Facts

On June 23, 2003 at approximately 11:30 p.m., Plaintiff Edward James Marshall was sleeping in his car in a remote parking lot of defendant Playa L&M Enterprises hotel and retail premises when two or three assailants attempted to rob the plaintiff. 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 defendant claimed that the plaintiff had been routinely sleeping in his car at this location for two years without incident.

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 December 2002, a new security company took over and 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.

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.

The owners of the hotel and retail properties 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 plaintiffÆs 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 security expert testified 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.

The defense argued that the plaintiff cannot rely on the very same security that he was intentionally evading. The defense further argued that the plaintiff could not establish the required element of causation, and also that the plaintiff did not meet his burden in establishing that the defendants owed a duty to provide security on his behalf.

Result

Summary Judgment Granted for the Defense.

Other Information

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