Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. Super. Ct. No. CV263696, Sidney P. Chapin, Judge.
Sands & Associates, Leonard S. Sands, Heleni E. Suydam and Kris Demirjian for Plaintiff and Appellant.
Murchison & Cumming and Maria A. Starn for Defendant and Respondent.
OPINION
DAWSON, J.
Plaintiff sued the owner of a large truck stop, alleging that its failure to provide adequate security was a cause of injuries he suffered when an unknown assailant struck him from behind while he was walking his dog. The trial court granted the owner’s motion for summary judgment on the grounds that (1) the owner owed plaintiff no duty and (2) plaintiff failed to show that the absence of additional security measures was a cause of his injuries.
Applying the analysis of causation set forth in the majority opinion of the California Supreme Court in Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763 (Saelzler), we conclude that plaintiff cannot show that the owner’s failure to provide additional security measures and precautions was a substantial factor in causing his injuries. As a result, the trial court properly granted summary judgment.
The judgment will be affirmed.
FACTS
Parties
Defendant TravelCenters of America Operating, LLC does business as TravelCenters of America (TravelCenters). TravelCenters operates a national chain of full service travel centers that offer professional truck drivers and other motorists various services including fuel, weigh scales, truck maintenance, food services, and showers. TravelCenters owns and operates a facility located on Wheeler Ridge Road in Arvin, California (Truck Stop). An off-ramp from Interstate 5 feeds directly into the Truck Stop’s parking lot, which makes it easy to enter and leave quickly.
Plaintiff Gregory Todd Coffee is a long-haul truck driver who used the Truck Stop in April 2006.
TravelCenters’ Version of the Facts
TravelCenters’ separate statement of undisputed facts asserted the facts contained in the following three paragraphs were undisputed.
Because this appeal involves a motion for summary judgment, we have relied on the parties’ separate statements to set forth the pertinent facts. (See Code Civ. Proc. § 437c, subd. (b)(1) [motion for summary judgment shall be supported by separate statement setting forth all undisputed material facts]; Cal. Rules of Court, rule 3.1350(d) [separate statement must identify each material fact claimed to be without dispute].)
Late at night on April 5, 2006, or early in the morning on April 6, 2006, Coffee (a professional truck driver) parked his truck and trailer near a weigh scale at the Truck Stop. While there, Coffee was injured. Around 2:00 a.m. on April 6, 2006, the Kern County Sheriff’s Department was called to the Truck Stop to investigate the incident that resulted in Coffee’s injuries. Deputy Ernesto Alvarado, the investigating officer, attempted to take a statement from Coffee but Coffee had no recollection of what happened or how he was injured. No witnesses of the injury-producing event were located. After examining Coffee and his truck, the investigating officer discounted the possibility of robbery. Coffee had possession of his wallet, money in the wallet, and jewelry on his person. Also, valuables, including a stereo and television, were still inside his truck. Coffee’s wounds included a cut on the back of his head, injuries to his elbows, and gravel embedded in his wounds.
Based on its investigation, the Kern County Sheriff’s Department reported the incident as a “suspicious circumstance.” The investigating officer did not discover any evidence to suggest the incident was the result of criminal conduct and was unable to determine whether Coffee was the victim of a crime or a victim of a fall. On June 30, 2006, (12 weeks after the incident) a followup investigation was performed by Senior Deputy Investigator Diana J. Craig. Her investigation did not reveal any evidence of third party criminal conduct.
TravelCenters had not received any reports of violent criminal conduct, including reports of assault and/or battery, occurring at the Truck Stop prior to April 5, 2006.
This assertion of fact is based on the declaration of Joe Laforet, TravelCenters’ claims manager who is based in Westlake, Ohio and reviewed an electronic database of claims submitted by managers of its facilities. Laforet stated that, as part of TravelCenters’ custom and practice, managers at each of its facilities are instructed to submit all customer personal injury claims and security incidents occurring on TravelCenters’ premises to the claims department.
Coffee’s Version of the Facts
Coffee’s separate statement asserts that TravelCenters’ version of the facts is incomplete or inaccurate in the following respects.
Coffee asserts he was struck in the back of the head by unknown assailants while he was on a grassy knoll at the Truck Stop, standing over his dachshund while she was on the grass.
