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Talasazan v. Northridge Arena Soccer League12/4/2002
arity of fights between players. It is important to note that this is not the typical case, where a plaintiff contends that no security measures were taken when some were called for, or that inadequate security measures were provided. The evidence shows that security guards were often provided and that their presence was adequate to stop fights before they got out of hand. The question posed by Talasazan is why the guards were not present the night he was injured. Respondents have never addressed that question and we are left to speculate why guards were present some nights and not others. Given the statistical frequency of fights and the absence of any such explanation by respondents, we believe it was highly foreseeable that fights could occur at any game, making the need for guards at every game just as foreseeable.
Accordingly, we conclude that "viewing the evidence in the light most favorable to plaintiffs, as we must" (Krongos v. Pacific Gas & Electric, supra, 7 Cal.App.4th 387, 394), plaintiff has established forseeability of harm sufficient to support a duty of care requiring the employment of security guards at League games. We stress however that we find the injury "foreseeable" only as it "pertains to a general duty of care," not that harm to this plaintiff was foreseeable as a matter of law. (Id., original italics.) Ultimately, the foreseeability of harm in this case is a factual matter for trial.
Respondents contend that even if the fights were sufficiently foreseeable, they were not on notice of the prior incidents. We believe there are triable issues of fact on this point. Respondents apparently contend that they lacked actual notice of any prior fights because their employees were ordered to make note of any violent acts on the premises and no such records existed. Actual notice is not required, however, because "a landowner's duty includes the duty to exercise reasonable care to discover that criminal acts are being or are likely to be committed on its land [citation], . . . ." (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 679-680 (Ann M.); see Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal.4th 814, 823-824 [citing Rest.2d Torts, ยง 344, for the proposition that possessor of land has duty to discover that third persons are committing harmful acts on his premises]; Nicole M. v. Sears, Roebuck & Co. (1999) 76 Cal.App.4th 1238, 1243-1244.) While the existence of a reporting system and the absence of any such records made a criminal assault unforeseeable in Ann M., supra, 6 Cal.4th at page 680, this holding was also based on the complete lack of prior similar incidents on the owner's premises. (Ibid.) Here, security guards had been hired to work at the arena and had actually intervened in several fights between players. This evidence casts doubt on respondents' assertions that they knew nothing about prior similar fights and, at a minimum, raises an inference that they should have known of those incidents.
Finally, respondents contend that even if the foreseeability component of the duty analysis is satisfied, public policy reasons related to the costs and burdens of providing security guards militate against imposing such a duty here. They rely primarily on Ochoa v. California State University (1999) 72 Cal.App.4th 1300 (Ochoa). The plaintiff in Ochoa was a college student who was injured during a fight that broke out in the middle of an intramural soccer game. That case hinged on whether the public university had a special relationship with its adult students, which imposed a duty to protect the students from the criminal acts of third persons. Specifically, the plaintiff complained that the university's referees negligently
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