By Barry A. Bradley, Esq.
In July, the Court of Appeal in Janice H. vs. 696 North Robertson, LLC affirmed a $5.43 million jury verdict in favor of plaintiff Janice H., who was sexually assaulted inside the Here Lounge night club in West Hollywood. She had been drinking heavily with her friend at a Pasadena bar earlier in the evening, became separated, and went alone to the Here Lounge hoping to meet up with her friend later that night.
The Here Lounge was a very popular West Hollywood dance club and bar. It hired promoters who used social media to encourage attendance with sexy themes. It had a sexually charged atmosphere and typically packed in over 500 guests.
On the night Janice H. was raped, the theme at the club was “Size Matters,” and they allowed their bartenders to wear only underwear. Drug use was prevalent and security was employed to prevent it.
The bar had a common restroom area accessible to both men and women. On busy nights, a long line of patrons waited to use the restrooms. The area included four adjacent lockable unisex restroom stalls, an open area behind the stalls with a urinal trough, and two larger Americans with Disabilities Act (ADA) compliant stalls off to one side. These had lockable, full-length doors, and were treated by the patrons as unisex and used them interchangeably.
Sexual conduct, as well as drug use, were common problems inside the club and especially in the ADA stalls. The club employed 12 Security Officers who were on duty, with 8 to 10 who roamed inside. The policy was that one or two security officers were supposed to be posted by the restroom area, but when the club was down to a small number of patrons, the posted restroom guards had discretion to leave their posts and roam the club while periodically checking on the restroom area.
The security officers at the restrooms were there to ensure only one person at a time entered the stalls to prevent sexual conduct and drug use. They were aware that patrons were often intoxicated and neglected to lock the bathroom stall doors.
Around midnight, plaintiff went into an ADA stall which had a full length door. She left the door unlocked, which was customary for her.
The assailant was a bus boy who was working for Here Lounge at the time of the rape. The camera video of the outer restroom area showed that no security officer was posted in the area at the time. The assailant entered the private unlocked stall shortly after plaintiff entered and forced plaintiff to orally copulate him, after which he vaginally penetrated her.
The entire encounter lasted about five minutes. She left the nightclub shaken, bleeding, and immediately reported the incident to the police. The plaintiff lost her virginity as a result.
The Lawsuit – Assuming a Duty:
Here Lounge and its security staff were sued for Negligence. The restaurant and security argued that the rape was not foreseeable, because there were no prior similar incidents of violent sexual assaults. In other words, they were not on notice. Therefore, Here Lounge argued they had no duty to post guards by the restrooms all the time – security could leave at their discretion.
The Court of Appeal disagreed. In affirming the jury verdict, the court held: “This evidence taken together made the risk of harm to intoxicated and vulnerable patrons reasonably foreseeable, regardless of whether the club was on notice of a prior similar incident. . .”
Here Lounge also argued that they did not have a duty to station guards at the restrooms all the time. When the guards felt it appropriate, they could leave and just check the area periodically.
The Court rejected this “lack of duty” argument as well: “Moreover, having elected to employ multiple security guards and station them in the restroom area, Here Lounge assumed a duty of reasonable care with regard to the security guards’ deployment. . .”
Regarding assuming a duty, the Court held: “A defendant who enters upon an affirmative course of conduct affecting the interests of another is regarded as assuming a duty to act, and will be liable for negligent acts or omissions, because one who undertakes to do an act must do it with care…”
The Court found that by Here Lounge simply taking away the guards’ discretion to leave the area, it is more likely than not that the presence of the guard would have prevented the bus boy assailant from entering the stall, eliminating the opportunity to rape the plaintiff.
The Court reiterated that the determination of whether a duty exists is an “elastic” one, which depends upon the circumstances. Here Lounge could have prevented this sexual assault by simply keeping their guards in place. The burden on the club would have been minimal, given the sexually charged atmosphere.
LESSONS LEARNED: The Janice H. decision makes it clear that once a premises owner or its security staff assume to undertake a responsibility, they then have a duty to perform it in a non-negligent manner. Even if a contract or written “post orders” for security did not require a particular service, by undertaking that practice (for example providing escorts to parking lots), it creates a duty, a breach of which can be deemed to be negligence.
Additionally, the greater the likelihood of a bad event occurring based upon the totality of the circumstances known to the premises owner or security company, the greater the chance there will be a finding that the event was foreseeable, and thus preventable.
If it is foreseeable, it is preventable! Regular risk assessments and security audits that are properly documented will assist your attorneys in defending third party criminal act lawsuits, such as this one.