No Duty of Care to Prevent Violence from a Third Party

In Melton v. Boustred, the California Court of Appeals, Sixth District, sustained a demurrer, without leave to amend, on negligence claims arising from a party hosted by defendant at his home where plaintiffs were attacked by unidentified individuals.

Plaintiff argued that “common sense” suggested the possibility of attack on party-goers where:

• MySpace was used to promote an “unrestricted and widely broadcast party invitation” to the general public,
• the party was known to include music and alcohol consumption, dancing, live music, and DJ services;
• no attempt was made to control admission or provide security or protection for attendees.

Plaintiffs asserted that these conditions made it “highly likely and substantially certain” to attract gang members–and therefore resulting violence.  The Court of Appeals rejected plaintiff’s proposed standard of duty of “common sense,” ruling that:

Common sense is not the standard for determining duty. [Citation omitted.] Nor is hindsight. [Citation omitted.] Instead, the “analysis must focus on the foreseeability of harm occurring, not its probability, a more stringent standard.”

As provided by California statute: “Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person.”

The existence of a duty is a question of law for the court.

When analyzing duty in the context of third party acts, courts distinguish between “misfeasance” and “nonfeasance.” Misfeasance exists when the defendant is responsible for making the plaintiff’s position worse, i.e., defendant has created a risk. Conversely, nonfeasance is found when the defendant has failed to aid plaintiff through beneficial intervention.

Nonfeasance generally does not give rise to a legal duty. The underlying premise is that “a person should not be liable in failing to act as a “good Samaritan.‟  Thus, absent misfeasance, “as a general matter, there is no duty to act to protect others from the conduct of third parties.”

In the instant case, defendant merely invited people – including unknown individuals – to attend a party at his house. The Court explained: “to impose ordinary negligence liability on [a property owner who] has done nothing more than allow [his home] to be used for [a] party . . . would expand the concept of duty far beyond any current models.”

In determining whether a heightened standard of foreseeability has been established, the defendant’s knowledge is critical. “The emphasis must be on the specific, rather than more general, facts of which a defendant was or should have been aware.” In cases involving liability for third party criminal conduct, “the requisite degree of foreseeability rarely, if ever, can be proven in the absence of prior similar incidents.”

Prevailing counsel in this case was Andrew M. Lauderdale.

The Sixth District appellate panel included Justice Richard J. McAdams, Justice Patricia Bamattre-Manoukian and Justice Nathan D. Mihara.