Murder Committed at Restaurant Does not Give Rise for Premises Liability

By R. Anthony Moya, Esq.

Carlos Alvarez ("Alvarez") and his companions went to Shakey's Pizza Restaurant ("Shakey's") on Sunset Boulevard in Hollywood for dinner. Alvarez's companions included three adult men, three adult women, and two children. After ordering food, the men took the children to the Shakey's game room while the women remained at their table. At a nearby table, three men with a video camera were seated. The three men were intoxicated, made offensive remarks to the women and aimed the video camera at them in an offensive manner. A restaurant employee witnessed the videotaping, but the women did not complain to the restaurant's employees.

After being told what had happened by the women in his group, Alvarez and his friends confronted the three men. A loud argument ensued and a challenge to fight was made. A restaurant employee then approached the two groups and tried to calm everyone down. He told everyone that he was going to call the police. The employee then told the manager what had occurred and police were called because the argument continued to escalate. The two groups of arguing men then went out to the restaurant's parking lot as did some of the restaurant's employees.

A brief skirmish followed but no one was hurt. Most people then returned to the restaurant and, as they did, insults were again aimed at Alvarez and his female companions. The intoxicated patrons stated that they did not consider the matter over and that they would return later with a weapon. It does not appear that any restaurant employee was aware of the threat to return with a weapon. Alvarez expressed a desire to leave, but Shakey's employees assured them that the police had been called and that everything would be fine. Alvarez and his group returned to their table and were served dinner. Restaurant employees were never told of the threat from the intoxicated patrons to return with a weapon.

Los Angeles Police Officers responded to the call made by Shakey's employees. Upon arriving the police were told that the fight had dispersed and they confirmed this through their own observations. The police left. Within minutes the intoxicated group returned and one member entered Shakey's and fatally shot Alvarez in the chest.

Based on these facts, Alvarez's heirs brought an action based on premises liability and negligence. They contended that Shakey's breached an assumed duty to act reasonably under the circumstances by properly informing the police of the risks of violence the restaurant knew existed at the Shakey's that evening.

After plaintiffs presented their case-in-chief, defendants moved for nonsuit arguing that plaintiffs had failed to establish the requisite degree of foreseeability to establish the existence or scope of a duty owed by Shakey's to prevent the murder. The trial court granted nonsuit and plaintiffs appealed.

After reviewing all of the facts, the Court of Appeal concluded that the trial court properly granted nonsuit on the basis that the restaurant had no duty to do anything in addition to calling the police because the subsequent violence was unforeseeable.

The judgment of the trial court was affirmed.