ISAACS v. HUNTINGTON MEMORIAL HOSPITAL

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Court of Appeal, Second District, Division 2, California.

Mervyn ISAACS, M.D., and Diane Isaacs, Plaintiffs and Appellants, v. HUNTINGTON MEMORIAL HOSPITAL, and Truck Insurance Exchange, Defendants and Respondents.

Civ. 67802.

Decided: July 23, 1984

Harney & Moore, David M. Harney, Los Angeles, and B. V. Yturbide, San Francisco, for plaintiffs and appellants. O'Flaherty, Abrahams & Carl, and Peter Abrahams, Los Angeles, for defendants and respondents.

Appeal by plaintiff after the trial court granted summary judgment to defendant Truck Insurance Exchange and granted a judgment of nonsuit in favor of defendant Huntington Memorial Hospital.   Affirmed.

FACTS:

At approximately 8:30 p.m. on March 26, 1978 plaintiff Mervyn Isaacs, an anesthesiologist, parked his car in a lot owned by defendant Huntington Memorial Hospital.   Dr. Isaacs had been associated with the hospital since 1971.   As he put it, “99%” of his professional work was done there.   Dr. Isaacs was accompanied by his wife, who was going to visit a friend at the hospital while Dr. Isaacs was seeing some of his patients before surgery.   Although Dr. Isaacs had a card key for the doctors' parking lot, he parked in an adjacent lot known as the “research parking lot.”

After completing his rounds, Dr. Isaacs and his wife left the building at about 10:00 p.m.   At the trunk of his car, Dr. Isaacs was grabbed from the rear by someone who held a gun to the doctor's chest.   Dr. Isaacs turned around very slowly and at that point was shot.   As Dr. Isaacs fell to the ground, he saw the gunman leave with “a swaggering gait,” as if he was “under the influence of something.”   As a result of the shooting, which was witnessed by Mrs. Isaacs, Dr. Isaacs lost his right kidney.

Dr. Isaacs and his wife sued the hospital and its insurance carrier, Truck Insurance Exchange.   The lawsuit against the hospital was based on its alleged failure to take adequate security measures to protect its invitees and licensees against criminal acts by third parties.   The basis for the action against the hospital's insurance carrier was the latter's alleged participation in the hospital's decision, made prior to the shooting of Dr. Isaccs, to no longer permit the hospital's security guards to carry firearms.   The trial court granted the insurance carrier's pretrial motion for summary judgment.   After plaintiffs' presentation of the evidence, the hospital moved for a nonsuit, which was granted.   Plaintiffs appeal, challenging the propriety of both judgments.

DISCUSSION:

A. NONSUIT IN FAVOR OF HOSPITAL

In ruling on a nonsuit a court must disregard conflicting evidence, give the plaintiff's evidence all the value to which it is legally entitled, and indulge in every legitimate inference that may be drawn from that evidence.  (Hart v. Browne (1980) 103 Cal.App.3d 947, 957, 163 Cal.Rptr. 356;  Suburban Mobile Homes, Inc. v. AMFAC Communities, Inc. (1980) 101 Cal.App.3d 532, 540, 161 Cal.Rptr. 811.)   The court must then determine whether the evidence, viewed favorably to the plaintiff's cause, is sufficient to support a jury verdict in the plaintiff's favor.  (Ewing v. Cloverleaf Bowl (1978) 20 Cal.3d 389, 395, 143 Cal.Rptr. 13, 572 P.2d 1155;  Hart v. Browne, supra, 103 Cal.App.3d at p. 957, 163 Cal.Rptr. 356.)

