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Jets Versus Sharks?

If a bar has its usual incidence of alcohol-fueled brawls, and hires a bouncer to assist in restoring order, can the bar owner be held liable if a gang-related assault occurs in the parking lot? In a case reflecting these facts, the assailant went to jail and the victim sued the bar, arguing that the existence of the bouncer meant that the bar assumed the duty to protect its patrons and, alternatively, that the bar had a duty once the victim's wife told a bar employee that she believed trouble was brewing. The bar argued that gang violence had never before occurred on the premises and therefore was not foreseeable.

Demonstrating the difficulty in accounting for gang violence in a foreseeability analysis, the same California Supreme Court that found no duty in Castaneda said yes in Delgado v. Trax Bar and Grill (113 P.3d 1159 (Cal. 2005)). The court concluded that the lack of prior similar incidents meant the bar had no duty to hire more security guards. But the court also held that the bar did have a duty to respond as events unfolded, specifically, the bar had a duty to attempt to prevent the assailant from following Delgado into the parking lot. This case seems to impose a duty to prevent a crime in process, without considering (as the dissent did) how quickly violence can escalate and that the bar did, in fact, promptly phone the police who arrived nearly instantaneously.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.