Phillips v. Perils Of Pauline Food Production, Inc.

35 Cal.App.4th 1510 (1995)

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Nature of the Case

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Facts

D operates a restaurant in San Diego's Mission Beach area. At 1:45 P was assaulted and beaten by three men while retrieving his car from the parking lot for D. D encouraged late-night dining and drinking through advertising. It served meals as late as 3 a.m. and alcoholic beverages as late as 2 a.m. The only security measures it had taken during the years before the assault were to have the parking lot paved, bumper guards installed and one light in the rear of the parking lot installed in addition to a street light along the peripheral of the street. The restaurant and parking lot were surrounded by a mixed residential business area in which all the surrounding businesses were usually closed by midnight. P was a member of the San Diego Chargers football team. D solicited him to patronize the restaurant because it believed it was good for business to have professional football players as patrons. The assault began as an exchange of words between the assailants in a car and P's female acquaintance while they were walking to the parking lot. The assailants drove their car into the parking lot, and one of them got out and continued the verbal exchange. The assailants backed their car out of the lot, then reentered the lot, got out of their car and again exchanged words. The assault then began and extended over several minutes. P sustained numerous blows by both fists and feet and suffered substantial injuries. P did not hit the assailants. The female companion was also struck to the ground. They then kicked and punched in all the windows and door panels on P's rental car. A neighbor intervened, was hit and chased by one of the assailants. The neighbor got a bat and returned some 30 seconds later to break up the assault, but the assailants had fled. P required two artificial plates of titanium and silicone to be placed permanently in his head. P sued D and the three assailants. Judgment was entered against two of the assailants. The jury returned a special verdict assessing 10 percent of the liability for the incident upon D and 30 percent on each of the assailants. The jury awarded P $250,000 for past pain and suffering; $250,000 for future pain and suffering; $61,310 for past medicals; $61,000 for future medicals; and $170,000 for past loss of earnings. Punitive damages were assessed at $32,000 against the third assailant. Judgment was entered against D in the amount of $342,310, and against the third assailant in the amount of $834,310 plus attorney fees of $49,459. Costs of $6,607.84 were to be jointly and severally shared by all defendants. D's motions for judgment notwithstanding the verdict and for new trial were denied. At trial, it was conceded by D that it was in a high crime area. Before P's assault, D provided no additional nighttime security for patrons using the parking lot, such as a valet parking attendant, a parking attendant, closed-circuit camera or other means to communicate between the parking lot and the restaurant. There had never been a reported assault in the parking lot itself before the P's assault, but there had been several assaults and batteries and crimes against the person in the immediate vicinity and several dozen crimes against property. A married couple who lived next door to the parking lot had heard hostile disturbances emanating from there on a regular basis, had complained to D's management about after midnight hostile disturbances on at least four separate occasions only to encounter an uncooperative attitude from management who did not respond to their complaints. Another local establishment employed a parking attendant at night. The parking lot was within a one to three-minute walk from the restaurant. D appealed.