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KENTUCKY FRIED CHICKEN OF CALIFORNIA, INC., Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; Kathy BROWN, Real Party in Interest.
Defendant and petitioner Kentucky Fried Chicken of California, Inc. (KFC) seeks a writ of mandate directing respondent superior court to vacate an order denying KFC's motion for summary judgment and to enter a new and different order granting summary judgment against plaintiff and real party in interest Kathy Brown (Brown).
The essential issue presented is whether KFC's employee owed Brown, a restaurant patron, a duty to avoid unreasonably increasing the risk of harm to Brown during the course of an armed robbery.
Because we find the existence of a duty, and there is an issue of fact as to whether it was breached, the petition is denied.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are essentially undisputed. KFC owns a KFC restaurant in Redondo Beach. From March 1991 to August 1993, there was no report of any armed robberies at the subject restaurant or of any criminal activity whatsoever.
On August 14, 1993, while Brown was inside the restaurant, an armed robber took her wallet. He then told the KFC cashier to open the cash register and give him all the money. At the time of this demand, the robber had his gun to Brown's back.
The cashier told the robber she did not have the key to the register and would have to go to the back of the restaurant for the key. The robber, however, was insistent and shoved the gun harder into Brown's back.
The robber told the cashier to open the register immediately or he would shoot Brown. Brown told the cashier to open the drawer and give the robber the money. The cashier complied. The robber grabbed the money from the drawer and left.
On August 11, 1994, Brown filed suit against KFC for general negligence. She alleged in relevant part: “Due to the improper security and improper training of [KFC's] employees, the robber grabbed and held [Brown] at gunpoint and threatened to seriously injur[e] [her] if said employees did not give him the money in the cash register. Said ․ employees caused further injuries and damage to [Brown] by their delay and other actions that resulted in the robber's increased threats of grave injury to [Brown].”
KFC filed an answer which denied the allegations and asserted various affirmative defenses.
Thereafter, KFC brought the instant motion for summary judgment on the grounds it owed no duty to Brown because it was not foreseeable such criminal activity would occur. Further, even if Brown could establish a duty, there was no breach by KFC for failure to provide security guards, and KFC did not owe Brown a duty to comply with the robber's demands. The evidence relied on by KFC in support of the motion included declaration and deposition testimony there was no recent criminal activity at the site and that both the restaurant and the adjacent parking lot had adequate lighting.
In resisting summary judgment, Brown did not dispute KFC's claim there were no prior robberies at the location, and Brown did not contend KFC should have had a security guard. The issue, according to Brown, was “did the KFC employee and/or the owner of KFC breach its duty to [her] by failing to comply with the demands of the gunman[?]”
Brown's exhibits included a business crime prevention pamphlet issued by the Redondo Beach Police Department Crime Prevention Unit. The pamphlet states in relevant part: “If a robbery happens ․ Someone points a gun at you and demands your money. What do you do? Give it to him. Never refuse a robber.”
Brown's opposing declaration stated: She was the only customer in the store. As she stood at the counter to pay for her order, the robber approached from behind, pressed a gun into her back and demanded her money and wallet. She immediately complied. The robber then told the cashier to give him all the money in the cash register. The cashier told the robber she had to go to the back of the store to get the key. The robber became extremely agitated and told the cashier he would kill Brown if the cashier did not quit playing games and immediately open the cash register. Brown believed she was going to die because of the cashier's actions and attitude. Brown screamed at the cashier to open the register and give the robber the money. The cashier reluctantly complied with Brown's demand. The robber did not become agitated and angry until the cashier told him she needed to get the keys to the register.
The summary judgment motion was heard on April 25, 1995. The trial court denied the motion.1 KFC then sought review by way of the instant petition. We issued an alternative writ.
CONTENTIONS
KFC contends a landowner has no duty to control the wrongful acts of third parties without prior similar incidents of violent crime, and a business has no duty to cooperate with a criminal to prevent emotional distress to a patron.
