FILEDSAN mATEo couN Y

JAN 082015Clerk u odor Court

ByC CLEA i

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN MATEO

NICHOLAS CASTRO, Civil No. 517149

Plaintiff,

VS.

SEAHORSE BAR; DEANDREMACKIE (as Doe 41), MARLONBROWN (as Doe 42), ANDREMACKIE (as Doe 43), TOM BUCKLEas Doe 9), and SEAHORSE SALOONas Doe 10),

Defendants.

FINAL STATEMENT OF DECISIONAFTER COURT TRIAL

This matter came on for Court Trial commencing on October 14, 2014 and

concluding on October 21, 2014 (with interim delay due to illness of the judge) in

Department 2 of this Court before the Honorable Marie S. Weiner. David Hart, Esq.

appeared on behalf ofPlaintiffNicholas Castro. Peter Brewer and Henry Chuang of Law

Office of Peter N. Brewer appeared on behalf of Defendants Seahorse Saloon (also

erroneously named as Seahorse Bar) and Tom Buckle. Defendant Marlon Brownappeared in pro per. Defendants Deandre Mackie and Andre Mackie had defaults entered

1

against them on May 23, 2013 ( but not default judgments) and the trial proceeded as to

them as a " prove up" on the issue of damages.

This Court issued a Proposed Statement of Decision, filed October 29, 2014, and

provided the opportunity for objections prior to entry of a final statement of decision. No

objections were filed.

Upon due consideration of the evidence presented at trial, and consideration of the

pleadings and the oral argument of counsel and the parties, and the law presented in the

trial briefs, the Court

IT IS DECIDED, ORDERED AND ADJUDGED, as the Final Statement of

Decision, as follows:

Judgment after Default shall be entered in favor ofPlaintiff against

Defendant Andre Mackie in the amount of zero dollars. Although default was entered

against Andre Mackie on liability, there was no evidence at the court trial of any

involvement by Andre Mackie or any wrongful conduct by Andre Mackie causing any

injuries whatsoever to Plaintiff.

2. Judgment after Default shall be entered in favor ofPlaintiffNicholas

Castro against Defendant Deandre Mackie, on the cause of action for the intentional tort

of battery, in the amount of $69,963. 44; reduced to $45, 963. 44 pursuant to C.C. Section

1431. 2. No punitive damages are awarded.

3. Judgment shall be entered in favor ofPlaintiffNicholas Castro against

Defendants Seahorse Saloon and Tom Buckle (aka Thomas Buckle), jointly and

severally, on the causes of action for negligence and premises liability, in the amount of

69,963.44; reduced to $45, 963. 44 pursuant to CC. Section 1431. 2.

2

4. Judgment shall be entered in favor of Defendant Marlon Brown against

PlaintiffNicholas Castro, and Plaintiff shall take nothing on his claims against Brown.

5. Compensatory damages are calculated as follows:

21, 963. 44 past medical bills

0- future medical bills

0- wage loss/ income loss

48,000.00 past, present, and future pain and suffering

6. Pursuant to Civil Code Section 1431. 2, requiring allocation of non-

economic damages among and between the tortfeasors, whether intentional or negligent,

the Court finds that 50% of fault is allocated to Deandre Mackie and 50% of fault is

allocated to Seahorse Bar and Tom Buckle ( jointly). See Weidenfiller v. Star & Garter

199 1) 1 Cal.App.4t' 1 ( Section 1431. 2 applied to defendants in personal injury action

arising from an assault in the parking lot of a bar, even though the bar was held negligent

but the assailant was held for intentional tort).

THE COURT FINDS AS FOLLOWS:

The Court finds that Plaintiff has demonstrated the following facts by a

preponderance of the evidence -

Plaintiffs Damages

It is undisputed that Plaintiff sustained significant physical injuries arising fromthe " bar fight." Plaintiff fractured the head of his tibia and tore the adjoining meniscus

essentially a broken left knee. The injury was consistent with Plaintiff' s report that he

was kicked in the knee, it buckled, and he fell to the ground, where he was repeatedly

kicked. Plaintiff also suffered a broken bone on the top of his right hand, near the bottom

fc3

knuckle of the ring finger. This could have been caused by Plaintiff s hand hitting the

ground when he fell (see Exhibit 6, Admission Report) or by punching something orsomeone. Plaintiff also had bruises on his face.

