Third-party criminal acts and a non-delegable duty

Lessons from Bryan Stow v. Los Angeles Dodgers

Nicole DeVanon
2015 March

Brian Stow was brutally attacked by another spectator, Louie Sanchez, at Dodger Stadium. As early as opening statements in Bryan Stow v. Los Angeles Dodgers, two things about Dodgers’ strategy became clear: (1) blame Bryan Stow and (2) blame the LAPD. This article focuses on the second strategy and the applicability of the law of non-delegable duty in a case involving inadequate security. However, the starting point is California’s law with regard to a landowner’s tort liability for third-party criminal acts.

Law on third-party criminal acts

Under Civil Code section 1714, subdivsion (a), the general rule in California is that each person has a duty to use ordinary care and is liable for injuries caused by his failure to exercise reasonable care in the circumstances. (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 771.) Although a duty to exercise reasonable care is the general rule under Civil Code section 1714, the Supreme Court has “identified several considerations that, when balanced together, may justify a departure from the fundamental principle embodied in Civil Code section 1714 ....” (Ibid.) These are the so-called Rowland factors, drawn from Rowland v. Christian, (1968) 69 Cal.2d 108, 113. In some circumstances, the Rowland factors will support “an exception to the general rule of Civil Code section 1714,” but the Supreme Court has emphasized that “courts should create one only ‘where clearly supported by public policy.’” (Cabral, supra, 51 Cal.4th at p. 771, quoting Rowland, supra, 69 Cal.2d at p. 112).

The most important of the Rowland factors in cases involving third-party criminal liability is foreseeability. To justify a departure from the general rule of reasonable care under Civil Code section 1714, the defendant must “show lack of foreseeability for the entire category” of conduct at issue. (Cabral, 51 Cal.4th at p. 1178). The court’s task is not to determine whether a particular plaintiff’s injury was foreseeable in light of a particular defendant’s conduct, but to evaluate more broadly whether this general type of conduct is foreseeable. (Id. at pp. 1175, 1178-1179; see also Bigbee v. Pacific Tel. & Tel. Co., (1983) 34 Cal.3d 49, 57-58 [“it is settled that what is required to be foreseeable is the general character of the event or harm ... not its precise nature or manner of occurrence”]). “A defendant may owe an affirmative duty to protect another from the conduct of third parties if he or she has a ‘special relationship’ with the other person.” (Delgado v. Trax Bar & Grill, (2005) 36 Cal.4th 224, 235). “Courts have found such a special relationship in cases involving the relationship between business proprietors ... and their tenants, patrons, or invitees” (Ibid).

“The duty of a proprietor of a business establishment to business invitees generally includes a ‘duty to take affirmative action to control the wrongful acts of third persons which threaten invitees where the occupant has reasonable cause to anticipate such acts and the probability of injury therefrom.’” (Kentucky Fried Chicken of Cal., Inc. v. Superior Court, (1997) 14 Cal.4th 814, 819, quoting Turner v. Centennial Bowl, Inc., (1966) 65 Cal.2d 114, 121; see also Isaacs v. Huntington Memorial Hospital, (1985) 38 Cal.3d 112, 131 [holding hospital had duty to take precautions to protect physician from criminal assaults in parking lot], overruled on other grounds in Ann M. v. Pacific Plaza Shopping Center, (1993) 6 Cal.4th 666, 678. This duty extends beyond the structure itself to areas within the proprietor’s control, including parking lots. Morris v. De La Torre, (2005) 36 Cal.4th 260, 274 [restaurant owed duty to protect victim of stabbing in restaurant’s parking lot]; Onciano v. Golden Palace Restaurant, (1990) 219 Cal.App.3d 385, 393-394 [restaurant owed duty to protect victim of assault and robbery in restaurant’s parking lot]).