 To establish negligence, there must be a duty of care owed by the alleged wrongdoer to the person injured or to the class of which the injured person is a member.  (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 399, 115 Cal.Rptr. 765, 525 P.2d 669;  Rowland v. Christian (1968) 69 Cal.2d 108, 119, 70 Cal.Rptr. 97, 443 P.2d 561.)   Though the determination of duty is primarily a question of law for the court, its existence frequently rests on the foreseeability of the risk or harm.   (Rogers v. Jones (1976) 56 Cal.App.3d 346, 350, 128 Cal.Rptr. 404.)   Foreseeability is usually a question of fact for the jury.  (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36.)   It may be decided as a question of law only if “ ‘under the undisputed facts there is no room for a reasonable difference of opinion.’ ”  (Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 56, 192 Cal.Rptr. 857, 665 P.2d 947.)   Although the proprietor of a business or the occupier of land has a general duty to exercise ordinary care for the safety of persons who come on the property, he is not an insurer of their safety, and the duty does not extend to controlling the misconduct of third persons which he has no reason to anticipate and no reasonable opportunity or means to prevent.  (Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 121, 52 Cal.Rptr. 561, 416 P.2d 793;  7735 Hollywood Blvd. Venture v. Superior Court (1971) 116 Cal.App.3d 901, 905, 172 Cal.Rptr. 528;  Totten v. More Oakland Residential Housing, Inc. (1976) 63 Cal.App.3d 538, 545, 134 Cal.Rptr. 29, Rogers v. Jones, supra, 56 Cal.App.3d 346, 351, 128 Cal.Rptr. 404.)   As was said in Rogers v. Jones, supra, at page 351, 128 Cal.Rptr. 404, “When the harm results from a sudden, intentional, malicious and criminal act of a third party, anticipation of harm as well as a reasonable opportunity to prevent its occurrence may approach the impossible.”

 Plaintiffs' witness Harold Bastrup, a security consultant, testified Huntington Memorial Hospital was located in Pasadena, a city known for its high crime rate.   Bastrup had made no effort to compare the crime rate for the section of Pasadena where the hospital was located to the crime rate for the city as a whole, or to compare that crime rate to that of Los Angeles County as a whole.   In any event, the fact that the property is located in a high crime area, without evidence of prior similar incidents occurring at the property, is insufficient to impose on the landowner a duty to adopt special security precautions to prevent the criminal activities of third persons, particularly where, as here, the wrongdoer is a complete stranger to both the landowner and the victim, and the criminal activity leading to the injury came about precipitously.  (Wingard v. Safeway Stores, Inc. (1981) 123 Cal.App.3d 37, 42, 176 Cal.Rptr. 320.)

 Plaintiffs presented no evidence of prior incidents which would have given the hospital reason to anticipate the unprovoked shooting of Dr. Isaacs in the hospital's parking lot.   Plaintiffs' evidence in this regard consisted of isolated incidents of “threatening” behavior in areas other than the parking lot.   For instance, there was a vague reference to an incident in March 1977 involving a person with a rifle in the emergency room, but the security guard took the rifle away.   It does not appear from the record that any violence actually occurred.   Then there was an incident in September 1977 when a man in the emergency room threatened to use a knife on an unidentified person but was disarmed by a security guard.   The record is silent on the circumstances surrounding either incident.   Another September 1977 incident, also in the emergency room area, involved some ten persons who were “disturbing the peace, drinking.”   Still another September 1977 incident involved someone grabbing money from a counter in the hospital and running away.

In an attempt to show that the hospital had “clear notice of danger on the very evening in question,” plaintiffs presented the testimony of Dr. Charles Bergquist.   The latter arrived at the doctors' parking lot, situated next to the research parking lot used by Dr. Isaacs, a couple of hours before the shooting of Dr. Isaacs and observed “many people milling around, people drinking out of bottles and brown paper packages.”   Dr. Bergquist described the scene as “scary” and “physically threatening.”   He gave, however, no reasons for those conclusions, saying merely, “It is not a nice place to walk into an emergency room at night where there is [sic] a lot of people.”   There was no evidence whatsoever that anyone in the group had personally threatened him or that the group was engaged, or about to engage, in any violent activity.   He did not report the incident to the police or the hospital's security staff.

None of the incidents provided the hospital with a reasonable opportunity either to anticipate or prevent the sudden and unprovoked shooting of Dr. Isaacs in the hospital's parking lot.  (Wingard v. Safeway Stores, Inc., supra, 123 Cal.App.3d 37, 43, 176 Cal.Rptr. 320.)

