United States v. 2010-08-18 | 08-56749 | MARIE TOOMER V. USA | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 MARIE TOOMER; JAYA M. LITTLE, a
minor through her guardian ad No. 08-56749
litem, Dylin Baruso; DYLIN
D.C. No. BARUSO, 3:06-cv-00860-  Plaintiffs-Appellants, JAH-LSP
v. OPINION
UNITED STATES OF AMERICA,
Defendant-Appellee. 
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Argued and Submitted
February 4, 2010—Pasadena, California
Filed August 18, 2010
Before: Betty B. Fletcher, Harry Pregerson and
Susan P. Graber, Circuit Judges.
Opinion by Judge B. Fletcher;
Dissent by Judge Pregerson
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COUNSEL
Sean T. O’Bryan, San Diego, California, for the plaintiffs-
appellants.
Steve B. Chu, Assistant U.S. Attorney; San Diego, California,
for the defendant-appellee.
OPINION
B. FLETCHER, Circuit Judge:
Marie Toomer and Jaya Marie Little (“Appellants”), the
mother and daughter of Roderick Little (“Little”), appeal the
district court’s order granting summary judgment to the
United States. Appellants brought suit under the Federal Tort
Claims Act (“FTCA”), claiming that negligence by the United
States caused Little’s death. Little was standing in the parking
lot of the Del Taco restaurant located across the street from
the 32nd Street Naval Base (“Naval Base”) in San Diego, Cal-
ifornia, when he was shot and killed by Myron Thomas
(“Thomas”). Prior to the shooting, Little and Thomas had
been fighting at Club Metro, a bar and dance club located on
the Naval Base and operated by the United States. We hold
that the United States is not liable for Little’s death. Under
California law, the United States’ duty to protect Little from
foreseeable criminal conduct extended only to the Naval
Base, not to the Del Taco restaurant, which was outside the
United States’ ownership and control. We affirm.
BACKGROUND AND PROCEDURAL HISTORY
Club Metro is a bar and dance club located inside the Naval
Base. It is operated by the U.S. government. Because fights
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at Club Metro are common, customers are required to pass
through metal detectors before entering, and Club Metro posts
security guards at the entrance and inside the building.
Roderick Little and Myron Thomas were at Club Metro the
night of November 18, 2003. Each was with a group of
friends. The two parties got into a fight on the dance floor.
Security personnel intervened and put an end to the physical
violence, although the Thomas group continued to make
threatening gestures at Little and his friends. When Little’s
group left the club, they were confronted by the Thomas
party, and another fight broke out in the parking lot. Club
Metro security guards again intervened and instructed both
groups to leave the Naval Base. They complied, although
Thomas had to be physically restrained and brought back to
his car by his friends.
The Naval Base posted two military security officers, Dar-
rell Gordon and Juan Salazar, at the exit from the base. The
officers were assigned to direct traffic, which was typically
very heavy around the time Club Metro closed at 1:30 a.m. A
dark car with shiny rims and military decals drove past the
officers, and they heard someone inside the car say, “I’m
going to do a 187.” Both officers understood this to be a
threat of murder; section 187 of the California Penal Code
covers murder. Cal. Penal Code § 187. The person in the car
was later identified as Thomas. Neither of the officers could
see him at the time, and they were not able to take down the
car’s license plate number. Officer Gordon intended to report
the threat to dispatch, which would have then notified the
local police, but he was tied up directing traffic. Later Gordon
did go over to the guard booth to use the phone to report the
threat. Just as he picked up the receiver, he heard shots ring
out.
Meanwhile, Thomas went to the apartment of Sergeant
Kayzoski Sanders, his supervisor and friend. Thomas was liv-
ing with Sanders temporarily. Thomas took Sanders’s AK-47
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automatic rifle. Sanders knew that Thomas had the automatic
rifle and that Thomas was dangerous. He called Thomas to try
and persuade him to return to the apartment. Instead, around
2:30 am, Thomas drove with a friend to the Del Taco restau-
rant located across the street from the Naval Base, where Club
Metro patrons tended to hang out after the club had closed.