This rule applies to a business owner’s liability for injuries inflicted by one spectator upon another at sports events. (Sample v. Eaton, (1956) 145 Cal.App.2d 312, 316). In Sample, for example, the court held that the proprietor of a wrestling club could be liable for personal injuries sustained by a spectator when he was struck by a bottle of Coca-Cola thrown by another spectator. The court reasoned that a business owner “is under a duty to protect his invitees ‘by taking appropriate measures to restrain conduct by third persons which he should be aware of and which he should realize is dangerous.’” (Id., quoting Edwards v. Hollywood Canteen, (1946) 27 Cal.2d 802, 810).

In the Stow case, the Dodgers continuously focused on the same legal issues throughout the case: (1) Dodgers had no duty to eject Louie Sanchez, Bryan Stow’s attacker, from the stadium; (2) Dodgers had no duty to provide greater or different security. Under Cabral, the existence of a legal duty must be determined at a broad level of generality – focusing primarily on the foreseeability of the general category of conduct, rather than the facts of the specific incident. By contrast, breach of a legal duty is a fact-specific question for the jury to decide. (Id., at p. 772).

Applying a proper duty analysis, the Dodgers owe a duty to exercise reasonable care to protect baseball fans from foreseeable assaults by other fans, including but not limited to the following security measures: (i) ejecting unruly or violent fans whose conduct poses a threat of harm to others, (ii) providing protection to fans who are threatened or harassed by others, (iii) providing adequate security in all areas of the stadium, including the stadium parking lots before, during, and after games; (iv) providing adequate training to security personnel; (v) enforcing their own rules and regulations including the Dodger Fan Code of Conduct; and (vi) providing adequate lighting of the parking lots.

Foreseeability of the attack

Although businesses owe a duty to their patrons to protect them from foreseeable third-party criminal attacks on their premises, the foreseeability of Louie Sanchez’s violence against Brian Stow was a factual dispute.

As with every case, the facts were a mixed bag. The facts presented at trial showed: on March 31, 2011, the Dodgers had the largest security force present in its history. According to the Dodgers, their opening day security force (including Los Angeles Police Department (“LAPD”)) totaled 437 personnel. In addition to Dodger Security present on opening day, LAPD had its own contingency of on-duty officers present both on Dodger property and the adjacent parks. The number of LAPD present had been steadily increasing. In 2010, there were 166 LAPD officers and, in 2011, that number increased again to 195 LAPD officers. Throughout the trial, defense counsel continuously referred to the LAPD and specifically the contingent of LAPD officers that had been assigned to monitor the 27 parking lots at Dodger Stadium.

However, in addition to the above-mentioned facts, there were some more favorable facts, as well. First, the two Dodger Security guards assigned to monitor lot 2, the location of the Stow assault, did not make it to their designated post until well after the brutal attack on Bryan Stow. Second, there was no evidence that LAPD was anywhere near the vicinity of the assault. Several witnesses from inside the stadium came forward to testify regarding Louie Sanchez’s violent conduct which he began exhibiting from the second inning through his encounter with Bryan Stow (well after the game had ended). Third, before attacking Bryan Stow, Louie Sanchez had assaulted five other people.

On the other hand, despite the fact that Louie Sanchez had continuously been engaging in violent conduct while at Dodger Stadium, not a single Dodger employee witnessed the behavior. The Dodgers had two responses to these allegations (1) it must not have been that bad since no one reported it; and (2) the LAPD, who was also present at the Stadium, did not catch the behavior either.

It became vital to debunk the theory that the LAPD was responsible for monitoring Louie Sanchez’s behavior while he was present on private property. They key to doing so was focusing on the law of non-delegable duty, and creating a custom jury instruction concerning that duty.

Law on non-delegable duty

It is now well established that California law requires landowners to maintain land in their possession and control in a reasonably safe condition.” (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674). This duty is an incident of the landowner’s right to control and manage the premises: “[T]he duty to take affirmative action for the protection of individuals coming upon the land is grounded in the possession of the premises and the attendant right to control and manage the premises.” (Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 368).

“‘The duty which a possessor of land owes to others to put and maintain it in reasonably safe condition is nondelegable.’ [Citation.]” (Brown v. George Pepperdine Foundation (1943) 23 Cal.2d 256, 260). “The nondelegable duties doctrine prevents a party that owes a duty to others from evading responsibility by claiming to have delegated that duty to an independent contractor hired to do the necessary work.” (SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 600). In such circumstances, a landowner is not entitled to have fault apportioned with the negligent third party under Proposition 51. (Srithong v. Total Investment Co. (1994) 23 Cal.App.4th 721, 727-728).

