A Plaintiff was sleeping in the parking lot of a hotel when he was shot during an attempted robbery. Since the hotel had a patrol company monitoring the area, the plaintiff claimed that the failure to perform hourly patrols resulted in a failure to deter criminal activity, and thus was the cause of the criminal act and the Plaintiff's resulting injuries. On a motion for summary judgment, Michael S. Eisenbaum from Gray York & Duffy argued that the Plaintiff could not rely on the very same security he was trying to elude at night, and that hourly patrols would not have made any difference since the crime took less than 20 seconds to commit. The Los Angeles Superior Court agreed, and judgment was rendered in favor of the Defendants on all causes of action, with costs awarded to the Defendants.
ENCINO, California -- Michael S. Eisenbaum from Gray, York & Duffys Encino office obtained summary judgment in favor of one of the firms clients in a case involving an attempted robbery where the plaintiff was shot and injured (Edward James Marshall v. Playa L&M Enterprises, et al., Los Angeles Superior Court Case No. YC049786).
On June 23, 2003 at approximately 11:30 p.m., the plaintiff, Edward James Marshall, was sleeping in his car in a remote parking lot of the defendants hotel and retail premises. It was discovered during the course of the litigation that the plaintiff had been routinely sleeping in his car at this location for two years without incident. However, on that evening, two or three assailants noticed the plaintiff and attempted to rob him. The plaintiff resisted, attempted to fight off his attackers, then stumbled and fell to the ground. As he began to get up, he was shot in his right leg. The assailants ran off and were never captured.
The owners of the hotel had contracted with a security company to provide security services for the hotel and retail portions of the premises. In fact, the owners had hired a new security company in December 2002, because the prior company was not performing its security obligations in an acceptable manner. Once this new security company took over, the scope of security was increased to include the retail areas of the property. The parking lot where the incident occurred was at a retail section at the far end of the property, where there was little or no activity occurring at night (which is why the plaintiff had selected the area for purposes of sleeping). Plaintiff testified at his deposition that he selected the area because it was safe and quiet, and that he could essentially blend in with other cars parked there overnight for the auto shop adjacent to the parking lot. He had never been approached by anyone, including security guards, in the two years he had been sleeping there.
The plaintiff sued the owners of the premises on theories of premises liability and general negligence, contending that they owed duty to the plaintiff to provide adequate security guards to protect him from criminal activity which would occur at the property. Through discovery, the plaintiff established that it was the policy of the security company to make hourly patrols of the entire property. However, the security companys actual patrols of the area where the incident occurred were much less frequent. As a result, plaintiff claimed that the failure to perform these patrols resulted in a failure to deter criminal activity, and thus was the cause of the criminal act committed upon the plaintiff and his resulting injuries.
On behalf of the owners of the hotel and retail properties, Mr. Eisenbaum filed a motion for summary judgment contending that the owners did not owe or breach a duty to protect the plaintiff, and that even if there was such a duty, any breach of that duty was not the proximate or legal cause of the plaintiffs injuries.
In opposition to the motion, the plaintiff argued that the area had a history of violent criminal activity, including assaults, robberies, and shootings. Thus, the criminal act committed against the plaintiff was foreseeable, and therefore, the owners owed a duty to protect the plaintiff who was a guest at the premises. This duty was breached because the security guards were not performing the required patrols at the property. The plaintiffs attorney hired a security expert who offered the opinion that hourly patrols would have deterred the attack on the plaintiff. This opinion was offered directly in opposition to the motion for summary judgment, in an effort to convince the court that the issue of causation is a subject that must be decided by a jury. The plaintiff also stated in a declaration that he was relying on the security at the property to keep him safe.
At the hearing of the motion, Mr. Eisenbaum argued that the Plaintiff cannot rely on the very same security he is intentionally evading. Under the facts of this case, no duty is owed to a person who conceals himself on the property and then becomes a victim of a random crime. Mr. Eisenbaum further argued that the opinion of the plaintiffs security expert was speculative, because no one could know what would have deterred this particular crime. Since the crime happened within a matter of about 20 seconds, it is speculative to conclude that hourly patrols would have somehow deterred or prevented the attack.
The court agreed with Mr. Eisenbaum on all issues and granted the motion. The court primarily ruled that the plaintiff could not establish the required element of causation, and also found that the plaintiff did not meet his burden in establishing that the defendants owed a duty to provide security on his behalf. Thus, judgment was rendered in favor of the Defendants on all causes of action, with costs awarded to the Defendants.
The case was Edward James Marshall v. Playa L&M Enterprises, et al., Los Angeles Superior Court Case No. YC049786.
Gray York & Duffy congratulates Mr. Eisenbaum on his success. To learn more about Mr. Eisenbaum and his background, please visit:
http://www.gydlaw.com/profiles/michaeleisenbaum/
About Gray, York & Duffy, LLP
Gray, York & Duffy, LLP is one of the preeminent law firms in the field of defending insurers and their policyholders. The firm provides statewide coverage with offices in Encino, California and Redwood City, California. GYD has achieved the highest rating from Martindale-Hubbell Law Directory, and is listed in Bests Directory of Insurance Defense Firms. To learn more about Gray, York & Duffy, please visit us online at www.gydlaw.com
Please Note: This article is necessarily general in nature and is not a substitute for legal advice with respect to any particular case. Readers should consult with an attorney before taking any action affecting their interests.
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