Little was standing in the parking lot of the restaurant. While
his friend was at the wheel, Thomas shot in the direction of
Little and his friends. Little was killed, and several others
were injured.
Subsequently, Thomas was convicted of second-degree
murder.
Marie Toomer, Little’s mother, and Jaya Marie Toomer,
Little’s daughter, brought suit against the United States for
wrongful death, claiming that Little’s death was the result of
negligence by the United States. After discovery was com-
plete, the district court granted summary judgment in favor of
the United States, holding that California law did not impose
on the United States an affirmative duty to protect Little from
violent acts that occurred off the Naval Base. Plaintiffs now
appeal.
DISCUSSION
[1] Under the FTCA, the United States can be held liable
for Roderick Little’s death if “a private individual under like
circumstances” could be held liable for his death under Cali-
fornia tort law. 28 U.S.C. § 2674. Appellants argue that the
United States should be treated like a private night club opera-
tor for FTCA purposes. See United States v. Olson, 546 U.S.
43, 46-47 (2005). Based on that assumption, Appellants
advance two theories of liability. First, the United States owed
Little an affirmative duty to protect Little from third-party
criminal conduct. Second, the United States voluntarily pro-
vided security services at Club Metro and had a duty to exer-
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cise reasonable care in performing those services. Appellants
argue that the United States failed in both duties.
We agree with the district court that California law does not
impose on the United States an affirmative duty to protect Lit-
tle from criminal activity occurring outside the Naval Base.
Even if the United States had such a duty, it was not obligated
to protect Little from Thomas’s criminal conduct because the
drive-by shooting was not reasonably foreseeable. Further-
more, because the United States did not increase the risk of
harm to Little by providing security services at Club Metro,
it cannot be held liable on a negligent undertaking theory. We
therefore affirm the district court’s order granting summary
judgment in favor of the United States.
I. Affirmative Duty to Protect Little from Thomas’s
Criminal Activity
[2] The first element of any negligence claim is the exis-
tence of a duty. See Vasquez v. Residential Invs., Inc., 12 Cal.
Rptr. 3d 846, 853 (Ct. App. 2004). Generally there is no obli-
gation to protect others from the harmful conduct of third par-
ties. However, California law imposes an affirmative duty on
business proprietors to protect their customers from foresee-
able third-party criminal conduct, an obligation that is derived
from the special relationship between a business proprietor
and his customers. See Morris v. De La Torre, 113 P.3d 1182,
1187-88 (Cal. 2005).
Appellants argue that the United States, as the owner and
operator of Club Metro, owed Roderick Little three specific
affirmative duties. First, the United States had a duty to
undertake “reasonable and minimally burdensome measures,”
such as calling 911, to protect Little from imminent or ongo-
ing criminal activity. See id. at 1188. Second, the United
States had a duty to take more burdensome measures, such as
hiring security guards, to protect Little from highly foresee-
able third-party crime. Ann M. v. Pac. Plaza Shopping Ctr.,
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863 P.2d 207, 215 (Cal. 1993). Third, because the United
States was Thomas’s landlord, it could be held “liable for fail-
ing to address the presence of a dangerous tenant or other per-
son on or about the property.” Hawkins v. Wilton, 51 Cal.
Rptr. 3d 1, 6 (Ct. App. 2006).
[3] All three of these duties are specific instances of a
landowner’s “general duty of maintenance, which is owed to
tenants and patrons.” Id. (internal quotation marks omitted).
The duty of maintenance is limited to the landowner’s prop-
erty. See Castaneda v. Olsher, 162 P.3d 610, 615 (Cal. 2007)
(“A landlord generally owes a tenant the duty . . . to take rea-
sonable measures to secure areas under the landlord’s control
against foreseeable criminal acts of third parties.” (emphasis
added)); Morris, 113 P.3d at 1191 (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)); Hawkins, 51 Cal.