Plaintiff was hospitalized for three days, and was thereafter subject to medical

treatment and physical therapy. Plaintiff had to have knee surgery, which including

implanting a metal plate and multiple metal screws. One of the treating doctors who

was the surgeon -- testified that Plaintiff was placed in an immobilizing brace for his

knee initially, and thereafter progressed to a bendable knee support but that Plaintiff

was not allowed to bear any weight for 6 to 8 weeks, and gradually progressed to some

weight-bearing and then full weight-bearing. Doctor testified that Plaintiff was not able

to walk and work for at least three months. The doctor indicated that the treatment was

successful and Plaintiff has healed.

Although Plaintiff has documentation ofhis medical bills (ofwhich the Court has

used the amount after any insurance company contractual reductions in bills), but only

has oral speculative evidence as to any future medical bills.

There is no doubt that Plaintiff reasonably suffered pain for months, while he was

experiencing and recovering from his injuries. In regard to Plaintiffs continuing

complaints of pain, it is outweighed by Plaintiffs prior medical history. Before this

incident (at age 31), Plaintiff had already sustained a broken right ankle and a

compression fracture to his back at T12. X-rays also reflected that Plaintiff had

previously had injury/injuries to his right hand. In addition, because of his prior injuries

and pain therefrom, Plaintiff was already dependent upon high doses of prescription pain

medicine (specifically 80 mg. OxyContin) which he took four times daily.

4

In regard to wage loss, Plaintiff presented evidence that he was not physically

able to work, but no substantive evidence that he was gainfully employed at the time.

Plaintiff only provided his oral estimate, and presented absolutely no supporting

documentary evidence, i.e., no financial statements, W2, 1099, tax returns, paycheck

stub, bank account statements, business card, invoices for services, etc. Plaintiff simply

testified that he worked on and off in pest prevention and painting, and that he had

established his own business in pest control/prevention yet he presented to evidence of

any such business or its financials. Indeed, there is nothing which substantiates

Plaintiff s claim that he was working at all at the time of the incident. Accordingly,

Plaintiff has failed in his burden ofproving any wage loss by a preponderance of the

evidence.

Plaintiffs Claims and Defendants' Defenses

Plaintiff has alleged causes of action for negligence and for premises liability

against Seahorse Saloon and its owner Tom Buckle, and alleged claims for intentional

tort of assault and battery and for negligence against Deandre Mackie, Marlon Brown,

and Andre Mackie. The Answers filed by Seahorse Saloon and Tom Buckle present

mostly inapplicable affirmative defenses under contract and equity law, with the only

possible affirmative defense being " assumption of the risk". Marlon Brown' s Answer

alleges no affirmative defenses. None of the Defendants specifically pleaded the

affirmative defense ofcontributory negligence or comparative negligence

Deandre Mackie and Andre Mackie had defaults entered against them. No

statement of damages was filed and served by Plaintiff prior thereto. Accordingly, as to

them, the trial proceeded as a " prove up" hearing on damages.

Facts of the Incident

In its essence, this lawsuit arises from a bar fight among a bunch of stupid guys

who had been drinking along with fighting by some loitering under -age youths. There is

no uniform story from the witnesses as to what happened, and the factual situation is

further complicated by the fact that most witnesses were uncooperative with the police

investigation the general attitude was " I don' t know nuthin', and I didn' t recognize no

one." Even Defendant Marlon Brown admitted at trial that he completely lied to the

police.

The parties stipulated to the admissibility of all trial exhibits presented, including

the totality of the police report as evidence without any hearsay objection.

Interestingly, the evidence included security camera videos of the interior of the

Seahorse Saloon that night, which assisted in juxtaposing the stories of the witnesses and

the chronology of events even though the fight occurred outside in front of the bar.

No evidence was presented by any party as to any involvement whatsoever of

Andre Mackie. There is no evidence that Andre Mackie was even at the scene that night.

He told the police that he was not there.