The dog’s name was Ginger. Coffee described her as old and feeble, suffering from Cushing’s disease, and needing to urinate frequently.
Coffee also asserts the investigating officer, Deputy Alvarado, was unable to determine if Coffee was robbed or assaulted and, if he had discounted the possibility of robbery as asserted by TravelCenters, he would have titled his report as noncriminal instead of suspicious circumstance. The information Deputy Alvarado was able to get from Coffee at the scene was limited because Coffee was in a state of shock and somewhat nonresponsive. Also, evidence supports the conclusion that Coffee’s dachshund was stolen by the perpetrators as the dog would not have willingly left Coffee’s side and she was never found or seen in the area following the attack.
Although no one saw the incident that resulted in Coffee being injured, there were witnesses at the scene who, shortly before the incident, observed three men acting suspiciously and creating a disturbance significant enough to cause TravelCenters employees to call the security guard. No TravelCenters employees warned patrons about the suspicious persons.
Coffee also asserts that TravelCenters’ description of his injuries was incomplete. In addition to the wound on the back of his head, which necessitated staples, Coffee received stitches on his upper and lower lips, which came across at an angle. He also had bruising on the bottom of his chin. The injury to his right elbow required surgery. Coffee asserts the hospital records clearly show his injuries were consistent with an assault.
Coffee also disputes TravelCenters’ claim that it was unaware that criminal conduct was occurring at the Truck Stop.
Based on a sheriff’s call-out sheet, Coffee asserts that the sheriff’s department had been called out to the Truck Stop over 280 times in the previous four years for various criminal activities including assault, robbery, drug sales, and prostitution. Also, Senior Deputy Investigator Craig testified in her deposition that she had responded to a few brawls at the Truck Stop.
In addition to the foregoing, Coffee’s separate statement enumerates 27 items that he contends are additional disputed material facts. Because this opinion only addresses the issue of causation, our description of these additional disputed facts is limited to the facts related to that issue.
The video surveillance system at the Truck Stop did not cover the outside common areas, including the grassy rest area where Coffee was attacked. TravelCenters did not post any sign or warning regarding any safety or security hazard at the Truck Stop. According to Coffee’s security expert, TravelCenters should have had more than one security guard on duty, and a procedure should have been in place for the security guard to walk through the Truck Stop area, which would have ensured the security guard was highly visible and thus deterred crime. Coffee’s security expert also asserted the opinion that the lighting was insufficient to deter an assault at night. On the ultimate issue of causation, the security expert’s declaration stated: “[H]ad proper security measures … been in place it is more likely than not that the assault and possible attempted robbery of [Coffee] would not have occurred.”
PROCEEDINGS
In April 2008, Coffee filed a personal injury complaint against TravelCenters, alleging premises liability based on the negligent maintenance and operation of the Truck Stop and the failure to guard or warn patrons of a dangerous condition. Coffee alleged that the outside areas of the Truck Stop were improperly and inadequately patrolled and that video cameras were not working and their monitors were not staffed or watched on a regular basis.
In March 2009, TravelCenters filed a motion for summary judgment, contending Coffee’s premises liability claim failed as a matter of law because he could not establish (1) that TravelCenters owed him a duty to protect him against the violent attack of a third party or (2) that any act or omission by TravelCenters was a proximate cause of his injuries.
Coffee opposed the motion for summary judgment and filed objections to part of the evidence submitted by TravelCenters. Specifically, Coffee objected to TravelCenters’ use of excerpts from rough drafts of the depositions of Deputy Alvarado and Senior Deputy Investigator Craig of the Kern County Sheriff’s Department.
TravelCenters replied to Coffee’s opposition and filed its own objections to the evidence offered in declarations submitted by Coffee. It also lodged certified copies of the deposition transcripts that were the subject of Coffee’s evidentiary objections.
In July 2009, the trial court held a hearing on the motion for summary judgment. The court stated that the admissible evidence did not support the existence of a duty to provide additional security and, therefore, it ruled as a matter of law that TravelCenters breached no duty. In addition, the court stated that Coffee could not establish his injuries were caused by the failure to provide additional security measures.
