Rotman v. MacLin Markets, Inc.

I agree with the majority that Rotman failed to introduce evidence to support the existence of a contract to provide security services to Rotman. Accordingly, I concur in the majority's disposition regarding the contract cause of action. However, I respectfully dissent from the affirmance of the directed verdict on the negligence cause of action. In my evaluation, the jury could have found that Maclin had assumed the duty to provide security.

The first cause of action of Rotman's complaint alleges that Maclin negligently failed to provide adequate security for the vendors in the market, as a proximate result of which Rotman's jewelry was stolen. After the nonsuit was granted as to the contractual claim, the jury trial proceeded as to the negligence theory. After Maclin had rested its defense, and at the trial court's suggestion, Maclin moved for a judgment of nonsuit and for a directed verdict on the ground that Rotman had failed to present evidence that Maclin had a duty to protect Rotman's property, relying on Royal Neckwear Co. v. Century City, Inc. (1988) 205 Cal.App.3d 1146 [252 Cal.Rptr. 810] (RoyalNeckwear).¹

In response to Maclin's contention that it had no duty to protect the vendors' property, Rotman argued that even if the law did not impose such a duty upon Maclin by virtue of the commercial landlord-tenant relationship, a jury could conclude from the evidence that Maclin had voluntarily assumed that duty. The trial court nevertheless granted the motion for directed verdict, mistakenly concluding from Royal Neckwear that there is "no duty on the part of a commercial [landlord] to guard the property of a tenant, whether he undertakes to do so or not."

The general rule is that a person (the defendant) who has not created a peril has no duty to protect another person (the plaintiff) from that peril, and thus incurs no tort liability for failing to do so, unless either (1) there is some relationship between them which gives rise to a duty to act, or (2) the defendant has voluntarily assumed that duty by undertaking to protect the plaintiff. (Williams v. State ofCalifornia (1983) 34 Cal.3d 18, 23 [192 Cal.Rptr. 233,664 P.2d 137]; Weissich v. County of Marin (1990) 224 Cal.App.3d 1069, 1076-1077 [274 Cal.Rptr. 342].)

Whether a particular relationship gives rise to a duty to act is a question of law. (Clarke v. Hoek (1985) 174 Cal.App.3d 208, 216 [219 Cal.Rptr. 845].) The issue in Royal Neckwear was whether a commercial landlord who has notice of previous criminal activity by third persons on the landlord's premises, such as burglaries of stores in a shopping mall owned by the landlord, owes a duty to its tenants to take reasonable steps to protect the tenants' stores from similar criminal activity on the landlord's premises in the future. (205 Cal.App.3d at p. 1151.) The Second District held that the relationship between a commercial landlord and its tenant does not give rise to a duty to protect the tenant's property. (Id., p. 1152.) Rotman does not challenge that holding and neither do I.²

However, while Royal Neckwear holds that a duty to protect a commercial tenant's property is not imposed by law, it does not address the second exception to the no-liability rule. In particular, it does not hold that the law will not enforce such a duty which has been voluntarily assumed by the landlord. Although one could argue from the facts in Royal Neckwear that the owner of the shopping center had assumed such a duty, that argument was not made there. "Opinions are not authority for issues they do not consider." (Palmer v. Ted Stevens Honda, Inc. (1987)193 Cal.App.3d 530, 539 [238 Cal.Rptr. 363].) Accordingly, RoyalNeckwear does not support the trial court's conclusion that even if Maclin had assumed a duty to protect Rotman's property, that duty was not enforceable.

To the contrary, it has been repeatedly held that when someone who is under no obligation to provide a service to another voluntarily undertakes to do so, he will be regarded as having assumed a duty to provide that service, and will be liable for negligence if he fails to use reasonable care in performing that duty. (See, e.g., Coffee v. McDonnell-Douglas Corp. (1972)8 Cal.3d 551, 557, fn. 6 [105 Cal.Rptr. 358, 503 P.2d 1366];Schwartz v. Helms Bakery Limited (1967) 67 Cal.2d 232, 238 [60 Cal.Rptr. 510,430 P.2d 68]; Hayes v. Richfield Oil Corp. (1952)38 Cal.2d 375, 384 [240 P.2d 580]; 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 868, pp. 234-235.) In particular, ". . . a landlord may be liable to his tenant for misfeasance in negligently performing a task that he has assumed. In such case he owes a duty to the tenant to perform such task with reasonable care." (Black v. Partridge (1953) 115 Cal.App.2d 639, 645 [252 P.2d 760], and cases cited therein; and see 4 Witkin, Summary of Cal. Law, supra, Real Property, § 598, pp. 777-778.)

