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November 9, 2005.


The opinion of the court was delivered by: BERNARD ZIMMERMAN, Magistrate Judge

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 Judgment.

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 Dr. Ursua.

  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 Orders.

  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 possibilities.

  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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