Facts

Plaintiff Rafiola Binger and her two adult children, were in Colima's Fade Shop in Manchester Mall on March 14, 2013, getting her son a haircut. A dispute arose when the barber's previous girlfriend, came in to speak with him about their common child. The barber, Ronnie Moore, then went outside and two men got into a prolonged fistfight with Moore. After the fight, one of the assailants returned and began firing a weapon into Colima's, striking plaintiff.

Manchester Mall is owned and operated by defendant Omninet Properties Manchester LLC and their affiliates. The Mall security on the day of the incident included two security guards who were employed by Omninet. The mall's security included a surveillance system, which became inoperable the day before the shooting. At least one security camera was pointed towards the All American Sports Fan store and Colima's.

Plaintiff sued Omninet Capital LLC, Omninet Properties Manchester Center LLC, and U.S. Properties Group LLC.

PLAINTIFF'S CONTENTIONS:
About 15 to 30 minutes before the shooting a security guard was walking by All American Sports Fan and saw the two assailants in the store. He thought they looked suspicious and stood outside the store and watched them and then moved on. The security guard testified that had the surveillance system worked he would have followed the two assailants on the system.

Two bystanders said they heard threats by the assailant who later came back shooting. At the time of the fight, the security guard was outside taking a break when he received a call that there was a fight. He and another security guard went to Colima's but the fight had already ended and the assailants had fled. The guards then interviewed the barber and then left to find the assailants. They next heard shots being fired and they saw one of the assailants firing into Colima's.

There were two Fresno Police officers parked outside of the Sears' location and they testified they could have been to the area of the fight within one minute had 911 been called. There was considerable testimony that Manchester Mall is within a high crime area.

Plaintiffs contended that defendants owed plaintiffs as patrons a duty of care to protect them from assailants' criminal acts. Plaintiffs also contended that defendants breached their duty to protect the plaintiffs by failing to monitor the suspicious assailants after the security guard first noticed them and by failing to intervene in the verbal dispute and the physical assault and by failing to call 911 once the assault began. Plaintiffs further contended that the breach constitutes a substantial factor in causing plaintiff's injuries.

DEFENDANTS' CONTENTIONS:
Defendants contended that they owed no duty of care because the criminal act was not foreseeable and that causation could not be proved. A security guard claimed he telephoned 911.

Damages

Past Paid Medical Expenses by Medi-Cal/Medicare are $23,253. Plaintiff's life care plan had a present value of $6,904,081 with 24-hour CNA care and defendants' life care plan had a present value of approximately $1.2 million with 12 hours of attendant care provided by an in-home health aid 12 hours per day at $10 or in other words an untrained aid.

Injuries

Binger, now 49, suffered a gunshot wound to the left flank and bullet fragments in the spinal canal at L4-L5, which resulted in a fusion with pedicel screws along with repairs of veins. She has been left with paraplegia, neuropathic bowel and bladder, neuropathic pain, pressure sores, and bilateral shoulder pain when performing wheelchair transfers, propulsion and pressure reliefs. She claimed she is depressed. Binger lives in a rental home in Central Fresno that is not handicap accessible. She is cared for by her 68-year-old mother and several of her nine children. She cannot take a shower or bathe and is sponged down by family. She cannot fit through the door into the bathroom. She is incontinent permanently of bowel and bladder and wears diapers.

Result

The case settled for $3.5 million, $1 million will be placed into an annuity for Binger, and the rest of her monies will be managed by a certified financial planning firm. The court found the heightened standard of foreseeability was not applicable. The court further found that had defendants' security officers taken the measures that it was reasonable to conclude that they could have prevented the assailant from getting into the fight in the first place, or if the fight did occur, they could have called the police, whose presence would have presumable deterred the assailant from getting his gun.

Other Information

The court denied defendants' motion for summary judgment, finding defendants failed to establish that the shooting was unforeseeable under the circumstances and that plaintiffs were not seeking to impose on the defendants a highly burdensome duty because they already had a permanent staff of security guards along with a security surveillance system. The court found plaintiffs were only alleging that defendants security officers' acted negligently in failing to intervene to prevent the fight and in failing to call 911 to report the fight before it escalated into a shooting. The assailant was later arrested and is currently in prison. INSURER: Liberty Mutual Insurance Company. FILING DATE: Nov. 1, 2013.