In Brown, for example, a child was injured after falling down an elevator shaft in an apartment building owned by the defendant, who had contracted with an elevator maintenance company for weekly inspections of the elevator. (Brown, supra, 23 Cal.2d at pp. 258-259). Applying the doctrine of nondelegable duties, the Supreme Court held: “A landlord cannot escape liability for failure to maintain elevators in a safe condition by delegating such duty to an independent contractor.” (Id. at pp. 259-260).

Although there is no published California case law directly on point, courts in other jurisdictions have confirmed that the doctrine of nondelegable duties applies to a landowner’s duty to protect business invitees from the criminal assaults of third parties. (See, e.g., Simon v. Safeway, Inc. (Ariz. Ct. App. 2007) 173 P.3d 1031, 1040 [“we hold that when ... a business owner assumes a duty to provide security services, that duty is nondelegable ....”]; Rockwell v. Sun Harbor Budget Suites (Nev. 1996) 925 P.2d 1175, 1179 [“in the situation where a property owner hires security personnel to protect his or her premises and patrons, that property owner has a personal and nondelegable duty to provide responsible security personnel”]; U.S. Sec. Services Corp. v. Ramada Inn, Inc. (Fla. Ct. App. 1995) 665 So.2d 268, 270 [landowner’s “duty to provide its business invitees with reasonably safe business premises, including reasonable protection against third-party criminal attacks, is a non-delegable duty”].)

Applying these authorities, the Dodgers should not have been allowed to escape liability by blaming third parties who assisted them in fulfilling their nondelegable duty to provide adequate security for the protection of business invitees on their property. As the landowners with the nondelegable duty, to the extent the Dodgers blamed the LAPD, they necessarily attempted to shift legal responsibility to others who may have helped them perform their nondelegable duty. They could not do that. To the extent the Dodgers shared the performance of their own nondelegable duty with the LAPD or other third parties, they remained legally responsible for any breach. (See Brown, supra, 23 Cal.2d at pp. 259-260).

The Dodgers argued that the doctrine of nondelegable duties did not apply because the LAPD technically was not an “independent contractor.” But the Supreme Court long ago made clear that a landowner’s liability should not be determined based on “rigid common law classifications.” (Rowland v. Christian (1968) 69 Cal.2d 108, 118). The Dodgers chose to partner with the LAPD and others to fulfill their own nondelegable duty to provide adequate security for the baseball fans on their own property. The whole point of the doctrine of nondelegable duties is that a landowner cannot escape liability by parceling out the performance of the duty to others. By analogy, a car owner surely could not escape liability for a breach of the nondelegable duty to ensure that his vehicle’s brakes are in working order by attempting to shift the blame to a friend who worked on the brakes for him. (See Maloney v. Rath (1968) 69 Cal.2d 442, 446-447 [holding that car owners cannot delegate their duty to ensure that their cars have working brakes]).

Allowing the Dodgers to escape liability by shifting blame to the LAPD would defeat the basic purpose of the doctrine of nondelegable duties. The rationale is “‘to assure that when a negligently caused harm occurs, the injured party will be compensated by the person whose activity caused the harm.’ [Citation.]” (Srithong, supra, 23 Cal.App.4th at p. 727). “The ‘recognition of nondelegable duties tends to insure that there will be a financially responsible defendant available to compensate for the negligent harm caused by that defendant’s activity.’ [Citation.]” (Ibid).

If the Dodgers could avoid liability just by blaming the LAPD, that would have left Stow without any financially responsible defendant to compensate for the harm caused by the Dodgers’ activity. The LAPD and its employees would be immune from liability for any negligence in failing to provide adequate protective services or failing to arrest or detain Norwood and Sanchez. (Gov. Code, §§ 820.2, 845, 846). It was the Dodgers’ defendants who benefited financially from the sales of tickets to the game; they owned and controlled the stadium and parking lot; it was their nondelegable duty to protect the fans to whom they sold tickets; they voluntarily partnered with others to fulfill this duty; and they should be the ones who are financially responsible for the harm to Stow.

