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Legal Report December 2005


PREMISES LIABILITY. A California appeals court has ruled that the owners of a bar had a duty to intervene in an attack on a patron. In the case, the court ruled that bouncers at a bar who anticipated an assault did not attempt to keep the parties separated, resulting in the injury of a patron and liability for the bar.

In the summer of 1998, the Trax Bar and Grill in Turlock, California, employed bouncers to work on the weekend. The bouncers were stationed outside of the bar entrance and were tasked with patrolling the parking lot to prevent people from congregating or consuming alcoholic beverages there. The bouncers also checked IDs and counted the number of patrons who entered to ensure that the crowd did not exceed a certain number. Restaurant managers warned the bouncers not to intercede in altercations. Instead, they were instructed to call 911.

One Saturday in November of 1998, Michael Delgado and his wife Louise arrived at Trax around 10:00 p.m. Delgado and his wife sat at the bar and each drank a beer. During this time, Delgado noticed that a stranger was staring at him. This stranger, Jacob Joseph, along with four friends, sat at a table and continued to stare at Delgado. However, Joseph said nothing and made no attempt to physically confront Delgado.

This behavior continued for over an hour. Delgado became increasingly uncomfortable. One of the bouncers had noticed the interaction and was concerned that a fight was about to break out.

The bouncer approached Delgado and told him that he and his wife should probably leave. (The bouncer later explained his decision, noting that he felt it simpler to ask two people to leave rather than approaching four people with the same request.) Delgado and his wife agreed to leave.

Approaching their car, which was approximately 40 feet from the bar, Delgado noticed that there was no bouncer posted outside. However, around 20 men were standing in a group in the parking lot. Joseph and his companions followed Delgado and his wife outside. Joseph signaled to the group and the men separated Delgado from his wife. They then attacked Delgado.

During the attack, one of the bouncers called 911 and requested police intervention. The police arrived about 20 minutes later and arrested Joseph, who was later convicted of felony assault. Delgado was severely injured, suffering a fractured skull. His injuries resulted in personality changes and chronic headaches.

Delgado filed a lawsuit against Trax under the theory of premises liability, claiming that the business was liable because it could have foreseen the attack, yet failed to protect him from Joseph. A jury found in favor of Delgado and awarded him $81,400 in damages to compensate him for his medical expenses. (The jury award was for the actual medical costs. It did not award any money for pain and suffering.)

Trax appealed the decision on the grounds that there was no evidence of prior similar criminal acts on its premises, so it could not have foreseen the attack on Delgado. Because the attack could not be foreseen, argued Trax, it had no duty to protect Delgado.

The Stanislaus County Superior Court overturned the jury verdict, finding that Trax had no duty to protect Delgado. According to the court, a prior attack of the same “particular criminal conduct” would be required for Trax to be liable.

In other words, the court held that the only way Trax could have anticipated Delgado’s attack would be if a prior attack had occurred under the same circumstances—intimidation of a patron by four men followed by an attack by 20 other men. Though there was evidence of prior fights in the bar’s parking lot, the court concluded that Trax could not be held liable for Delgado’s injuries.

Delgado appealed the ruling. The Supreme Court of California disagreed with the lower court and overturned the decision. The court found that the attack was foreseeable based on prior similar criminal incidents in the parking lot and that evidence of an identical crime was unnecessary.

The court ruled that Trax had noticed that an assault was pending, evidenced by the fact that one of the bouncers took preliminary action to prevent it by asking Delgado to leave. Because of this, Trax had an obligation to take reasonable steps to avert the danger.

For example, the court noted that the bouncer could have made sure that a colleague was stationed outside the door of the bar and walked the Delgados to their car. The court noted in its written opinion that the bar’s duty was to attempt to prevent the assault by separating Joseph and his group from Delgado.

The court was careful to state that it did not “suggest that the defendant had a duty to guarantee that separation, or to prevent any resulting attack and injury to the plaintiff,” but the bar did have a duty to try. (Delgado v. Trax Bar and Grill, Supreme Court of California, No. S117287, 2005)


TRANSIT SECURITY. Asked to give their opinions about mass transit security, witnesses from the Department of Homeland Security (DHS), consultants, and transit operators for the United States and the United Kingdom gathered to testify before the Senate Homeland Security and Governmental Affairs Committee.

Sen. Susan M. Collins (R-ME), committee chairman, told those assembled that the nation’s attention should be shifted from aviation security to the safety of other transportation systems. “While it is understandable that, after the 9-11 attacks, air security would command our immediate focus, I believe it is time to reassess priorities and evaluate our preparedness across all modes of public transportation,” she said.

Representing the DHS and the Transportation Security Administration, Assistant Secretary Kip Hawley discussed the steps the government has taken to protect mass transit systems. Hawley noted that the DHS works closely with private sector rail companies, conducts risk assessments and technology evaluations for rail systems, and has given out $255 million to state and local transit authorities.