The trial court’s minute order included explicit rulings on the evidentiary objections submitted by the parties. The court sustained both of Coffee’s evidentiary objections to the depositions that were uncertified rough drafts. It overruled two of TravelCenters’ objections and sustained the other 16.
On August 28, 2009, the trial court entered judgment in favor of TravelCenters. A month later, Coffee filed a notice of appeal.
DISCUSSION
I. Standard of Review
Defendants are entitled to summary judgment only if “all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)
Appellate courts determine whether triable issues of fact exist by independently reviewing the record that was before the trial court when it ruled on the defendant’s motion. (Martinez v. Combs (2010) 49 Cal.4th 35, 68.)
When undertaking this independent review, the appellate court must “view the evidence in the light most favorable to plaintiffs as the losing parties, resolving evidentiary doubts and ambiguities in their favor. [Citation.]” (Martinez v. Combs, supra, 49 Cal.4th at p. 68.) Stated otherwise, appellate courts “liberally construe plaintiffs’ evidentiary submissions and strictly scrutinize defendants’ own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiffs’ favor.” (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142 [premises liability claim brought against daycare facility for intentional criminal attack of third party].)
II. Evidentiary Objections to Plaintiff’s Evidence
Coffee contends that the trial court abused its discretion in sustaining TravelCenters’ objections to the declaration of his expert witness and to the sheriff’s call-out sheet.
We note that the question whether the abuse of discretion standard of review applies to all evidentiary rulings made in connection with a motion for summary judgment has not been resolved by the California Supreme Court. In Reid v. Google, Inc. (2010) 50 Cal.4th 512, the high court stated that “we need not decide generally whether a trial court’s rulings on evidentiary objections based on papers alone in summary judgment proceedings are reviewed for abuse of discretion or reviewed de novo.” (Id. at p. 535.)
In this appeal, we address only the issue of causation. Therefore, we will not review the trial court’s evidentiary rulings that excluded evidence related to the question of duty, such as the sheriff’s call-out sheet. Furthermore, rather than resolve the evidentiary issues related to the issue of causation, we will assume for purposes of argument that the evidence Coffee offered on that issue should have been admitted. For example, we will proceed as though the declaration of Coffee’s security expert was admitted into evidence by the trial court.
III. Proximate Cause of Injuries
To prevail on a premises liability claim based on the legal theory of negligence, a plaintiff must show that (1) the defendant owed the plaintiff a legal duty of care, (2) the defendant breached that duty, and (3) the breach was a proximate or legal cause of the plaintiff’s injury. (Saelzler, supra, 25 Cal.4th at p. 772.)
For purposes of this opinion, we will assume that Coffee has presented sufficient circumstantial evidence to create a triable issue of fact concerning whether he was hit from behind by an unknown assailant. Therefore, our analysis will be based on the assumption that Coffee was in fact attacked by a third party.
In addition, we will assume for purposes of reviewing this summary judgment motion that TravelCenters owed a duty of care to Coffee and that it breached that duty. Consequently, causation is the only element of Coffee’s negligence claim that we will address here.
A. Applicable Precedent
Our analysis of the question of proximate case is governed by the majority opinion of the California Supreme Court in Saelzler. In that case, the court addressed the liability of “business enterprises to persons injured on their premises by the criminal acts of others, a liability based solely on the business owners’ negligent failure to provide adequate security measures to protect those who enter their property.” (Saelzler, supra, 25 Cal.4th at p. 766.) The specific issue addressed was causation-that is, whether the defendants’ negligent acts or omissions regarding security measures were a substantial factor in causing the plaintiff’s injuries. (Id. at p. 772.)
In Saelzler, the plaintiff was a Federal Express delivery person who attempted to deliver a package to a resident of a 28-building apartment complex in the middle of the afternoon. (Saelzler, supra, 25 Cal.4th at p. 769.) When the plaintiff returned down a path at the apartment complex, three men confronted, beat, and attempted to rape her. (Ibid.) The assailants were never apprehended or otherwise identified. (Ibid.)
The plaintiff in Saelzler sued the owners of the apartment complex, arguing her injuries were caused by the owners’ negligent failure to provide adequate security measures, including daytime security patrols and properly functioning security gates. (Saelzler, supra, 25 Cal.4th at p. 769.) The defendant property owners moved for summary judgment, arguing that the plaintiff could not prove that the unidentified assailants would not have attacked her had the additional security measures been in place. (Ibid.)