Rptr. 3d at 6 (“A landlord may also be liable for failing to
address the presence of a dangerous tenant or other person on
or about the property.” (emphasis added)). While the United
States did owe the above three duties to Little when he was
at Club Metro, those obligations ended when Little drove off
the Naval Base. The United States did not have a duty to pro-
tect Little while he was at the Del Taco restaurant. Where
there is no duty, there can be no negligence.
Appellants argue that the United States need only have vio-
lated its duty to protect Little while Little was on the Navy
Base; the injury resulting from that violation, Little’s death,
need not have also occurred on the Navy Base. Appellants are
incorrect. There is no California Supreme Court decision
squarely on point, but intermediate appellate courts have held
that, if a proprietor is to be held liable in tort for the criminal
activity of third parties, that criminal activity must have
occurred on the proprietor’s property. See Mata v. Mata, 130
Cal. Rptr. 2d 141, 146 (Ct. App. 2003) (“[A] landowner or
possessor generally has no duty to take measures to prevent
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foreseeable violence occurring off the premises.”); Medina v.
Hillshore Partners, 46 Cal. Rptr. 2d 871, 874 (Ct. App. 1995)
(“Here the trial court ruled that landowner breached no duty
of care because the wrongful death involved an off-site shoot-
ing. We agree.”); Martinez v. Pac. Bell, 275 Cal. Rptr. 878,
882-83 (Ct. App. 1990) (“Pac Bell did not own, possess, or
control, and invited no one onto, the parking lot. It, thus,
owed no duty of care to protect appellant at that location.”);
Balard v. Bassman Event Sec., Inc., 258 Cal. Rptr. 343, 346
(Ct. App. 1989) (“[A]ny duty owed by respondent to appel-
lant regarding third-party criminal activity was confined to the
premises of Stanley’s Restaurant.”); Southland Corp. v. Supe-
rior Court, 250 Cal. Rptr. 57, 61-62 (Ct. App. 1988); Stein-
metz v. Stockton City Chamber of Commerce, 214 Cal. Rptr.
405, 407-09 (Ct. App. 1985).1
1The dissent relies on the California Supreme Court’s decisions in Mor-
ris v. De La Torre, 113 P.3d 1182, 1184-89, 1194 (Cal. 2005), and Ann
M. v. Pacific Plaza Shopping Center, 863 P.2d 207, 213-14 (Cal. 1993),
for the proposition that a business proprietor has a duty to protect his cus-
tomers “against foreseeable criminal attacks that become imminent on
property within the proprietor’s control, even where the attack culminates
on property outside the proprietor’s control.” Neither Morris nor Ann M.,
however, concerned criminal attacks that occurred outside the defendant’s
property, and do not answer the case at bar.
In Morris, the plaintiff was punched and stabbed in the defendant’s
parking lot, and then stabbed several more times on a nearby sidewalk.
113 P.3d at 1186. The California Supreme Court focused exclusively on
the initial fistfight and stabbing and emphasized that the defendant was
liable for those attacks because the parking lot was “subject to defendant’s
sole use and control.” Id. at 1191. The court said nothing about the second
stabbing, leaving it unclear whether the defendant was liable for the por-
tion of the attack that occurred outside the defendant’s property.
The decision in Ann M. is also silent on the issue of whether a business
owner can be held liable for criminal attacks that occur outside his prop-
erty. In Ann M., the court considered whether the landlord of a shopping
center breached its duty to maintain the common areas of the shopping
center in a reasonably safe condition because it did not employ security
guards to patrol those areas. 863 P.2d at 209. The plaintiff was attacked
while working in a store in the mall. Id. at 210. The landlord was responsi-
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Even if the United States’ affirmative duty to protect
extended beyond the Naval Base, the United States still could
not be held liable for Little’s death because his death was not
the result of foreseeable criminal activity. See Morris, 113
P.3d at 1188; Ann M., 863 P.2d at 214 (“[F]oreseeability is a
crucial factor in determining the existence of duty.”).2 For
ble for the common areas of the mall but not the stores, which it leased
to tenants. Id. at 209-10. The court explained that a landlord can be held
liable for crimes that occur within a tenant’s unit, even though the landlord
may not control that unit, so long as the crime was the result of the land-
lord’s failure to maintain common areas within its control. Id. at 213 (cit-
ing Frances T. v. Vill. Green Owners Ass’n, 723 P.2d 573 (Cal. 1986);
O’Hara v. Western Seven Trees Corp., Intercoast Mgmt., 142 Cal. Rptr.