DISCUSSION
1. Standard of appellate review.
Our review of the summary judgment motion requires we apply the same three-step process required of the trial court. (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064, 225 Cal.Rptr. 203.) “First, we identify the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent's pleading. [Citations.] [¶] Secondly, we determine whether the moving party's showing has established facts which negate the opponent's claim and justify a judgment in movant's favor. [Citations.] ․ [¶] [T]he third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. [Citations.]” (Id., at pp. 1064–1065, 225 Cal.Rptr. 203; accord Todd v. Dow (1993) 19 Cal.App.4th 253, 258, 23 Cal.Rptr.2d 490.)
Our review is guided by the foregoing principles.
2. General principles re duty.
“ ‘It is settled law in California that an owner or occupier of land held open for business purposes has a duty to protect visitors from the wrongful acts of third persons which threaten the safety of visitors to the premises when he or she has reasonable cause to anticipate such acts and the probability of resulting injury. (Taylor v. Centennial Bowl, Inc. (1965) 65 Cal.2d 114, 121 [52 Cal.Rptr. 561, 416 P.2d 793]․)’ [Citation.]” (Vandermost v. Alpha Beta Co. (1985) 164 Cal.App.3d 771, 776, 210 Cal.Rptr. 613; see Balard v. Bassman Event Security, Inc. (1989) 210 Cal.App.3d 243, 247, 258 Cal.Rptr. 343.)
Civil Code section 1714, subdivision (a), sets forth the basic rule: “Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself.”
Because the existence of duty is a question of law for the court, we determine de novo the existence and scope of the duty owed by KFC to Brown. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674, 25 Cal.Rptr.2d 137, 863 P.2d 207.)
Some factors that courts consider in determining the existence and scope of a duty in a particular case are: “[T]he foreseeability of harm to the plaintiff, 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.” (Rowland v. Christian (1968) 69 Cal.2d 108, 113, 70 Cal.Rptr. 97, 443 P.2d 561, italics added; accord Ann M., supra, 6 Cal.4th at p. 675, fn. 5, 25 Cal.Rptr.2d 137, 863 P.2d 207.)
Foreseeability is a crucial factor in determining the existence of duty, and “when analyzed to determine the existence or scope of a duty, [foreseeability] is a question of law to be decided by the court.” (Ann M., supra, 6 Cal.4th at pp. 676, 678, 25 Cal.Rptr.2d 137, 863 P.2d 207, italics added.) 2
A duty to “take affirmative action to control the wrongful acts of a third party will be imposed only where such conduct can be reasonably anticipated. [Citations.]” (Ann M., supra, 6 Cal.4th at p. 676, 25 Cal.Rptr.2d 137, 863 P.2d 207.) In Ann M., a woman was raped in a secluded area of a shopping center. (Id., at pp. 670–671, 25 Cal.Rptr.2d 137, 863 P.2d 207.) The Supreme Court found the landowner did not have notice of prior similar incidents in the shopping center and therefore the plaintiff's injury was not sufficiently foreseeable to impose a duty upon the landowner to provide security guards in the common areas. (Id., at pp. 679–680, 25 Cal.Rptr.2d 137, 863 P.2d 207.)
3. The Vandermost decision.
KFC's argument that no duty was owed rests primarily on Vandermost, supra, 164 Cal.App.3d 771, 210 Cal.Rptr. 613. There, shortly after Vandermost and his friends were seated at a restaurant, they heard a commotion in the area near the cash register. Vandermost heard a noise which sounded like a firecracker. Vandermost left the booth to investigate. Moreno, the would-be robber, told the cashier “ ‘give me the money or I am going to shoot someone.’ ” (Id., at p. 775, 210 Cal.Rptr. 613.) Moreno then fired his handgun into the ceiling. The cashier had not been instructed by her employer as to how to act during the course of a robbery. In response to Moreno's demands, the cashier closed the register drawer thereby automatically locking it, and then fled to the kitchen. Moreno unsuccessfully attempted to open the register by banging on it with his gun. Vandermost observed that Moreno was “ ‘pissed off, angry, confused.’ ” (Ibid.) Vandermost began to move toward the exit. Moreno then approached Vandermost and demanded “ ‘give me all your money’ ” to which Vandermost responded “ ‘I don't have any money.’ ” (Ibid.) Moreno retorted, “ ‘Oh yeah’ ” and shot Vandermost in the upper arm. Moreno also shot one Garrison, who entered the restaurant during the incident. Moreno said nothing before shooting Garrison, but after that shooting stated: “ ‘That will prove I'm not fucking around.’ ” The entire attempted robbery took no more than two minutes. (Ibid.)
