This week’s question comes from Jeff in the Marina, who asks:
Q: “I was at a bar with friends. We got tipsy, maybe a little more, and the bouncer asked my friend to leave. He left, then snuck back in. The bouncer found him and grabbed him by the hair and started pulling him outside. My friend screamed, and the bouncer threw him outside on the ground, about 10 feet from the front door. I stood between the bouncer and my friend and said, “Stop. We are leaving.” My friend got up and told the bouncer to go f— himself, and the bouncer took a swing at him, missed and hit me in the face, breaking my nose. I did nothing but tried to calm things down and I got my nose broken. I called the police, but they said they wouldn’t make an arrest because the bouncer said we both attacked him. I know some other witnesses who left before the police came. I heard that this has happened before with this bouncer. He still works there. What can I do?”
A: Jeff, the first thing I would do is write a letter to the bar owners, tell them what happened and have them save any videotape they may have from their security cameras. Video security systems usually overwrite data, sometimes as soon as 72 hours. If they have the video and don’t save it after getting your letter then, should the matter go to trial, a judge can give the jury an instruction that they should assume the evidence would have been harmful to them and that’s why they destroyed it.
It has been the law in California for more than 200 years that “everyone is responsible … for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property …”
A business proprietor, while not an insurer of his or her patron’s safety, is required to exercise reasonable care for their safety and is liable for injuries resulting from a breach of this duty. It has been held that bar owners have a special relationship with their customers, imposing a duty upon them to take reasonable measures to protect them from imminent or ongoing criminal conduct or injury from fellow customers or employees. One case in which liability was found involved a bar where the patrons were being threatened by a group of drunkards and the security guard told the patrons that they should leave but didn’t escort them to their vehicle. They were attacked and beaten in the parking lot. The California Supreme Court held that a proprietor, who has reason to believe from observation or experience that the conduct of another endangers a customer, has a duty to take reasonable steps to protect them from harm.
In an addition to cases recognizing the duty of a bar owner to protect patrons from others, a bar owner has an obligation to protect patrons from their own security guards.
A security guard is required to use the least amount of force possible to do his or her job. They cannot use physical violence unless they, themselves, are in threat of bodily harm and, then, only that necessary to protect themselves. From what you have described here, the bouncer used physical violence because he had been insulted by your friend. You had done nothing to harm or threaten the bouncer and, therefore, his violence toward anyone was unwarranted. In short, he had no legal justification and has no valid self-defense argument. You can sue him for civil assault and battery.
As far as the bar owner is concerned, a bouncer must be properly trained by his employer as to their responsibilities and limitations.
For bars located in The City, without parking lots, the “zone of authority” of the bouncer ends at the front door. He is not a policeman and cannot act as a vigilante and shouldn’t have been engaging with customers on the sidewalk. It appears he may have been improperly trained and/or supervised.
Likewise, a bar owner who has knowledge that his or her security guard engages in excessive force has an obligation to take affirmative steps to protect his customers, including terminating the bouncer. Here, you have evidence that the bar owner knew or should have known the bouncer presented an unreasonable risk of harm and failed to take steps to prevent him from hurting another patron. If this is true, the bar owner may have liability not only for your medical bills, lost wages, pain and emotional distress, there may also be grounds for punitive damages for retaining an unfit employee.
I wish I could say that yours is the first such case I have heard of. Unfortunately, we have handled many such cases. It seems that the job may appeal to a particular kind of person. Indeed, we find many of these offenders have criminal records and that their employers didn’t properly conduct a background check thereby making them liable for negligent hiring.
Jeff, I suggest you round up those other witnesses, tell the owner to secure the video, make a photographic diary of your injuries and find a good trial lawyer to advise you of your rights.