S. Eisenbaum from Gray•Duffy’s Encino office obtains
summary judgment in favor of one of the firm’s clients in a case
involving an attempted robbery where the plaintiff was shot and injured.
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
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 company’s 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 plaintiff’s 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 plaintiff’s 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
plaintiff’s 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.
For assistance with legal matters regarding premises liability and security
negligence in Chicago, you might want to visit website of experienced attorneys.
Edward James Marshall v. Playa L&M
Enterprises, et al.,
Los Angeles Superior Court Case No. YC049786.
Mr. Eisenbaum on his success. To learn more about Mr. Eisenbaum and his
background, please click here.
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.