Applying the duty: practical suggestions

• Motions in limine

In order to prevent your opponent from blaming a third party for the injury to your client, the best place to start is pre-trial, filing a motion in limine. Although we filed such a motion in the Stow case, it was denied. Thus, we began crafting a special instruction to address the issue. However, because the instruction was not given until the end of the case, we continuously emphasized one fact: Dodger Stadium and its surrounding parking lots are private property. This was central to our argument.

If something similar happens in your case, and the court denies your motion in limine, other ways remain to prevent defendant’s blame-shifting defense to influence the jury.

• Verdict forms

Despite the law preventing Dodgers from delegating its safety duty to the LAPD, as the parties were finalizing the verdict form, Dodgers requested a line for “others” for apportioning fault. If a defendant attempts a similar back-door liability shifting strategy in your case, make sure to object. In Stow, plaintiffs objected to the “unspecified others” on the basis that CACI VF- 402 requires the “name/description of the first nonparty.” There is no option for “unspecified others.”

Additionally, “a defendant bears the burden of proving affirmative defenses and indemnity cross-claims. Apportionment of noneconomic damages is a form of equitable indemnity in which a defendant may reduce his or her damages by establishing others are also at fault for the plaintiff’s injuries. Placing the burden to prove fault as to nonparty tortfeasors is not unjustified or unduly onerous.” (Wilson v. Ritto, 105 Cal.App.4th 361, 369.) The Dodgers had failed to meet their burden in this regard. Thus, there was no legal basis for adding others to the verdict form. The Court denied their request.

• Special instruction on the issue of non-delegable duty

In these circumstances, crafting a custom jury instruction was crucial. Ultimately, the below instruction was given to the jury:

One who controls and manages premises has an affirmative duty to take action for the protection of individuals coming on to those premises. This duty is non delegable. A landowner cannot escape liability for failure to maintain property in a safe condition by delegating the duty or shifting responsibility to a third party.

The authority we relied on for that instruction included: Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 368; Brown v. George Pepperdine Found, (1943) 23 Cal.2d 256, 260; 259-260; and Srithong v. Total Inv. Co. (1994) 23 Cal.App.4th 721, 726.

• Argument

The jury was first introduced to this custom instruction during closing arguments. We introduced the instruction at the start of closing arguments and continued to emphasize its importance. After all, the instruction completely debunked what Dodgers had spent most of trial emphasizing − it was someone else’s responsibility.

Tom Girardi emphasized this point in closing arguments, “So what did we hear in this case? There is a huge defense in this case, and it’s the ABMD defense, anybody but McCourt Dodgers – right? – the LAPD, the CHP, the FBI, fans, et cetera…. And the law says that you have to follow – no kidding on this one. He can’t delegate – the owner of this property can’t delegate it to anybody else. It’s his ballgame. He has to keep that property safe.”


In the end Bryan Stow received a verdict in his favor. Stadium violence continues to be a hot topic as more and more incidents of fan-on-fan violence occur. Further, the law with regard to third-party criminal acts is continuing to evolve. It is important to anticipate who your opponent will claim was responsible for security. But, should this occur, as it likely will, remember this duty is non-delegable.

Acknowledgements: A special thank you to Martin Buchanan. Martin is a talented appellate lawyer (and a generally great guy) who worked tirelessly on many of the motions filed in the Stow v. Dodgers case. Much of the argument and case law from those motions was used to craft this article. Additionally, a special thank you to the rest of the Stow v. Dodgers trial team: Thomas V. Girardi, David Lira, and Christopher T. Aumais.

Nicole DeVanon Nicole DeVanon

Nicole DeVanon is an attorney at Girardi | Keese. Admitted in 2012, she is a graduate of the University of Colorado at Boulder and Southwestern University School of Law.

Third-party criminal acts and a non-delegable duty

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