487 (Ct. App. 1977)). The California Supreme Court focused on the obli-
gation of a landlord to protect tenants who are inside his property, and said
nothing about the obligation of a business owner to protect customers who
venture off his property.
The California Supreme Court has never squarely addressed whether
business owners can be held liable for crimes that do not occur on their
property. Several intermediate appellate courts in California have held that
they cannot. See supra at 12178-79. Those decisions are not inconsistent
with Ann M. or Morris, and we are bound to follow them. See Ryman v.
Sears, Roebuck & Co., 505 F.3d 993, 994 (9th Cir. 2007) (“[W]hen (1) a
federal court is required to apply state law, and (2) there is no relevant pre-
cedent from the state’s highest court, but (3) there is relevant precedent
from the state’s intermediate appellate court, the federal court must follow
the state intermediate appellate court decision unless the federal court
finds convincing evidence that the state’s supreme court likely would not
follow it.”).
2To determine the scope of a business owner’s affirmative duty to pro-
tect, California courts consider the factors listed in Rowland v. Christian,
443 P.2d 561, 564 (Cal. 1968):
[T]he foreseeability of harm to the plaintiff, the degree of cer-
tainty that the plaintiff suffered injury, the closeness of the con-
nection 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 defen-
dant and consequences to the community of imposing a duty to
exercise care with resulting liability for breach, and the availabil-
ity, cost, and prevalence of insurance for the risk involved.
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example, in Morris, the California Supreme Court held that
the foreseeability requirement was satisfied because the attack
against the plaintiff “actually occurr[ed] in plain view” of the
defendant business owner. 113 P.3d at 1189. And in Delgado
v. Trax Bar & Grill, the court held that the defendant bar
owner should have foreseen that plaintiff was going to get
into a fight with another restaurant customer, 113 P.3d at
1162, because plaintiff’s wife told a security guard at the bar
that there was going to be a fight between her husband and the
third customer, the guard asked plaintiff to leave the bar in
order to separate him from the other customer, and the guard
saw the customer follow plaintiff into the parking lot, id. at
1172.
[4] The only indication the United States had that Thomas
was going to kill Little was when two security guards at the
exit from the Navy Base heard someone in a passing car say,
“I’m going to do a 187.” Although the guards understood this
statement as a death threat, they did not see who made the
threat, know who was the target of the threat, or see the
license plate number of the car. Nor did they know whether
the threat was real or, instead, empty bravado. Even if the
officers had known that the threat was sincere and had known
who the intended target was, they could not have known that
Thomas was going to go back to Sanders’s apartment, pick up
a gun, return more than half an hour later to the Del Taco res-
taurant several blocks away from the exit at which they were
stationed, and shoot Little in cold blood. See, e.g., Wiener v.
Southcoast Childcare Ctrs., Inc., 88 P.3d 517, 525 (Cal.
2004); Morris, 113 P.3d at 1189; Ann M., 863 P.2d at 216.
The crime was not foreseeable and, therefore, the United
States did not have a duty to protect Little from that crime.
See also Morris, 113 P.3d at 1192. While all of these considerations are
relevant, foreseeability is both relevant and necessary. See Delgado v.
Trax Bar & Grill, 113 P.3d 1159, 1166 (Cal. 2005). Because we conclude
that Thomas’s drive-by shooting was not foreseeable, we need not address
the other Rowland factors.