Plaintiffs argue that brighter lights, guard dogs, more security guards and the availability of firearms and mace to the guards would have deterred the shooting in this case.1  Whether such security measures would have prevented the unprovoked shooting is purely speculative.   As we said in 7735 Hollywood Blvd. Venture v. Superior Court, supra, 116 Cal.App.3d 901, 905, 172 Cal.Rptr. 528, “No one really knows why people commit crime, hence no one really knows what is ‘adequate’ deterrence in any given situation.”

Though there was no guard in the research parking lot when Dr. Isaacs returned to his car, it is doubtful that if one had been present the sudden attack could have been prevented.   Even plaintiffs' own expert witness, Harold Bastrup, acknowledged that had Dr. Isaacs insisted that a guard escort him to his car (a service available to the doctors) the attack probably would have happened anyway.   And though Bastrup criticized the allegedly inadequate training of the security guards, he acknowledged it was not a contributing factor in the shooting of Dr. Isaacs.

This case is distinguishable from the recently decided case of Cohen v. Southland Corporation (1984) 157 Cal.App.3d 130, 203 Cal.Rptr. 572.   There the plaintiff, after driving into the parking lot of defendant's 7-Eleven store in the early morning hours to buy a sandwich, was taken hostage at gunpoint by a man who said he intended to rob the store, to use the plaintiff as a hostage, and to use the plaintiff's car as a getaway vehicle.   Inside the store, while the gunman was pointing the gun at the clerk, the plaintiff seized the gunman from behind.   In the ensuing struggle the plaintiff was shot in the stomach and the gunman escaped.   There was evidence of prior robberies at the store and an uncontroverted statistic showing the alarming frequency of robberies at 7-Eleven stores generally, (one or more robberies per store).   A robbery prevention study commissioned by the defendant and relied on by the plaintiff in court showed that 80% of the 97 7-Eleven store robberies which were the subject of the study were armed robberies.   Based on the evidence presented, the court held that the shooting of the plaintiff fell within the scope of foreseeable harm, that is, injury of a store customer present during a criminal act, and thus presented a triable issue of fact.   Unlike the situation in Cohen, in the case before us there was no evidence of prior similar incidents in the area where Dr. Isaacs was shot.

Another recent case, Penner v. Falk (1984) 153 Cal.App.3d 858, 200 Cal.Rptr. 661, deserves mention.   In that case, the appellate court reversed the sustaining of the defendant's demurrer without leave to amend.

In Penner, the plaintiff was assaulted in the common hallway of the building where he had an apartment.   The plaintiff alleged in his pleadings the defendants knew of violent crimes committed in the neighborhood and on the premises and knew of tenants' complaints that unauthorized persons were often in the building but defendants nevertheless refused to exclude them or to prevent their access.

Penner thus involved allegations of knowledge by the defendants of prior crimes on the premises, coupled with poor or defective security measures which facilitated commission of the crimes.   By contrast, in the case before us, there was no evidence of prior violent activity in the parking lot and no evidence that poor or defective security measures facilitated the unprovoked shooting of plaintiff, Dr. Isaacs.   Plaintiff's own expert witness testified that even if plaintiff had insisted that a guard escort him to his car (a service available to doctors) the attack on plaintiff might have occurred anyway.

