The opinion of the court was delivered by: BERNARD ZIMMERMAN, Magistrate Judge
ORDER DENYING DEFENDANT ABC SECURITY SERVICE, INC.'s MOTION FOR
Plaintiffs, the estate and family of Dr. Erlinda Ursua, filed
this action pursuant to 42 U.S.C. § 1983 against defendant
Alameda County Medical Center (the "Medical Center"), alleging a
violation of Dr. Erlinda Ursua's Fourteenth Amendment rights.
They also sued Alameda County and ABC Security Service, Inc.
("ABC") for negligence.*fn1
Now before me is ABC's motion
for summary judgment. For a full description of the material facts, see the Order Granting
Defendant Alameda County Medical Center's Motion for Summary
ABC is moving for summary judgment on these grounds: (1) It did
not owe a duty to Dr. Ursua, (2) It did not breach such duty
because the Medical Center directed ABC to discontinue the roving
guard position, (3) Its conduct did not cause plaintiff's death.
ABC contends that it did not owe Dr. Ursua any duty because no
special relationship existed between ABC and Dr. Ursua such that
ABC may be held liable for Dr. Ursua's injuries. Under California
law, a special relationship may be contractually established.
See Seo v. All-Makes Overhead Doors, 97 Cal. App. 4th 1193,
1203 (2002); see also Rest. 2d Torts § 324A. A security
company may be held liable where its failure to act reasonably
under the circumstances causes injury to those it has contracted
to protect. See Marois v. Royal Investigation and Patrol,
Inc., 162 Cal. App. 3d 193, 199-200 (1984) ("By contracting with
the business to provide security services, the security guard
creates a special relationship between himself and the business's
customers"); Trujillo V.G.A. Enterprises,
36 Cal. App. 4th 1105, 1008 (1995); Rosh v. Cave Imaging Systems, Inc.,
26 Cal. App. 4th 1225 (1994) (affirming a verdict against a security
guard company for an employee's injury by a terminated
worker).*fn2 Plaintiffs have established that a special relationship existed
between ABC and Ursua. ABC does not dispute that it entered into
a contract with Alameda County, the Medical Center and the John
George Psychiatric Pavilion (the "JGPP") to provide security
services. Pursuant to the contract, ABC and its agents and
employees established a special relationship with the patients
and staff at the JGPP and assumed a duty to protect the patients
and staff. Dr. Ursua was employed by the Medical Center and
worked at the JGPP. California courts have held that in cases
where businesses have contracted with a security company, guards
have a duty to employees, third parties and customers.
Trujillo, 36 Cal. App. 4th at 1108; Marois,
162 Cal. App. 3d at 200. If a security company does not have a duty to protect
employees of the business that sought, hired and contracted for
security, it is hard to understand what duty it has.
The record discloses that ABC's duties included serving and
protecting employees such as Dr. Ursua. In response to staff
complaints about the increasing number of assaults by patients
(Seaton Decl., Exh. 1, Wilson Deposition, Exh. 1), the Medical
Center "increased the number of security personnel from 2 to 3
officers on all three shifts" (Seaton Decl., Exh. 8, Ferguson
Deposition, Exh. 7 ("Ferguson Dep.")). ABC's Standing Post Orders
required security guards to comply with requests for assistance
by staff members (Seaton Decl., Exh. 18, Thrower Deposition, Exh. 2 ("Thrower Dep.")), and the guards
themselves understood their duties included responding to calls
from staff members such as nurses (Seaton Decl., Exh. 19, Moreno
Deposition at 38 ("Moreno Dep.")). I find that ABC owed a duty to
During the hearing on ABC's motion for summary judgment on
October 26, 2005, ABC argued even if it owed a duty to Dr. Ursua,
it did not breach that duty by failing to have a roving security
guard on the day of Dr. Ursua's death because "[t]he rover was
not that high a priority. The lobby entrance and the red line
were critical . . ." (Thrower Dep. at 39). It is unclear from the
record whether the Medical Center mandated the change in guard
duty to contravene the Standing Post Order or ABC took it upon
itself to rearrange its guards. Mary Ferguson, the Medical
Center's chief quality officer, understood that two of the
security guards would be placed in the lobby and the third was to
do continuous rounds of the inpatients' units (Ferguson Dep. at
29). She testified that "[she] had no direct authority to ensure
what [was] recommended took place. [ABC's] job was to implement
and to do their job as they saw fit" (Ferguson Dep. at 40).