The trial court granted summary judgment for the defendant property owners on the ground that the plaintiff failed to show the defendants’ breach of duty to safeguard her was a proximate cause of the assault. (Saelzler, supra, 25 Cal.4th at p. 771.) In a four-to-three majority opinion, the California Supreme Court agreed with the trial court and concluded that the plaintiff could not establish the proximate cause element of her negligence claim. (Id. at p. 781.) As a result, summary judgment in favor of the owners was upheld. (Ibid.)
Because Saelzler and this case both involve (1) a criminal attack by unidentified assailants and (2) a claim of premises liability based on the failure to provide additional security measures, we conclude that the majority’s discussion of proximate cause (i.e., the factual linkage between the attack and the lack of the additional security measures) in Saelzler is controlling here. (See Castaneda v. Olsher (2007) 41 Cal.4th 1205 [nonsuit for defendant property owner upheld; insufficient evidence for jury to find inadequate lighting and the absence of security guards were substantial factors in causing plaintiff’s gunshot wound].)
The Saelzler majority assumed for purposes of discussion that the defendants breached a duty to provide a reasonable degree of security to persons entering the premises “by failing (1) to keep all entrance gates locked and functioning, and (2) to provide additional daytime security guards to protect persons such as plaintiff.” (Saelzler, supra, 25 Cal.4th at p. 775.) The majority then addressed the plaintiff’s proof of a causal link by quoting the following treatise:
“As Professors Prosser and Keeton observe, ‘A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.’ (Prosser & Keeton, Torts (5th ed. 1984) § 41, p. 269, fns. omitted, italics added.)” (Saelzler, supra, 25 Cal.4th at pp. 775-776.)
In applying the more-probable-than-not standard to the facts of the case, the majority noted that the plaintiff’s inability to prove the identity or background of her assailants left open the possibility that the men were unauthorized trespassers or tenants who were authorized to be on the premises. (Saelzler, supra, 25 Cal.4th at p. 776.) If the assailants were tenants, they would not have been excluded by the use of locked security gates with guards stationed at every entrance. (Ibid.) And “the assault on plaintiff could well have been made by tenants” because the record contained a substantial number of incidents and disturbances involving tenants of the apartment complex, and the manager stated a juvenile gang was “headquartered” in one of the buildings. (Ibid.) In addition, the majority labeled the opinion of the plaintiff’s expert as speculative and concluded that the plaintiff could not show that the owners’ failure to provide increased daytime security at each entrance or functioning locked gates was a substantial factor in causing her injuries. “Put another way, she is unable to prove it was ‘more probable than not’ that additional security precautions would have prevented the attack.” (Saelzler, supra, 25 Cal.4th at p. 776.)
Later in its opinion, the majority stated that because the expert was unaware of the assailants’ identities, his opinion regarding causation was too tenuous to create a triable issue of fact regarding whether the absence of security guards or functioning gates was a substantial factor in the plaintiff’s assault. (Saelzler, supra, 25 Cal.4th at p. 781.)
The majority also addressed the plaintiff’s contention that she would not have been injured if the owners had hired roving security guards to patrol the premises during the day. (Saelzler, supra, 25 Cal.4th at pp. 776-777.) It stated that “the argument is entirely speculative, as assaults and other crimes can occur despite the maintenance of the highest level of security.” (Id. at p. 777.) Thus, “[d]espite her expert’s speculation, plaintiff [could not] show that roving guards would have encountered her assailants or prevented the attack.” (Ibid.)
B. Application to the Facts of this Case
In this case, Coffee contends it is more likely than not that, had additional security measures been used, the criminal assault on him would have been prevented. The additional security measures referenced by Coffee in his opening brief are “improved lighting, simple repair of a fence, adding one more security guard or simply having the security guard walk through the premises, proper signage of the security system in place, and expanding the existing security system to include video of the parking lot and outside rest areas, not just inside the main building and at the truck scale.”
1. Fence
Coffee’s separate statement asserts that additional disputed material facts include his assertion that the fence at the Truck Stop had a hole that provided potential criminals with easy undetected access and escape, allowing them to lie in wait for an unsuspecting victim. Coffee supports this assertion by referencing the declaration of his expert.