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II. Negligent Provision of Security Services
[5] Appellants also argue that the United States, having
chosen to provide security services at Club Metro, failed in its
duty to exercise due care in providing those services. See Del-
gado, 113 P.3d at 1175. Under the negligent undertaking doc-
trine, a volunteer may be held liable for trying to protect
others only if, in so doing, he increases the risk of harm to
third parties. See id.; Paz v. State, 994 P.2d 975, 981 (Cal.
2000). To measure increased risk, we must compare the risk
of harm to Little that existed on the night of the shooting with
the risk that would have existed had the United States pro-
vided no security services at Club Metro, not with the risk that
would have existed had the United States provided reasonably
competent security services. See Paz, 994 P.2d at 981.
Because Little would not have been safer had there been no
security guards at Club Metro, Appellants’ negligent under-
taking claim fails.
III. Landlord Theory of Liability
[6] Finally, Appellants argue that their final claim against
the United States, that the United States had a duty as Thom-
as’s landlord to protect third parties from Thomas once it
became aware that Thomas was dangerous, survived summary
judgment because the district court did not specifically
address this claim in its summary judgment order. Even if this
claim had been clearly pled in the Complaint,3 it would fail on
the merits; if the United States had an affirmative duty to pro-
tect Little from tenants it knew to be dangerous, that duty
extended only to the Naval Base, not to the Del Taco restau-
rant where Little was killed.
AFFIRMED.
3The Complaint nowhere mentions that the United States is liable for
Thomas’s criminal conduct because it was Thomas’s landlord. The Com-
plaint does not even contain the word “landlord.”
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PREGERSON, Circuit Judge, dissenting:
I respectfully dissent.
1. Consideration of the Rowland factors, including fore-
seeability, demonstrates that the United States owed
Navy Seaman Roderick Little a duty
In this case we must decide whether the United States owed
Navy Seaman Roderick Little a duty to take reasonable steps
to protect him from Marine Lance Corporal Myron Thomas’s
deadly criminal attack. The majority concludes that the
United States did not owe Seaman Little a duty because Lance
Corporal Thomas’s attack was not foreseeable. I respectfully
disagree.
Plaintiffs, Seaman Little’s mother and minor daughter,
brought suit against the United States under California negli-
gence law pursuant to the Federal Tort Claims Act. See 28
U.S.C. § 2674 (providing that, subject to certain exceptions,
the United States may be sued in the same manner and to the
same extent as a private individual under like circumstances);
Trenouth v. United States, 764 F.2d 1305, 1307 (9th Cir.
1985) (explaining that where a plaintiff brings suit under the
Federal Tort Claims Act, courts apply the law of the state in
which the alleged tort occurred).
Under California negligence law, business proprietors
(such as owners of bars, restaurants, and shopping centers)
may have a special-relationship-based duty to take reasonable
steps to protect their tenants, patrons, or invitees against fore-
seeable criminal acts of third parties. Morris v. De La Torre,
113 P.3d 1182, 1184 (Cal. 2005); Delgado v. Trax Bar &
Grill, 113 P.3d 1159, 1165 (Cal. 2005); Ky. Fried Chicken of
Cal. v. Superior Court, 927 P.2d 1260, 1263 (Cal. 1997); Ann
M. v. Pacific Plaza Shopping Ctr., 863 P.2d 207, 212 (Cal.
1993).
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As the California Supreme Court has explained, a propri-
etor’s duty is determined by considering the factors set forth
in Rowland v. Christian, 443 P.2d 561, 564 (Cal. 1968), in
light of the circumstances of the case. See Morris, 113 P.3d
at 1192; Delgado, 113 P.3d at 1172; Ky. Fried Chicken, 927
P.2d at 1263-1264; Ann M., 863 P.2d at 212. The Rowland
factors are:
the 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 liabil-
ity for breach, and the availability, cost, and preva-
lence of insurance for the risk involved.