Whether a defendant has voluntarily assumed duties above and beyond those imposed by law is a question of fact for the jury. For instance, in Williams v. Saga Enterprises, Inc. (1990)225 Cal.App.3d 142 [274 Cal.Rptr. 901], the plaintiff was injured in an accident after he had driven away from a bar, apparently after imbibing too much alcohol. He sued the bar, which then moved for summary judgment on the ground that it was statutorily immune. (Civ. Code, § 1714) He opposed the motion for summary judgment with evidence that when visiting the bar, on that and on prior occasions, he would give his keys to the bartender, to be returned only if he was able to drive when he was ready to leave. The trial court granted summary judgment in favor of the bar, but the Court of Appeal reversed. It held that although the bar had no duty to the plaintiff imposed by law, the evidence that the plaintiff had placed his keys with the bartender was sufficient to create a triable issue of fact as to whether the bar had voluntarily undertaken the duty to withhold the plaintiff's keys if he was not fit to drive his vehicle. (225 Cal.App.3d at pp. 145, 151.)

Contrary to the majority, I believe that there is comparable evidence from which a jury could have found that Maclin had assumed the duty to provide security for Rotman's property. Rotman and his wife testified that Larsen told them that Maclin employed security guards to make the market more secure and to take care of any problems that happen in the market. Rotman also recalled an occasion when he expressed his concern to one of the security guards regarding "shady characters" and gang members in the market, and the guard replied, "``Don't worry about it. We'll take care of you. Don't worry. We're all under control.'" He also recalled that when he first met Maclin's chief of security, he told Rotman, "``I'm the head of the security here and, you know, we organize the security here, and if you have any problems, we're aware of your sensitivity, you know, being a jeweler, you don't have to worry. . . .'"

Similarly, Rotman's employee testified that the security guards told her that if she had any problems, she should let them know. Accordingly, whenever she had a problem, she would go to the security guards, and they would usually take care of it. For instance, when she saw someone who looked suspicious, she would alert the security guards, who would respond, "``Don't worry about it; we'll take care of it.'" The guards gave her the impression that they were there to help keep thefts from occurring.

Maclin's chief of security testified that his duties included being a visual deterrent to criminal activity, including thefts, and attempting to apprehend any perpetrators of crimes which he had witnessed. "As much as possible within the limits of security officers' rights and the rights of private citizens['] arrest," the guards were to prevent crimes against the vendors. If a theft occurred, their goal was to attempt to catch the thief and to have the person in whose presence the theft was committed place the thief under citizen's arrest.

While Larsen denied at trial that Maclin has ever attempted to provide security services to the vendors, he also testified that one of the purposes of the security guards was to visually deter any "undesirables" from committing any kind of criminal activity, for the benefit of "Maclin Markets and everybody. . . ." Furthermore, if one of the guards witnessed a vendor being robbed, Larsen expected the guard to assist the vendor by making a citizen's arrest, if that could be done safely. If he did not witness the offense, the guard would be authorized but not required to assist the vendor in finding the robber, as a gesture of good will, a "kind of a Good Samaritan thing. . . ."

The majority concludes that this is not substantial evidence tending to prove that Maclin assumed a duty to protect Rotman's property. However, in reaching that conclusion, it focuses, not on the evidence supporting the existence of an assumption, but rather on conflicting evidence which tends to disprove any such assumption. (Maj. opn., ante, p. 1716.) This is contrary to the standard governing our review: "In our consideration of this appeal we must take as true all evidence tending to prove the [plaintiff's] case, together with all reasonable inferences to be drawn from such evidence, [and] disregard all evidence which does no more than raise a conflict with that of the [plaintiff]." (Estate of Fossa (1962) 210 Cal.App.2d 464, 466 [26 Cal.Rptr. 687] .)

Applying that standard of review, I find that the testimony of these witnesses, and particularly that of the chief of security, constitutes substantial evidence from which a jury could find that Maclin had voluntarily assumed the duty to protect Rotman's property from theft and to apprehend the perpetrator of any theft which it was unable to prevent. Thus, in my opinion the trial court erred in concluding that there was no evidence that Maclin owed a duty to Rotman and in directing a verdict in Maclin's favor.

I would reverse the judgment.

¹ Actually, Maclin never expressly stated the ground for the motion. However, the motion was prompted by the trial court's suggestion that Maclin renew its earlier motion for nonsuit, which as to the negligence count had been based on an alleged lack of evidence of facts giving rise to a duty. Moreover, when the trial court explained its concerns at the beginning of the hearing on the motion for directed verdict, it focused on the lack-of-duty analysis in Royal Neckwear. Thus, it is clear that the motion for directed verdict was brought on the ground of a lack of evidence of any duty by Maclin to protect Rotman's property.

² While acknowledging that numerous cases have found that a landlord has a duty to protect its tenants, Royal Neckwear draws a distinction between a duty to protect the tenants from personal injury and a duty to protect the tenants from a pecuniary loss of property, and distinguishes those contrary cases on that basis. (205 Cal.App.3d at pp. 1151-1152.) The analysis in support of its announcement of that critical distinction is rather brief. However, there is no occasion to decide in this case whether that conclusion is correct, because Rotman conceded in the trial court that there was "no question" but that Royal Neckwear correctly states the law.