Morris

As observed in the companion case, Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224 [ 30 Cal.Rptr.3d 145 , 113 P.3d 1159 ] {Delgado), courts long have recognized that businesses such as restaurant proprietors have a “special relationship” with their patrons or invitees, and that this relationship imposes upon the proprietor a duty to take reasonable measures to protect such persons against foreseeable criminal attack {id., 36 Cal.4th at pp. 235-236). Specifically, as we stated in Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal.4th 814 [ 59 Cal.Rptr.2d 756 , 927 P.2d 1260 ] {Kentucky Fried Chicken), with respect to “ongoing” criminal conduct that occurs in the presence of a restaurant proprietor, there is a duty to warn or “take such appropriate action as is reasonable under the circumstances to protect patrons” and invitees. {Id., at p. 823, italics added.)

We granted review in this matter to consider the Court of Appeal’s determination that plaintiff, who was injured by third party criminals in the parking lot of defendant’s all-night restaurant while defendant’s employees watched from inside, stood in a special relationship with defendant, and…

I concur in the judgment based on the limited facts before us. Under the specific circumstances set forth, it could very well be the case that the employees may have been minimally burdened to call 911 in the face of the ongoing criminal conduct. 1 I, however, write separately because I do not believe our decision in Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal.4th 814 [ 59 Cal.Rptr.2d 756 , 927 P.2d 1260 ] (Kentucky Fried Chicken) compels this result.

In Kentucky Fried Chicken, we decided “whether a shopkeeper owes a duty to a patron to comply with an armed robber’s demand for money in order to avoid increasing the risk of harm to patrons.” (Kentucky Fried Chicken, supra, 14 Cal.4th at p. 817 .) And we held that “there is no duty to comply with a robber’s unlawful demand for the surrender of property. Simple refusal to obey does not breach any duty to third persons present on the premises.” (Id. at p. 829.) We stated that to hold otherwise and recognize a duty would be “inconsistent with the public policy reflected in article I, section 1 of the California Constitution and Civil Code section 50.” (Ibid.) Both article I, section 9 of the California…

As I pointed out in my dissenting opinion in Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 244, 250 [ 30 Cal.Rptr.3d 145 , 113 P.3d 1159 ] (dis. opn. of Kennard, J.), anyone reading this court’s recent decisions in Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666 [ 25 Cal.Rptr.2d 137 , 863 P.2d 207 ], and its progeny, would conclude that (1) the prior-similar-incident rule applies to premises liability claims against business owners for failing to take precautions against possible future criminal conduct of third parties when the conduct is a criminal assault by a third party, and that (2) as suggested in Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal.4th 814, 823-824 [ 59 Cal.Rptr.2d 756 , 927 P.2d 1260 ], the totality of circumstances rule applies when the criminal conduct is ongoing or imminent. This case, involving an ongoing criminal assault, falls within the totality-of-circumstances rule. (Kentucky Fried Chicken of Cal., Inc. v. Superior Court, supra, 14 Cal.4th at p. 823 .)

As observed in the companion case, Delgado v. Trax Bar & Grill (June 30, 2005, S117287) 36 Cal.4th 224 , 30 Cal. Rptr.3d 145 , 113 P.3d 1159 , 2005 WL 1529656 ( Delgado ), courts long have recognized that businesses such as restaurant proprietors have a "special relationship" with their patrons or invitees, and that this relationship imposes upon the proprietor a duty to take reasonable measures to protect such persons against foreseeable criminal attack ( id., 36 Cal.4th at pp. 235-236, 30 Cal.Rptr.3d 145 , 113 P.3d 1159 ). Specifically, as we stated in Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal.4th 814 , 59 Cal.Rptr.2d 756 , 927 P.2d 1260 ( Kentucky Fried Chicken ), with respect to "ongoing" criminal conduct that occurs in the presence of a restaurant proprietor, there is a duty to warn or "take such appropriate action as is reasonable under the circumstances to protect patrons" and invitees. ( Id., at p. 823, 59 Cal.Rptr.2d 756 , 927 P.2d 1260 , italics added.)

We granted review in this matter to consider the Court of Appeal's determination that plaintiff, who was injured by third party criminals in the parking lot of defendant's…