Considering the totality of the evidence presented, in the context of common

sense and common experience, the Court finds the facts of the incident to be as follows:

The relevant events in this case occurred on the evening of Saturday,

December 10, 2011 continuing into the early hours of Sunday, December 11, 2011, at the

location of the Seahorse Saloon in Pacifica.

Tom Buckle aka Thomas Buckle and his father Pat Buckle own the Seahorse

Saloon, and had only owned it approximately one month prior to this incident. The

establishment is a bar, not a restaurant. There are security cameras inside of the bar, but

G

there is no security officer (bouncer) employed by the bar. David Broder works for thebar only to check ID of the patrons, in order to keep out those under -age.

Defendant Marlon Brown and his " cousin" Deandre Mackie (possible spelling

may also be D' Andre Mackie) went to the Seahorse, and met up with Marlon' s friendBrad Jones.

A group of young, thin, African-American males went to the Seahorse Saloon.

Approximately three were allowed into the bar, and during the evening they were

socializing with Marlon and Deandre. Approximately four of the youths were

determined by Broder to be under age and were not allowed into the bar. These youths

continued to loiter outside of the bar, including the parking lot of the bar. They were not

chased away, not told to go away, or otherwise dissuaded from hanging about the outside

area of the bar, even though they were under -age. It is unclear as to whether these young

men were " with" Marlon and Deandre when they went to the Seahorse, or whether they

came separately.

Marlon Brown admits that at the time of the fight, he was under the influence of

alcohol.

Tom Buckle, an owner of the Seahorse, was working that evening as one of the

bartenders. While on the job, Tom was drinking. He is shown in the bar videos as

drinking at least five or six drinks (both beer and liquor) prior to the time of the fight. The Court concludes that Tom Buckle was under the influence of alcohol at the time of

the fight.

Michael Grillone, known as Mikey, is employed by the Seahorse. Although he

was not working that night, Mikey came to the Seahorse to socialize after attending a

7

BBQ, and had two drinks (vodka and soda) but stated that he was not under the influence

because he knew that he had to drive home that evening.

Mikey owns and uses a motorized scooter as his transportation, and he drove it to

the Seahorse that night, and parked it in the bar' s parking lot.

PlaintiffNicholas Castro came to the Seahorse around 12: 30 a.m. with his

girlfriend Jacqueline Simpkins to celebrate the birthday of her friend Chelsea Rasmussen

who met them at the bar). Plaintiff walked to the bar because he lives in the

neighborhood. Plaintiff had two beers at the bar, and claims that he was not intoxicated

at the time of the incident. The medical files for Plaintiff do not reflect any evidence that

Plaintiffwas under the influence of alcohol at the time. On the other hand, the medical

reports do reflect that Plaintiff daily took high doses ofprescription pain medicine and

thus may have been under the influence at the time of the fight due to the combination of

drugs and alcohol.

Tom and Mikey know Marlon, but do not know Deandre and do not know the

young black men who were socializing in the bar with them or who were outside in the

parking lot. Tom and Plaintiff have known each other since elementary school, but

Plaintiff did not know Marlon, or Deandre, or any of the African-American youths.

At some time, Marlon and Deandre went outside of the bar and stole Mikey' s

scooter, and put it in the back of a black SUV owned by Marlon, parked on the street near

the bar. They were assisted by some of the youths who had been loitering around the bar

parking lot.

Shortly after 1: 00 a.m., Mickey noticed that his scooter was missing, and came

back into the bar saying that his scooter was missing and could someone help him look

for it. Plaintiff agreed to help and started walking around the block to look for it.

8

Plaintiff saw some young black guys loading the scooter into a black vehicle, and

reported it to Mikey. Mikey came and saw the vehicle, and recognized it as belonging to

Marlon Brown. Brown drove away, accompanied by Deandre.

Mikey hurried back into the bar and reported the theft to Tom. Tom called a

mutual friend David Lloyd to try and get in contact with Marlon. They got Marlon' s

phone number, and Mikey talked to Marlon and asked him to return the scooter.

Marlon and Deandre were disrespectful in returning the scooter. Instead of

returning the scooter in the back of Marlon' s SUV, and apologizing for the situation,

Marlon drove his SUV back to the bar without the scooter and without an apology.