Vandermost sued the restaurant and its employee for their negligence during the course of the robbery. The jury found for Vandermost. The trial court granted the defendants' motion for judgment notwithstanding the verdict. The reviewing court affirmed.
Vandermost found no California case “discussing whether an occupier of land held open for business purposes who has no prior knowledge of criminal activities in the area, owes a duty to a patron to comply with a criminal's demands in order to avoid provoking that criminal into injuring a patron.” (Vandermost, supra, 164 Cal.App.3d at p. 778, 210 Cal.Rptr. 613.) It observed, however, “[t]he vast majority of other jurisdictions to which this issue has been presented have found that the proprietor of a business establishment has no duty to comply with a criminal's demands in order to avoid potential injuries to a patron. [Citations.]” (Id., at pp. 778–779, 210 Cal.Rptr. 613.)
Vandermost noted there was testimony that Moreno told the cashier “if she did not give him the money he would shoot someone. This was sufficient for the jury to infer that it was reasonably foreseeable to [the cashier] that unless she complied with ․ Moreno's demands he would shoot a patron.” (Vandermost, supra, 164 Cal.App.3d at p. 779, 210 Cal.Rptr. 613.) 3
However, Vandermost rejected the imposition of a duty on policy grounds. It agreed with “the reasoning of the Illinois Supreme Court expressed in Boyd v. Racine Currency Exchange, Inc. [ (1973) 56 Ill.2d 95] 306 N.E.2d 39, wherein a robber grabbed a customer of a money exchange and threatened to shoot him unless the teller either gave him money or allowed him to enter her enclosed booth. Upon the teller's refusal to comply with the robber's demands, the robber shot the customer. Certainly, this situation presents a more compelling reason to find a duty to comply with the demands of a criminal th [a]n that presented in the case at bench. The Boyd court, however, found that no such duty existed, reasoning that: ‘If a duty is imposed ․ to comply with such a demand the same would only inure to the benefit of the criminal without affording the desired degree of assurance that compliance with the demand will reduce the risk to the invitee. In fact, the consequence of such a holding may well be to encourage the use of hostages for such purposes, thereby generally increasing the risk to invitees upon business premises. If a duty to comply exists, the occupier of the premises would have little choice in determining whether to comply with the criminal demand and surrender the money or to refuse the demand and be held liable in a civil action for damages brought by or on behalf of the hostage. The existence of this dilemma and knowledge of it by those who are disposed to commit such crimes will only grant to them additional leverage to enforce their criminal demands. The only persons who will clearly benefit from the imposition of such a duty are the criminals. In this particular case the result may appear to be harsh and unjust, but, for the protection of future business invitees, we cannot afford to extend the criminal another weapon in his arsenal.’ ” (Vandermost, supra, 164 Cal.App.3d at pp. 779–780, 210 Cal.Rptr. 613.)
Thus, although Vandermost found the injury was reasonably foreseeable, it declined to impose a duty upon the defendants for the purpose of avoiding harm to a patron. Vandermost reasoned: “While it is certain that plaintiff suffered an injury, the closeness of the connection between that injury and defendant's conduct is at best tenuous. It was only after plaintiff stated he was unable to give ․ Moreno any money that Moreno shot him in the arm. Additionally, there is no ‘moral blame’ attached to defendant's conduct. The sole moral blame in this setting must be directed toward ․ Moreno.” (Vandermost, supra, 164 Cal.App.3d at p. 779, 210 Cal.Rptr. 613.) The problem with this reasoning is that Vandermost analyzed the acts of the defendants in the context of duty rather than its breach.
4. Trial court properly found a duty existed.
Brown does not contend KFC had a duty to hire a security guard or otherwise to prevent the robbery. Rather, the issue presented is whether, once the robbery was in progress, the cashier had a duty to avoid unreasonably increasing the risk of harm to Brown. Our analysis is based on the various factors set forth in Ann M., supra, 6 Cal.4th at page 675, footnote 5, 25 Cal.Rptr.2d 137, 863 P.2d 207.
