The question of legal responsibility when violence erupts at events can prove complicated. In the recent case of Carmichael v. Café Sevilla, G063589 (January 7, 2025), the court examined the limits of negligence per se and the doctrine of ultra hazardous activities. After the event, Plaintiffs sued Café Sevilla of Riverside and its operators (hereinafter "Defendants"), arguing that the venue failed to provide adequate security and committed permit violations making it legally responsible for the repercussions of the shooting. Defendants moved for summary judgment and or summary adjudication (hereinafter "Motion") on the causes of action for negligence per se and ultrahazardous activity, which the Court ultimately granted and affirmed on appeal. The ruling in Defendants' favor in Carmichael highlights key limitations in holding businesses accountable for third-party violence, which is discussed further herein.
Factual Background of the Case
This case originated from multiple lawsuits filed against Defendants. The lawsuits were subsequently consolidated and the specific lawsuit in question here was filed by several plaintiffs who were present at the incident in question, including Raylon Carmichael (hereinafter "Plaintiffs").
The dispute stemmed from a shooting at a nightclub in Riverside, California, during a rap concert at Café Sevilla. Plaintiffs allege that the concert featured rival gang-affiliated performers who antagonized one another through song lyrics and gang signs, escalating tensions that led to gunfire inside and outside the venue. Plaintiffs who attended the concert, claimed that they suffered physical and psychological injuries.
Plaintiffs initially sued for premises liability, strict liability for ultra hazardous activity, negligence per se, and negligence. However, by the time this case reached the appellate level only the claims for negligence per se and ultrahazardous activity remained.
Plaintiffs argued that the defendants failed to implement adequate security measures, including employing insufficient security personnel, inadequate attendee screening, lack of security fencing and surveillance, failure to coordinate with law enforcement, and non-enforcement of a proper dress code. The crux of Plaintiffs' arguments was that these deficiencies violated the nightclub's conditional use permit issued by the City of Riverside.
In reaching its decision in favor of Defendants on the negligence per se claim, the trial court found that a conditional use permit does not constitute a "statute, ordinance, or regulation" as required for a negligence per se claim. With respect to the claim for ultra-hazardous activity, the trial court treated the Motion like a Motion for Judgment on the Pleadings, which it granted without leave to amend, holding that the concert and surrounding circumstances did not inherently constitute an ultra-hazardous activity with a high likelihood of great harm. Plaintiffs appealed the decision.
Negligence Per Se
A claim for negligence per se is governed by California Evidence Code §669.2. Negligence per se is the failure of a person to exercise due care and is presumed if:
- The defendant violated a statute, ordinance, or regulation of a public entity,
- The violation proximately caused death or injury to person or property,
- The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and
- The person suffering the death or injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted." §669, subd.(a); see also Gravelin v. Satterfield (2011) 200 Cal.App.4th 1209, 1218.
In Carmichael, the court concluded that plaintiffs failed to satisfy these elements. The initial question was whether a conditional use permit qualifies as a statute, ordinance, or regulation. Although the Plaintiffs argued that §669(a) should be interpreted broadly and has previously been applied to police department manuals and Administrative Code safety orders, Stafford v. United Farm Workers (1983) 33 Cal.3d 319, 324, Plaintiffs did not successfully persuade the court that this precedent should be extended to conditional use permits.
The court reasoned that even if the law should be extended to cover conditional use permits, Plaintiffs failed to establish that their injuries were "of the precise nature the permit was designed to prevent" as the statute clearly requires. The permit's stated purpose was to ensure that the nightclub did not become "detrimental to public health, welfare, or materially injurious to public safety, property or improvements in the vicinity or if the property was operated or maintained so as to constitute a public nuisance." The court interpreted this to mean that the permit was in place to prevent the nightclub from becoming a nuisance or disturbance to the public. The permit did not mention the protection of patrons of the nightclub or instill a specific duty on the establishment owner to protect them from violence. Therefore, the court found that the violence that ensued on the night in question was not the type of harm that the permit was meant to prevent or the parties it was designed to protect. Since protecting nightclub attendees was not within the scope of the permit's intended purpose, the negligence per se claim failed.
Ultrahazardous Activity
Ultrahazardous activity is defined as "activities that create such a serious risk of danger that it is justifiable to place liability for any resultant loss on the person(s) engaging the activity, regardless of lack of culpability." Hulsey v. Elsinore Parachute Center (1985) 168 Cal.App.3d 333, 345. The court considered the following factors in determining whether an activity is ultrahazardous:
- The existence of a high degree of risk of some harm to the person, land, or chattels of others.
- The likelihood that the harm that results from it will be great.
- Inability to eliminate the risk by the exercise of reasonable care.
- Extent to which the activity is not a matter of common usage.
- Inappropriateness of the activity to the place where it is carried on, and
- Extent to which its value to the community is outweighed by its dangerous attributes." Edward v. Post Transportation Co. (1991) 228 Cal.App.3d 980, 985.
Plaintiffs asserted that hosting a rap concert featuring artists known for violent lyrics and drawing rival gang members was inherently dangerous. Yet, this argument contradicted their own claims that the primary cause of harm was Defendants' inadequate security measures and failure to address known risks. Plaintiffs detailed specific security failures- such as lack of police coordination, inadequate crowd control, and failure to separate rival gang members- but these arguments implied that the violence could have been prevented with proper precautions. After a consideration of the facts and evidence, the court concluded the concert itself did not present a "great likelihood of harm."
The court also emphasized that gangster rap, despite its provocative and sometimes violent lyrics, is a form of creative expression and does not in and of itself present an inherently dangerous environment. The court concluded that merely hosting a rap concert did not rise to the level of an inherently dangerous activity. As a result, Plaintiffs' claim failed, and the ruling was affirmed in favor of Defendants.
Conclusion
The court ruled that a conditional use permit does not qualify as a statute, ordinance, or regulation necessary for a negligence per se claim. It also determined that hosting a concert, even one featuring a gang-affiliated performers, was not inherently dangerous to meet the threshold for ultra hazardous activity. In essence, Plaintiffs' own arguments focusing on security failures, undermined their claim that the event itself was unavoidably hazardous.
For business owners, this case underscores the importance of risk management when hosting high profile or potentially controversial events. While courts may be hesitant to categorize events as ultra hazardous, venue operators can still face liability if they fail to implement reasonable security measures. By prioritizing safety, businesses can better protect themselves from liability while maintaining a secure environment for patrons.