Saska's could have employed, a reasonable inference of a close connection exists between Saska's nonfeasance and the injuries suffered by Phillips.

Under the circumstances here, a strong public policy of preventing future harm to patrons using business provided parking lots exists, particularly late at night.  “The potential physical harm and loss of property such patrons are likely to suffer at the hands of criminals outweigh the social value of keeping defendant's parking lot open to customers dining in its restaurant at night if security measures are not taken to protect those customers.”  (Id. at p. 394, 268 Cal.Rptr. 96.)   It would not be unduly burdensome to Saska's to provide protection.   The record establishes a close-by competing restaurant had always provided a parking attendant and had never experienced an assaultive incident.   The projected cost of providing a parking attendant or valet parking services amounted to less than 1 to 3 percent of Saska's average daily revenue based upon the revenue projections made by Saska's manager.   Finally, the availability, cost and prevalence of insurance for the risks involved here militate in favor of imposing liability, not restricting it.

SUBSTANTIAL EVIDENCE SUPPORTS THE JURY'S DETERMINATION SASKA'S BREACHED ITS DUTY OF CARE OWED ITS CUSTOMERS BY FAILING TO PROVIDE ADEQUATE SECURITY MEASURES AND TO PROTECT CUSTOMERS FROM REASONABLY FORESEEABLE CRIMINAL CONDUCT OCCURRING LATE AT NIGHT IN ITS PARKING LOT

Saska's contends even if it owed a duty of due care under these circumstances, there was no breach of duty because the assault was not reasonably foreseeable and thus its nonfeasance was reasonable.   To the contrary, the record amply supports the jury's finding Saska's breached its duty of due care owed Phillips.

 “Actionable negligence comprises three distinct elements:  Legal duty to use due care, a breach of that duty, and a proximate or legal causal connection between the breach and the injuries suffered by plaintiffs.”   (Lopez v. McDonald's Corp., supra, 193 Cal.App.3d at p. 513, 238 Cal.Rptr. 436;  United States Liab. Ins. Co. v. Haidinger–Hayes, Inc. (1970) 1 Cal.3d 586, 594, 83 Cal.Rptr. 418, 463 P.2d 770.)   Given the nonfeasance character of Saska's conduct, we must determine what reasonable protective measures it should have taken under the circumstances before we evaluate causation.   The record here establishes Saska's and its parking lot were located in a crime census track which the parties do not dispute constituted a high crime area.   The 1990 crime statistics of the San Diego Police Department records revealed the Mission Beach census track to be one of the highest areas of crime against the person (i.e., aggravated assaults) in San Diego County.   However, the assaultive conduct here was even more reasonably foreseeable given the number of assaults and batteries and crimes against the person within the immediate vicinity which had occurred during the three-year period before the incident;  the complaints of neighbors relating to hostile conduct in the parking lot late at night;  the occurrence of an assault and battery in the restaurant within three years before the Phillips incident;  Saska's acknowledgment it had an established policy its managers and employees would go to the assistance of customers in distress in either the parking lot or restaurant;  and the totality of circumstances surrounding the late night use of a parking lot separated from the business establishment.   The foregoing clearly establishes Saska's, at a minimum, should have provided security and protective measures such as a parking valet, lot attendant, or a closed-circuit television monitor designed to deter theft-related and assaultive criminal conduct because of the potential of identification and capture.   Phillips's security expert stated such security measures should have been taken to reduce or deter the threat of criminal assault and battery.   The feasibility and effectiveness of having a parking attendant was supported by the fact a nearby restaurant, Newport Annie's, which served dinner and drinks late at night and had a parking lot separated from the restaurant by a city block, had a parking attendant during dining hours and had not had any incidents of criminal assault or other misconduct against a customer while using its lot since 1989.   Accordingly, the record amply supports a determination Saska's nonfeasance and failure to provide any of the cited security measures constituted a breach of duty it owed to Phillips.

SUBSTANTIAL EVIDENCE SUPPORTS THE JURY'S FINDING OF CAUSATION

 Upon concluding the record amply supports the jury's finding Saska's breached its duty owed to Phillips, we must now determine whether the record supports the jury's conclusion Saska's failure to provide a parking attendant or valet, or to take some other protective measure, constituted a proximate or legal cause of the injuries suffered by Phillips.   Saska's asserts Phillips did not establish its nonfeasance in any way contributed to his resulting injuries, that is that substantial evidence does not support the jury's finding its failure to provide a parking valet or a regular parking attendant, or to take other preventive security measures, constituted a substantial factor in causing his resulting injuries by either effectively deterring such criminal conduct or limiting the scope of the injuries he suffered.  (Lopez v. McDonald's Corp., supra, 193 Cal.App.3d at p. 515, 238 Cal.Rptr. 436.)  “Otherwise stated, [defendant's] negligent conduct is not a substantial factor in bringing about plaintiffs' injuries if their injuries would have been sustained even if it had provided the [protective measure].”  (Ibid.;   see Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052, 1 Cal.Rptr.2d 913, 819 P.2d 872.)