Here, as in Saelzler, Coffee is unable to identify his assailant or how the assailant entered and left the premises. Moreover, his separate statement referenced no physical or other evidence indicating that the fence was in fact used by the assailant for access or escape. Accordingly, like the claim of the plaintiff in Saelzler regarding the nonfunctioning gates, Coffee is unable to show that it was more likely than not that the assault would have been prevented if the hole in the fence had been repaired. (See Saelzler, supra, 25 Cal.4th at p. 776.)
2. Additional security guard
Coffee’s contention that an additional security guard would have prevented the assault is the same argument raised by the plaintiff in Saelzler and is subject to the same analysis and conclusion.
In Saelzler, the majority stated that “the argument is entirely speculative, as assaults and other crimes can occur despite the maintenance of the highest level of security, ” and concluded that, “[d]espite her expert’s speculation, plaintiff cannot show that roving guards would have encountered her assailants or prevented the attack.” (Saelzler, supra, 25 Cal.4th at p. 777.) We are bound by this precedent and therefore reject Coffee’s contention that the employment of another security guard to patrol outside the buildings would have prevented the assault.
We note that Coffee’s expert, Robert Feliciano, was also the expert used by the plaintiff in Saelzler. (Saelzler, supra, 25 Cal.4th at p. 771.)
3. Additional cameras and signage
Coffee also contends it is more likely than not that a more extensive closed circuit television system and signage identifying the property as protected by such a system would have prevented the assault. According to this contention, the assailant would have been deterred because the cameras increased the chances the assailant would have been identified and caught.
Coffee supports his contention regarding the deterrent effect of additional cameras with the opinion of his security expert and the deposition testimony of Senior Deputy Investigator Craig.
The expert, however, did not know (1) the identity of the attacker, (2) how the assault occurred, or (3) the reason for the assault. Consequently, the expert’s opinion that additional cameras would have deterred an unidentified assailant, like his opinion in Saelzler, is too tenuous to pass muster under the more-probable-than-not standard adopted there. (Saelzler, supra, 25 Cal.4th at p. 781 [in situation involving unknown assailants, expert’s opinion that the absence of security guards or functioning gates caused the assault was too tenuous to create a triable issue]; see Sarver v. TravelCenters of America, Inc. (9th Cir. 2008) 319 Fed.Appx. 460, 461 [expert’s bare assertion of causation failed to show defendant’s failure to implement security measures at truck stop actually caused plaintiff’s injuries].)
Similarly, Senior Deputy Investigator Craig’s testimony that “[i]f people knew that there were cameras filming them it might deter them a little bit” is too tenuous to establish that it was more probable than not that Coffee’s assailant would have been deterred by the existence of additional cameras and prominent signage. First, Craig did not offer the opinion that Coffee would not have been attacked if more cameras and prominent signage had been in place. Second, whether the additional “little bit” of deterrence that she referenced would have prevented the attack on Coffee is a matter of speculation because there is no evidence regarding how the assailants attacked Coffee or the reason for the attack.
4. Additional lighting
Coffee’s separate statement asserts a dispute of material fact existing over whether the lighting at the Truck Stop was insufficient to prevent or deter an assault in the middle of the night. To support his assertion, Coffee referenced his expert’s declaration, which stated: “The lighting was insufficient to prevent or deter an assault in the middle of the night.”
Again, under the majority opinion in Saelzler, we must find that the opinion of a security expert that additional lighting would have deterred “an assault” is insufficient to show it was more probable than not that this particular assault would have been prevented by additional lighting. (Cf. Castaneda v. Olsher, supra, 41 Cal.4th at p. 1223 [plaintiff failed to show absence of brighter common area lighting at mobilehome park was substantial factor in producing the confrontation and gunshot that wounded plaintiff].)
C. Conclusion
We are bound by the majority opinion in Saelzler to find that Coffee cannot show the requisite element of causation and thus to hold that summary judgment was proper.
DISPOSITION
The judgment is affirmed. Defendant shall recover its costs on appeal.
WE CONCUR: CORNELL, Acting P.J., GOMES, J.