Viewing this testimony favorably to plaintiffs, a jury could find
that ABC contravened its Standing Post Orders and eliminated the
roving security guard position at its discretion, and thus, ABC
breached a duty to Dr. Ursua.
ABC next argues that it is entitled to summary judgment because
plaintiffs cannot establish that its conduct caused Dr. Ursua's death.*fn3 ABC contends that it is sheer
speculation whether a roving security guard making rounds through
the halls and other areas of the JGPP would have prevented or
stopped Pavon's assault in time for Dr. Ursua to survive.
Causation is a question of fact for the jury unless the proof is
insufficient to raise a reasonable inference that the act
complained of was the proximate cause of the injury. Lies v.
Farrell Lines, Inc., 641 F. 2d 765, 770 (9th Cir. 1981) (citing
Leaf v. United States, 588 F. 2d 733, 736 (9th Cir. 1978));
Vickers v. United States, 228 F. 3d 944, 953-54 (9th Cir. 2000)
("[C]ausation-related issues involve questions of fact, unless
`reasonable [persons] will not dispute the absence of
causality.'"); Rosh, 26 Cal. App. 4th at 1235 ("The question of
causation is one of fact; it becomes a question of law only where
reasonable people do not dispute the absence of causation.");
see also Rest. 2d Torts § 434(12). ABC bears the burden of
establishing that there is no room for a reasonable difference of
opinion on the issue of causation. Rosh,
26 Cal. App. 4th at 1235.
A reasonable jury could find that ABC caused Dr. Ursua's death
by failing to provide a roving security guard as required by its Standing Post Orders. The record abounds with
examples of ABC's substandard service. Although ABC's Standing
Post Orders called for its guards to make rounds and check areas
such as the Acute Hospital, parking and administration areas
hourly, Mr. Thrower, ABC's general manager testified that
"[d]uring the day shift, there were no hourly rounds" (Thrower
Dep. at 39). No one at the security company seems to have been
aware of the hallway of the room in which Dr. Ursua died. Mr.
Thrower testified that the first time he walked the hallway was
when the hospital staff showed him after Dr. Ursua's death
(Thrower Dep. at 28-29). Miscommunication was a recurring
problem. The general manager, who was the liaison between ABC and
the Medical Center, testified he was not aware OSHA had come in
because of an increase in assaults (Thrower Dep. at 12). Guards
did not understand the scope of their duties, and in their
testimony, they contradict each other and the Standing Post
A reasonable jury could find that had ABC complied with its own
orders or addressed some of these problems, it might have
prevented Pavon's assault or intervened in time for Dr. Ursua to
survive. A reasonable jury could conclude that the presence of a
roving security guard might have dissuaded Pavon, or a roving
guard might have heard Dr. Ursua struggling or noticed Pavon's
unescorted presence in the hallway outside Room B18. A jury is in
the best position to weigh these considerations and
That ABC failed to provide the level of security which it had
agreed to provide distinguishes this case from the cases on which ABC relies. The jury is not being asked to speculate
whether additional guards or further layers of security might
have prevented Dr. Ursua's death, or whether the unidentified
assailant was not authorized to be on the premises. See e.g.
Saelzler v. Advanced Group 400, 25 Cal. 4th 763 (2001), Leslie
G.B. Perry & Associates, 43 Cal. App. 4th 472 (1996). See also
Nola M.V. University of Southern California,
16 Cal. App. 4th 421, 424 (1993).
Because a reasonable jury could conclude that ABC caused Dr.
Ursua's death, ABC has failed to satisfy its burden on the
question of causation. Whether plaintiffs succeed in proving
their case against ABC at trial remains to be seen. IT IS
ORDERED that ABC's motion for summary judgment is DENIED.
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