Gomez v. Ticor (1983) 145 Cal.App.3d 622, 193 Cal.Rptr. 600, cited by plaintiff, is also distinguishable.  Gomez involved the fatal shooting of a patron of an office building in the building's parking structure.   As he entered the parking structure, a robbery was in progress and one of the robbers shot the decedent.   The defendant contended that no similar violent incidents had occurred on its premises and therefore the attack on the decedent was not foreseeable.   In response, the decedent's heirs introduced evidence of the general high crime character of the neighborhood and the occurrence of 16 acts of theft and vandalism on the defendant's premises within three years prior to the shooting of the decedent.   Based on the evidence, the appellate court held the decedent's heirs had raised a triable issue of fact as to the foreseeability of the injury and summary judgment was therefore improper.   As the court observed, since acts of theft and vandalism were foreseeable in the parking structure in view of prior similar acts which had occurred on the premises, “it may also have been foreseeable that a patron, returning to his or her car at an inopportune moment and interrupting such act of theft or vandalism, would be subject to violent attack by the thief or vandal.”  (Id. at p. 628, 193 Cal.Rptr. 600.)   In contrast to Gomez, in the case at bench there was no evidence of prior incidents which would have given defendant hospital reasonable cause to foresee the unprovoked shooting of Dr. Isaacs in the parking lot.

We have considered plaintiffs' contentions with respect to the trial court's rulings on admissibility of certain evidence and find them to be without merit.

The judgment of nonsuit in favor of defendant Huntington Memorial Hospital was proper.

B. SUMMARY JUDGMENT IN FAVOR OF TRUCK INSURANCE EXCHANGE

The purpose of the summary judgment statute (Code Civ.Proc., § 437c) is to promote the administration of justice by eliminating needless trials.   (Wiler v. Firestone Tire & Rubber Co. (1979) 95 Cal.App.3d 621, 625, 157 Cal.Rptr. 248.)   Summary judgment is proper if the declarations filed in support of it, strictly construed, contain facts sufficient to entitle the defendant to judgment, and those of the plaintiff, liberally construed, show there is no triable issue of fact.  (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20, 112 Cal.Rptr. 786, 520 P.2d 10;  Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785.)

Plaintiffs contend summary judgment in favor of defendant Truck Insurance Exchange, the insurance carrier of defendant Huntington Memorial Hospital, was improper because there was a triable issue regarding its participation in and control over the hospital's security system.

 Having concluded that the hospital was not negligent, it follows that no liability can attach to its insurance carrier.   Moreover, as Truck successfully argued in its pretrial motion for summary judgment in the trial court, a defendant cannot be held liable for negligence that occurred on property it did not own, possess or control.   In his declaration, Don Pretzinger, Vice President of Truck, stated that Truck had no ownership in the premises and exercised no control over the hospital's security measures;  that Truck took no part in deciding what security measures were to be implemented, such as “the number, duties, or weapons carried by the security officers;”  and that the only relationship between Truck and the hospital was the hospital's purchase of an insurance policy from Truck.   In their opening brief, plaintiffs rely on the deposition testimony of Walter Noce, Jr., the hospital's vice president of administration, that the decision prior to the shooting of Dr. Isaacs to no longer permit the hospital's security guards to carry any firearms was “a collective decision” made on the basis of information given by several persons, including “representatives of [Truck].”  Plaintiffs, however, fail to cite the remainder of Noce's deposition testimony in which he described the nature of the “information” given by Truck's representatives and which was quoted in plaintiffs' opposition to Truck's motion for summary judgment:  “The nature was that Farmers 2 had no specific recommendation that they—that security officers should or should not carry arms, but that the hospital's liability coverage would be in effect which ever way the decision was made.”

Plaintiffs failed to controvert Truck's declaration which unequivocally denied Truck's ownership, possession and control of the hospital's premises.   Summary judgment in favor of Truck was therefore proper.  (Whitney's at the Beach v. Superior Court (1970) 3 Cal.App.3d 258, 269, 83 Cal.Rptr. 237.)

The summary judgment in favor of defendant Truck Insurance Exchange and the judgment of nonsuit in favor of defendant Huntington Memorial Hospital are affirmed.

FOOTNOTES

1.   At the time of the shooting, the hospital had three security guards on duty.   One guard was stationed immediately inside the emergency entrance;  the other two were assigned to patrolling the grounds on a roving basis.   The guards carried no guns.

2.   It appears from the record that Truck Insurance Exchange is a sister company of Farmers Group, Inc.

BEACH, Associate Justice.

COMPTON, Acting P.J., and GATES, J., concur.