Morris, 113 P.3d at 1192; Ann M., 863 P.2d at 212 n.5. Fore-
seeability is the most important of these factors. Delgado, 113
P.3d at 1166 n.15.
Viewing the evidence in the light most favorable to the
Plaintiffs, as we must on an appeal from the district court’s
grant of summary judgment, and examining the totality of the
circumstances in this case, Lance Corporal Thomas’s fatal
attack against Seaman Little was foreseeable. See Wiener v.
Southcoast Childcare Ctrs., Inc., 88 P.3d 517, 519 (Cal. 2004)
(explaining that on appeal from summary judgment, the evi-
dence is viewed in the light most favorable to the appellant);
Ann M., 863 P.2d at 214 (explaining that foreseeability is
determined by totality of the circumstances).
Club Metro is a bar and dance club located on the 32nd
Street Naval Base in San Diego. On November 18, 2003,
Lance Corporal Thomas and his friends attended Club Metro
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on the club’s weekly Hip Hop Night. Seaman Little and his
friends attended Club Metro that same night.
Club Metro security personnel, which consisted of active
duty U.S. Navy Shore Patrol and civilians, knew that there
was a history of violence at Club Metro. In the three years
preceding Seaman Little’s death, at least fifty fights had
occurred at Club Metro’s weekly Hip Hop Night, approxi-
mately thirty of which resulted in arrests.
At about 11:45 p.m. on the night in question, Lance Corpo-
ral Thomas and his friends got into a fight on the dance floor
with Seaman Little and his friends. Security personnel inter-
vened, but Lance Corporal Thomas, Seaman Little, and their
friends continued to exchange hostile words and gestures.
As they were leaving Club Metro at about 1:30 a.m., Lance
Corporal Thomas challenged Seaman Little to a fight in the
Club Metro parking lot. Club Metro security personnel,
believing that the altercation would become violent if they did
not intervene, physically separated the two groups. Even after
they were physically separated, however, Lance Corporal
Thomas, Seaman Little, and their friends continued to argue.
Club Metro security personnel ordered the men to leave the
base. At that point, Lance Corporal Thomas’s friends had to
physically restrain him to stop him from attacking Seaman
Little or Seaman Little’s friends. During this brouhaha, Club
Metro security personnel overheard spectators suggest that the
men continue their fight off base at the Del Taco, a fast food
restaurant located across the street from the North West cor-
ner of the Naval Base where people often gathered after leav-
ing Club Metro.
At about 2:00 a.m., two security guards, both Navy
Masters-at-Arms (“MA”),1 saw the car in which Lance Corpo-
1“The MA rating provides Navy Ships and commands with force pro-
tection/antiterrorism specialists who assist in maintaining good order and
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ral Thomas was a passenger run a stop sign as the car
approached the exit that the guards were manning. The guards
also overheard Lance Corporal Thomas and his friends argu-
ing with Seaman Little and his friends in a nearby car.
Shortly thereafter, as Lance Corporal Thomas and his
friends drove off the Naval Base, the two guards stationed at
the exit heard one of the car’s passengers shout, “We’re going
to do a 187.” When another passenger told the first speaker,
“shh, there goes the military police,” the first speaker,
responded, “I don’t give a fuck. We’re still going to do a
187.” The guards testified that when they heard this exchange,
they put their hands on their guns and took cover because they
understood the “187” statement to be a murder threat. The
guards did not, however, stop the car to investigate further,
and although they intended to report the murder threat to
Naval Base authorities, they failed to do so. Additionally, one
of the guards saw the car with the passenger who had just
shouted the murder threat drive toward the Del Taco, where
it was well known that people often gathered after leaving
Club Metro.