As indicated, foreseeability is a crucial factor in determining the existence of a duty. (Ann M., supra, 6 Cal.4th p. 676, 25 Cal.Rptr.2d 137, 863 P.2d 207.) Here, as in Vandermost, the injury was reasonably foreseeable. With a gun to Brown's back, the robber ordered the cashier to open the cash register and give him the money. The cashier attempted to stall the robber, telling him she needed to go to the rear of the store to obtain the key to the register. Brown feared she would be killed and screamed at the cashier to open the register. The cashier finally complied. In view of these facts, which are essentially undisputed, it was reasonably foreseeable to the cashier that if she did not cooperate with the robber, Brown would be terrorized and potentially shot to death.
The foreseeability of injury in the event of a failure to cooperate with a robber is also reflected in the Redondo Beach Police Department's crime prevention pamphlet. The pamphlet's admonition never to refuse an armed robber's demand for money is a recognition of the likelihood of the increased risk of injury or death in the event of resistance.
Moving beyond foreseeability to the other duty factors, the “ ‘degree of certainty that the plaintiff suffered injury’ ” is high. (Ann M., supra, 6 Cal.4th at p. 675, fn. 5, 25 Cal.Rptr.2d 137, 863 P.2d 207.) Being held hostage with a gun to one's back, situated between an agitated robber and a recalcitrant cashier, Brown's terror is palpable.
The “ ‘closeness of the connection between the defendant's conduct and the injury suffered’ ” likewise is present. (Ann M., supra, 6 Cal.4th at p. 675, fn. 5, 25 Cal.Rptr.2d 137, 863 P.2d 207.) According to Brown's declaration, the robber did not become agitated and angry until the cashier told him that she needed to get the keys to the register.
The “ ‘extent of the burden to the defendant’ ” is slight. (Ann M., supra, 6 Cal.4th at p. 675, fn. 5, 25 Cal.Rptr.2d 137, 863 P.2d 207.) KFC, as the employer, was required to instruct its personnel to respond reasonably during an armed robbery in order to minimize the risk of injury or death.
With respect to the consequences to the community of holding a duty exists in this context (Ann M., supra, 6 Cal.4th at p. 675, fn. 5, 25 Cal.Rptr.2d 137, 863 P.2d 207), we disagree with Vandermost. The specter raised in Vandermost that imposition of a duty would lead to increased hostage-taking is highly questionable. (Vandermost, supra, 164 Cal.App.3d at p. 780, 210 Cal.Rptr. 613.) We do not presume street criminals stay abreast of developments in California tort law. Moreover, the prevailing wisdom has long been that one does not resist an armed robber's demands for money. We do presume the average robber is aware of that concept. Therefore, the recognition of a legal duty by the proprietor of a business establishment to require its personnel to behave reasonably during an armed robbery in order to avoid unreasonably increasing the risk to third parties would not lead to an appreciable increase in hostage-taking.
Therefore, the consequence to the community of recognizing a duty is that it will protect patrons generally from the increased risk posed by misguided attempts to resist or overwhelm an armed robber. We agree with the views expressed in Genovay v. Fox (1958) 143 A.2d 229 [50 N.J.Super. 538], wherein the plaintiff, a bar patron, sustained injuries in conflict with an armed robber, and then sued the proprietor for inciting resistance to the gunman. Genovay concluded “the seriousness of the risk of grave injury or death inherent in the confrontation of the group of men in defendant's company by the armed robber was such that there cannot be said to have been any right on [the proprietor's] part as a matter of law to take any measures he might choose to frustrate the gunman and secure his capture without regard to the effect of such actions on the safety of others present․ The value of human life and of the interest of the individual in freedom from serious bodily injury weigh sufficiently heavily in the judicial scales to preclude a determination as a matter of law that they may be disregarded simply because the defendant's activity serves to frustrate the successful accomplishment of a felonious act and to save his property from loss.” (Genovay, supra, 143 A.2d at pp. 239–240.) 4
Similarly, Kelly v. Kroger Company (10th Cir.1973) 484 F.2d 1362, involving a supermarket robbery, the court found a triable issue of material fact where the plaintiff contended “the danger to customers and employees of the store during the course of the robbery was apparent, and that the wrong action was taken—action which served to increase the hazard and which in fact caused the injury.” (Id., at p. 1364.)