Hawley also pointed out the difficulty of protecting systems that are generally open to the public, involve numerous carriers, and are overseen by a mix of state and local governments or private companies. The sheer size of the systems is also problematic. “Many passenger rail systems are vast in terms of infrastructure and ridership…. Each weekday an average of 4.5 million passengers ride the New York City subway, compared to approximately 1.8 million domestic aviation passengers per day, nationwide,” said Hawley.

According to Polly Hanson, chief of the Metro Transit Police Department for the Washington Metropolitan Area Transit Authority, federal grants have helped the Washington D.C. Metro system make security upgrades. Using a $49 million grant awarded right after 9-11, Hanson says that the Metro installed chemical sensors, intrusion detection, digital CCTV systems on buses, bomb-containment trash cans, and additional equipment for K-9 teams and the Metro command center.

These measures, along with a public awareness campaign and an employee training program, have significantly increased Metro security, according to Hanson. However, funds have dropped off sharply in recent years, making maintenance of existing projects and the installation of new ones difficult. In 2003, Metro identified $150 million worth of high-priority outstanding security needs, but in the three years after 9-11, the system received only $15 million, says Hanson.

FIRST RESPONDERS. Two Senate bills have been introduced to address communication issues that arose in the wake of Hurricane Katrina.

One bill (S. 1554), introduced by Sen. Susan Collins (R-ME), would establish a grant program to improve overall communications equipment for first responders. Collins, who is chairman of the Senate Homeland Security and Government Affairs Committee, said that “This bill takes an important step toward improving emergency communications nationwide so no community experiences the communications failure we saw in parts of the Gulf Coast in the wake of Hurricane Katrina.”

The bill has one cosponsor—ranking minority member on the committee Sen. Joseph Lieberman (D-CT)—and has been referred to the Senate Homeland Security and Governmental Affairs Committee.

Another bill (S. 1762), introduced by Sen. Barbara Boxer (D-CA), would also establish a grant program. However, it would be designed to establish an interoperable communications system for first responders.

S. 1762 has two cosponsors and has been referred to the Senate Homeland Security and Governmental Affairs Committee.

OSHA. A bill (H.R. 3165) introduced by Rep. Al Green (D-TX) would hold companies criminally liable for the deaths of contract employees that result from willful violations of safety standards set out by the Occupational Safety and Health Administration. H.R. 3165 has 12 cosponsors and has been referred to the House Education and the Workforce Committee.

BORDER SECURITY. The Department of Homeland Security appropriations bill, signed into law (P.L. 109 90) by President Bush in October, contains $940 million for border security initiatives, including 1,500 new border patrol agents and expanded detention capacity. Secretary of Homeland Security Michael Chertoff discussed the administration’s border security policies and what the funds will be used for at a recent hearing on immigration reform.

Chertoff noted that funding for border control measures has increased by 58 percent ($2.7 million) each year since 2001. New money will be used to shore up the southwest border of the United States, which Chertoff called “the pathway for two-thirds of the illegal aliens currently in our country.”

In addition, the expanded detention capacity will help to end the government’s “catch and release” program in which those attempting to illegally cross the border are apprehended, told to appear at a hearing, and then released because there is no detention facility to house them, Chertoff told Congress.

Chertoff added that the department is streamlining the detention process so that those caught can have their hearing more expeditiously. He also discussed the new emphasis on gang-member deportations. “We have targeted violent criminal street gangs nationwide for immigration enforcement, particularly the Mara Salvatrucha organization,” he said. “The phenomenal success of this effort since its launch in March 2005 led to its expansion to include all criminal street gangs,” Chertoff explained.

Chertoff acknowledged the need to crack down on companies that hire illegal immigrants. He noted that the agency already has some efforts underway through Worksite Enforcement Units. In addition, he says, “we must also give employers the necessary tools to verify the legal status of their employees. The current verification system is insufficient to detect fraud, particularly document fraud, and we must resolve this.”

HAZARDOUS MATERIALS. A bill (S. 1256) introduced by Sen. Joseph Biden (DDE) would require the Department of Homeland Security to issue regulations for the rail shipment and storage of extremely hazardous materials by railroads. These regulations would include requirements relating to high-threat areas and procedures for coordinating federal, state, and local officials to respond to terrorist attacks, sabotage, or accidents that release hazardous materials.

S. 1256 has no cosponsors and has been referred to the Senate Commerce, Science, and Transportation Committee.



CYBER PREDATORS. A bill (S.B. 62) recently signed into law in Georgia has created the new crime of “initiation of deceptive commercial e-mail.” Designed to punish those who lure children via chat rooms and instant messaging, the crime is a misdemeanor and is punishable by a fine of up to $1,000 and 12 months in jail. On the second offense, however, the act is a felony and is punishable by a fine of up to $50,000 and five years in prison. The law also allows law enforcement officers to subpoena an Internet service provider to obtain the identity of a computer user under investigation for stalking children online.

This column should not be construed as legal or legislative advice.