After leaving the base, Lance Corporal Thomas went and
got an AK-47. He then returned to the Del Taco, where he
shot and killed Seaman Little, who was standing in the park-
ing lot with his friends. The exit guards who had heard the
murder threat, heard the deadly shots ring out; they were still
thinking about reporting the murder threat. Based on all the
events that took place on the Naval Base, Lance Corporal
Thomas’s fatal attack against Seaman Little was foreseeable.
discipline, law enforcement, and physical security duties. MA’s enforce
appropriate orders and regulations, make apprehensions, conduct investi-
gations/interrogations and prepare required records and reports. Due to the
unique functions and trust inherent in the MA rating, the quality of person-
nel selected is of paramount importance and requires strict adherence to
eligibility criteria.” United States Navy, https://www.cool.navy.mil/
enlisted/desc/ma_description.htm (last visited April 29, 2010).
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Other Rowland factors also support the conclusion that the
United States owed Seaman Little a duty to take to take rea-
sonable steps to protect him against Lance Corporal Thomas’s
foreseeable criminal attack. First, the degree of certainty that
the Plaintiffs, Little’s mother and minor daughter, suffered
injury is absolute: Seaman Little is dead. Second, a duty in
these circumstances promotes the policy of preventing future
harm by encouraging proprietors to take minimally burden-
some measures, like calling 911, when a volatile situation
makes an imminent criminal attack foreseeable. Finally, a
duty to take reasonable, minimally burdensome measures,
such as calling 911, to prevent a foreseeable criminal attack
on a patron is a minor burden to proprietors. Thus, on balance,
the Rowland factors, including foreseeability, support the con-
clusion that the United States owed Seaman Little a duty to
take reasonable, minimally burdensome steps to protect him
from Lance Corporal Thomas’s fatal attack.
2. A proprietor’s duty does not turn on where a
foreseeable criminal attack ultimately culminates
The majority concludes that even if Lance Corporal Thom-
as’s fatal criminal attack was foreseeable, the United States
did not owe Seaman Little a duty because the attack did not
happen at Club Metro but instead happened at the Del Taco,
across the street from the Naval Base. I respectfully disagree.
Under California negligence law, business proprietors may
owe their tenants, patrons, or invitees a duty to take reason-
able, minimally burdensome measures to protect them against
foreseeable criminal attacks that become imminent on prop-
erty within the proprietor’s control, even where the attack cul-
minates on property outside the proprietor’s control. See
Morris, 113 P.3d 1182, 1184-89, 1194 (Cal. 2005); Ann M.,
863 P.2d 207, 213-214 (Cal. 1993).
In Morris, the California Supreme Court found that a res-
taurant proprietor had a duty to take reasonable and minimally
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burdensome measures to protect a patron from a criminal
attack that culminated on a public sidewalk. Morris, 113 P.3d
at 1186, 1194. In that case, third parties instigated a fight with
several restaurant patrons in a parking lot that was under the
restaurant’s control. Id. at 1186, 1190. While in the parking
lot, one of the third parties, in full view of the restaurant
employees, stabbed one of the patrons. Id. at 1186. The
patrons fled. Id. None of the employees called 911 or took
any other measures to prevent further attack. Id. The third par-
ties tracked down one of the patrons on a nearby public side-
walk and attacked him a second time, stabbing the patron
several more times. Id.
The California Supreme Court in Morris noted that the
attack culminated on the public sidewalk. Id. Nonetheless,
applying the Rowland factors, the California Supreme Court
concluded that the proprietor had a duty to take reasonable
and minimally burdensome measures to protect the patron. Id.
at 1194. Morris thus illustrates that whether a proprietor has
a duty to take reasonable, minimally burdensome measures to
protect a patron from a criminal attack turns on the foreseea-
bility of the attack and the other Rowland factors, not where
the attack finally culminates.
The majority in this case concludes that a proprietor’s duty
to take reasonable steps to protect patrons from third party
attacks is limited to attacks that take place on property under
the proprietor’s control. To support this view, the majority
cites the California Supreme Court’s statement in Morris that
a proprietor’s duty extends “to areas within the proprietor’s
control.” Maj. at 12178 (citing Morris, 113 P.3d at 1191).
