duty to take reasonable and minimally burdensome measures to protect customers from ongoing criminal activity extends “to areas within the proprietor’s control ” (emphasis added)
How later courts described this case
- duty to take reasonable and minimally burdensome measures to protect customers from ongoing criminal activity extends “to areas within the proprietor’s control ” (emphasis added)
Written by the judges who cited it.
The opinion
BROWN, J., Concurring.
I concur in the judgment based on the limited facts before us. Under the specific circumstances set forth, it could very well be the case that the employees may have been minimally burdened to call 911 in the face of the ongoing criminal conduct. 1 I, however, write separately because I do not believe our decision in Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal.4th 814 [ 59 Cal.Rptr.2d 756 , 927 P.2d 1260 ] (Kentucky Fried Chicken) compels this result.
In Kentucky Fried Chicken, we decided “whether a shopkeeper owes a duty to a patron to comply with an armed robber’s demand for money in order to avoid increasing the risk of harm to patrons.” (Kentucky Fried Chicken, supra, 14 Cal.4th at p. 817 .) And we held that “there is no duty to comply with a robber’s unlawful demand for the surrender of property. Simple refusal to obey does not breach any duty to third persons present on the premises.” (Id. at p. 829.) We stated that to hold otherwise and recognize a duty would be “inconsistent with the public policy reflected in article I, section 1 of the California Constitution and Civil Code section 50.” (Ibid.) Both article I, section 9 of the California Constitution and Civil Code section 50 recognize the right of a person to defend property with reasonable force. (Kentucky Fried Chicken, at p. 829.) Kentucky Fried Chicken stands for this and nothing more. In particular, it imposed no duties on business owners based on any ongoing criminal conduct
*280 Although as a society we laud and encourage individuals to come to the aid of others in need, and we celebrate and commend heroic actions, there is a great difference between encouraging selfless actions and imposing liability for failing to act heroically. The special relationship doctrine is an exception to the general rule that a business proprietor owes no duty to protect others from the criminal acts of third parties. Thus, this court should proceed with caution when expanding the legal obligations of business owners, especially when the expansion of a duty in these cases may result in reduced services and lost job opportunities in the least affluent sections of our cities. (See Delgado v. Trox Bar & Grill (2005) 36 Cal.4th 224, 258 [ 30 Cal.Rptr.3d 145 , 113 P.3d 1159 ] (dis. opn. of Kennard, J.).)
Moreno, J., concurred.
Of course, our holding does not establish that the employees breached any duty by failing to do so. Indeed, the employees may have had good reasons for not making the call. They may have feared becoming the assailants’ next victims or the possibility of future gang retaliation if they assisted plaintiff.