In the instant case, because of the foreseeability that Brown would be injured by the cashier's resistance, the high degree of certainty that Brown suffered injury, the close connection between the cashier's conduct and the injury to Brown, the slight burden to the defendant of imposing a duty, and the strong policy reasons for imposing a duty, which will protect the community from the increased risk posed by an unreasonable response to armed robbery, we conclude the trial court did not err in finding a duty and denying summary judgment.
CONCLUSION
The duty of KFC was simply to act reasonably in order to avoid unreasonably increasing the risk of harm to the customer. Whether this duty was breached by the refusal of its employee to comply with the robber's demands is a question of fact to be decided by the trier of fact at trial.
DISPOSITION
The alternative writ having served its purpose is discharged. The petition for writ of mandate is denied.
FOOTNOTES
1. The trial court apparently failed to specify its basis for denying the summary judgment motion, as required by Code of Civil Procedure section 437c, subdivision (g). However, that does not restrict our inquiry. It is apparent from the arguments made in the summary judgment motion and opposition thereto that the trial court denied summary judgment on the ground KFC's employee had a duty to comply with the robber's demands to avoid injury to Brown. Moreover, on review of a summary judgment motion, “the trial court's stated reasons for its ruling do not bind us. We review the ruling, not its rationale. [Citation.]” (Transamerica Occidental Life Ins. Co. v. State Bd. of Equalization (1991) 232 Cal.App.3d 1048, 1053–1054, 284 Cal.Rptr. 9; accord California Aviation, Inc. v. Leeds (1991) 233 Cal.App.3d 724, 731, 284 Cal.Rptr. 687.) That is consistent with the well settled principle that a “ ‘ruling or decision, itself correct in law, ․ must be sustained regardless of the considerations which may have moved the trial court to its conclusion.’ ” (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19, 112 Cal.Rptr. 786, 520 P.2d 10; accord Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550, 568, 253 Cal.Rptr. 693, 764 P.2d 1070.)
2. In contrast, foreseeability is a question of fact for the jury “in two more focused, fact-specific settings. First, the jury may consider the likelihood or foreseeability of injury in determining whether, in fact, the particular defendant's conduct was negligent in the first place. Second, foreseeability may be relevant to the jury's determination of whether the defendant's negligence [caused] the plaintiff's injury.” (Ballard v. Uribe (1986) 41 Cal.3d 564, 573, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624.)
3. Citing Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36, Vandermost states “ ‘[w]hile duty is a question of law, foreseeability is a question of fact for the jury.’ ” (Vandermost, supra, 164 Cal.App.3d at p. 779, 210 Cal.Rptr. 613, italics added; see also Garcia v. Superior Court (1990) 50 Cal.3d 728, 759, 268 Cal.Rptr. 779, 789 P.2d 960, diss. opn. of Mosk, J.) However, that language is at odds with the latest pronouncement in Ann M. that “[f]oreseeability, when analyzed to determine the existence or scope of a duty, is a question of law to be decided by the court. (Ballard v. Uribe (1986) 41 Cal.3d 564, 572–573, fn. 6 [224 Cal.Rptr. 664, 715 P.2d 624] ․; Lopez v. McDonald's Corp. [ (1987) 193 Cal.App.3d 495, 507, fn. 6, 238 Cal.Rptr. 436].)” (Ann M., supra, 6 Cal.4th at p. 678, 25 Cal.Rptr.2d 137, 863 P.2d 207, italics added.)
4. Genovay v. Fox, supra, 143 A.2d 229 was reversed in 149 A.2d 212 [29 N.J. 436], on the ground there was insufficient evidence to take to the jury the question of whether the proprietor had been negligent in inciting or suggesting resistance to the armed robber. However, that does not detract from the lower court's recognition that the proprietor was not entitled to frustrate the gunman without regard to the safety of others on the premises.
KLEIN, Presiding Justice.
CROSKEY and ALDRICH, JJ., concur.
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Docket No: No. B092710.
Decided: November 30, 1995
Court: Court of Appeal, Second District, Division 3, California.
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