Because the attack in Morris culminated on a public sidewalk,
the majority’s analysis implicitly reads Morris as holding that
although a proprietor’s duty may extend to criminal attacks
that commence on property within the proprietor’s control and
then continue on property outside of the proprietor’s control,
a proprietor’s duty may not extend to foreseeable criminal
attacks that become imminent on property within the propri-
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etor’s control but actually commence on property outside the
proprietor’s control. Other language in Morris and prior Cali-
fornia Supreme Court precedent, however, illustrate that this
reading of Morris is incorrect.
Indeed, elsewhere in Morris, the California Supreme Court
specifically explained that its foreseeability analysis “involv-
[ed] a proprietor’s duty to respond reasonably to criminal con-
duct that is imminent or even ongoing in his or her presence
. . . .” Id. at 1189 (emphasis added). The court reasoned that
“when assaultive conduct is imminent” it does not require
philosophical “mastery” or “economic risk analysis to appre-
ciate the strong possibility of serious injury to persons against
whom such imminent . . . criminal conduct is aired.” Id. This
language illustrates that a proprietor’s duty may extend to
foreseeable criminal attacks that become imminent on prop-
erty within a proprietor’s control, not just to criminal attacks
that actually begin on property within a proprietor’s control.2
This broader reading of Morris is also supported by reason-
ing in Ann M. (Ann M., 863 P.2d at 213-216), an earlier Cali-
fornia Supreme Court case cited to in Morris (See, e.g.,
Morris, 113 P.3d at 1187, 1188). In Ann M., the California
Supreme Court concluded that the fact that the criminal attack
occurred on property outside the proprietor’s control did not
preclude the existence of a duty on the part of the proprietor.
2The majority also cites the California Supreme Court’s statement in
Castaneda that “[a] landlord generally owes a tenant the duty . . . to take
reasonable measures to secure areas under the landlord’s control against
foreseeable criminal acts of third parties.” Maj. at 12178 (citing Castaneda
v. Olsher, 162 P.3d 610, 615 (Cal. 2007)). This positive statement, how-
ever, does not necessarily support the negative inference that a propri-
etor’s duty never extends to foreseeable criminal attacks that become
imminent on property within the a proprietor’s control but culminate on
property outside the proprietor’s control. See United States v. Turkette,
452 U.S. 576, 591 (U.S. 1981) (noting that “negative inferences” need not
be drawn from positive statements in legislative history). This is especially
true in light of the fact that Castaneda did not involve property outside the
proprietor’s control. Castaneda, 162 P.3d at 613-14.
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Ann M., 863 P.2d at 213 (“[T]he existence of a duty on the
part of Pacific Plaza to Ann M. is not precluded . . . by
[Pacific Plaza’s] lack of control over the premises where the
crime occurred.”). Instead, the California Supreme Court
explained, the heart of the inquiry was whether the criminal
attack could have been reasonably anticipated. Id.
Ann M. involved a proprietor’s duty to safely maintain the
common areas within his control to protect tenants and
invitees from foreseeable, future criminal attack (Id. at 213-
216), not a proprietor’s duty to take reasonable measures to
protect patrons from a foreseeable, imminent criminal attack.
In both cases, however, a proprietor’s duty is governed by the
Rowland factors. Morris, 113 P.3d at 1192; Ann M., 863 P.2d
at 212 n. 5. Therefore, the reasoning employed by the Califor-
nia Supreme Court in Ann M. is also instructive when deter-
mining a proprietor’s duty to protect a patron from a
foreseeable, imminent criminal attack.
In sum, I conclude that under California negligence law, a
proprietor may owe patrons a duty to take reasonable, mini-
mally burdensome measures to protect them from foreseeable
criminal attacks that become imminent on property within the
proprietor’s control, even where the criminal attack ultimately
culminates on property outside the proprietor’s control.
3. Conclusion
Applying California negligence law to the facts of this case,
the United States owed Seaman Little a duty to take reason-
able, minimally burdensome measures to protect him from
Lance Corporal Thomas’s foreseeable and deadly criminal
attack. This is why I respectfully dissent.
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