Here, the jury could have reasonably inferred, as did Phillips's expert, that certain added security measures would have likely deterred the criminal conduct that befell Phillips.   Specifically, Phillips's expert testified a parking lot valet service, a parking attendant, or a closed-circuit television monitor system would have likely avoided or lessened the risk of injury to Phillips.   As discussed earlier, a parking valet would have brought Phillips's car to the restaurant door, relieving him of the walk to the parking lot and avoiding the verbal exchange which eventually led to the physical assault.  (See Onciano v. Golden Palace Restaurant, Inc., supra, 219 Cal.App.3d at p. 394, 268 Cal.Rptr. 96, fn. 1.)   Indeed, given the gradual manner in which the incident escalated from a verbal exchange to a physical assault over a period of several minutes, the presence of a parking attendant or closed-circuit television monitoring system would have provided an opportunity for either the attendant or restaurant manager to view the developing conflict, intervene, seek additional help or alert other employees in the restaurant.   It is reasonable to conclude the situation would have been diffused by the presence and intervention of restaurant personnel, who testified they would have gone to the assistance of a customer in distress in the lot consistent with the restaurant's policy.   This would appear especially so under the circumstances leading up to the Phillips assault, as the assailants initially evidenced an intention to leave at one point before the assault occurred by backing their car out of the parking lot and the fact the assailants left after a neighbor actually came and confronted them in the parking lot during the beating.   Finally, in addition to Phillips's expert testimony that enhanced security measures such as those listed above would deter or reduce the risk of harm to patrons using the lot, the jury could have reasonably inferred causation from the evidentiary fact that another nearby restaurant, Newport Annie's, employed a parking attendant and had not experienced any criminal incidents involving customers while the attendant was present late at night.   Thus, this case is the antithesis of the classic case of “abstract negligence” where the defendant's security did not comport with the plaintiff's expert's and jury's notion of adequacy but plaintiff could not establish any causal connection between that negligence and the injury suffered.  (See, e.g., Lopez v. McDonald's Corp., supra, 193 Cal.App.3d at pp. 515–517, 238 Cal.Rptr. 436;  Noble v. Los Angeles Dodgers, Inc. (1985) 168 Cal.App.3d 912, 918, 214 Cal.Rptr. 395.) 5

ANY ERROR BY THE TRIAL COURT IN ADMITTING OPINION AND DOCUMENTARY EVIDENCE OF SUBSEQUENT CRIMINAL ACTIVITY WAS NOT PREJUDICIAL

 Saska's contends the trial court erred in denying its request to exclude all reference to crime statistics pertaining to crimes occurring after the Phillips assault, as well as any opinions based upon such statistics.   Assuming that any references to post-incident statistics were irrelevant to the issue of whether the risk of harm was reasonably foreseeable to Saska's both in the context of breach of duty and causation, any error was not prejudicial.

The challenged statistical data of trial court exhibits 8(d), 8(f), 8(g), 8(h), 8(j) and 8(k) and Phillips's expert's testimony simply confirmed the area constituted a high crime area.   That evidentiary fact was conceded by Saska's in its opening argument to the jury.   Moreover, the statistical data within trial court exhibits 8(c), 8(g), 8(h), 8(j), and 8(k) covering the 1990 calendar year was explicitly, graphically defined and distinguished on a monthly basis.   Similarly, the statistical data covering January through June 1991 in trial court exhibits 8(g), 8(l ) and 8(m) was analyzed on a monthly basis.   This latter data simply confirmed the seasonal trend of increasing crime, both violent crimes and aggravated assaults, as the year progresses from spring to summer.   The jury was fully aware of this statistical breakdown and analysis, as Saska's counsel cross-examined Phillips's expert regarding his reliance on not only the general statistics of the census tract area but also his reliance on the statistical data for the entire 1990 calendar year.   In addition, Saska's presented trial court exhibit 36, an analysis of the police computer printout for all reported crimes within a one-tenth mile radius of Saska's which listed each crime, its description and precise date of occurrence.   Further, Phillips's expert's opinion pertaining to Saska's breach of duty to provide security for its patrons was expressly “[b]ased on a review of the statistics during the initial part of 1990 when the statistics in terms of criminal activity started moving up to a crescendo of September and into October․”   Even Saska's expert relied on post-September 1990 crime statistics in formulating his opinion and admitted there was a trend in the pre-September 1990 crime statistics establishing a marked increase in criminal activity in the Mission Beach area, almost doubling from two or three years before the Phillips assault.   In fact, the nine-month balance of the 1990–1991 fiscal year crime data simply confirmed that trend.   Finally, the jury had significant other substantial evidence supporting its determinations of a breach of duty and causation which we have already summarized in our analyses of those issues.   Accordingly, any error in permitting admission or reliance on crime data occurring after September 1990 was not prejudicial.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   The amounts of damages and the proportionate liability for damages are not challenged on appeal.

2.   Saska's manager, responsible for both the restaurant and its parking lot security, had instructed all employees to report any complaints to him and denied ever having received any of the neighbors' complaints.

3.   Indeed, the Mission Beach area was in the top 10 or 15 of some 208 crime districts in San Diego County in terms of crime and, particularly, aggravated assault.

4.   Saska's expert conceded Saska's management should have investigated the neighbors' complaints.

5.   Saska's reliance on Nola M. v. University of Southern California (1993) 16 Cal.App.4th 421, 20 Cal.Rptr.2d 97, is misplaced.   There, early one evening, the plaintiff was attacked and raped on the campus of the University of Southern California (USC).   The USC security department included highly trained armed security officers and unarmed community service officers.  (Id. at p. 424, 20 Cal.Rptr.2d 97.)   At the time of the incident, USC had eight officers patrolling a quarter-mile area while the Los Angeles Police Department had approximately the same number patrolling the surrounding ten and one-half miles.  (Id. at pp. 425, 435, 20 Cal.Rptr.2d 97.)   Plaintiff's expert found fault in the physical plan, number of guards and the way they worked, but could not say his suggestions for improvement would have prevented the assault.   (Ibid.)  Consequently, Nola M. is factually distinguishable and inapposite here.   Unlike this case, it involves marginal misfeasance, rather than complete nonfeasance.   However, more importantly, the record in Nola M. does not contain the evidence of causation that exists here, especially the prior experience of Newport Annie's regarding the effectiveness as an apparent deterrent of a parking attendant.

WORK, Associate Justice.

KREMER, P.J., and FROEHLICH, J., concur.

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