Mikey and Plaintiff spoke to Marlon outside the bar about returning the scooter. A few

minutes later, Deandre arrived at the bar, riding on Mikey' s scooter, and then he and the

scooter tipped over and crashed to the ground. Tom came out of the bar upon learning

that the scooter had returned.

Mikey, who is a person of slight build ( 125 lbs.) and mild manner, was simply

happy to have his scooter returned to him. He ran over and checked that it was intact.

Mikey took the scooter into the bar and wheeled it into the back so that no one could take

it again. As far as Mikey was concerned, the incident was over, and he was not involved

in any verbal or physical confrontation regarding his scooter. He told everyone to just

forget about the whole thing. But they didn' t.

Tom and Plaintiff engaged in a verbal argument with Deandre. Tom demanded

that Deandre admit that he took the scooter and apologize. Deandre denied taking the

scooter, refused to apologize, and claimed that he only "brought it back". Plaintiff told

Deandre that he saw Deandre take the scooter. Heated words were exchanged. The

loitering under -age youths were hanging around behind Deandre, as did Marlon. Guys in

E

the bar started coming outside and standing on the porch to watch the argument. Men

started crowding around and tensions were rising.

Although Tom professes that, at all times, he was trying to calm the situation, the

reality is that even based upon his own testimony -- it was Tom that created the tension

and escalated the situation by insisting upon an apology and admission of guilt from

Deandre about taking Mikey' s scooter. Plaintiff admittedly fed into that argument

instead of staying out of the matter, which was not his concern.

Tom realized that things were getting heated and might get out of hand, so he had

Broder escort Plaintiff (who was agitated) back into the bar while Tom turned and pushed

back the crowd standing in front of the door to try and get them to go back into the bar.

While his attention was diverted, Tom was punched by Deandre. Tom was then punched

by multiple people at the same time in the face. The brawl started as people from the bar

and from the parking lot area joined in. Tom was knocked down on his side and trampled

to the ground, where he was further punched by the black youths who had been loitering

outside the bar. Tom returned to the bar to wash off his blood, and did not see Plaintiff' s

physical fight.

Although Plaintiff was escorted back into the bar, he wanted to know what was

going on, so he promptly left the bar by going out of the front door, but went down the

handicap ramp, which was to the side of the entrance along the building thus

circumventing the front steps of the bar where the fight was going on with Tom.

It is true, as Defendants suggest, that Plaintiff would have been better off if he had

stayed in the bar, rather than going back outside. Yet, the evidence supports the findings

that Plaintiff did not start the fight and did not willingly engage in fighting rather he

was attacked by Deandre and the loitering youths.

10

As Plaintiff came down the side ramp, he was hit from the side by one of the

loitering youths, chased up the ramp, and was grabbed by his sweatshirt and put into a

head lock. Plaintiff started swinging to try and get free. Plaintiff was thrown or kicked

to the ground by Deandre, where Deandre and the loitering youths ganged up to

repeatedly kicking Plaintiff while he was helpless on the ground.

Marlon tried to break up the fighting, but ended up getting hit in the face and had

his glasses broken. Marlon grabbed Deandre to stop him from fighting, put him in

Marlon' s SUV, and drove away while the fighting was still going on.

Broder came over and started pulling guys off ofPlaintiff. Plaintiff indicated that

he was injured, and asked Broder to get Plaintiff' s truck and drive him to the hospital.

Broder told Tom and Mickey that he was taking Plaintiff to the hospital, got Plaintiffs

girlfriend from inside the bar, and they went and took Plaintiff to the hospital.

Other bar patrons ( all males) also participated in the brawl (once it got started), it

was over rather quickly, and no one apparently sustained any significant injuries exceptPlaintiff.

Once the fight was over, Tom quickly cashed out all of the patrons and closed the

bar for the night.

Tom testified that he did not call the police at any time that evening. Tom said

that the fight started so quickly and ended quickly that there was no time to even consider

calling the police. Tom has a policy and practice of having the staff not call the police,

but rather that the staff should try and " defuse the situation" by talking first. Tom does

not want the police around his bar because it is bad for business, because patrons don' t

want the police around. Tom has a negative attitude towards the local police, who he

says have harassed him and his family on many occasions.

11

It should also be noted that there appears to be no reason why the Plaintiff

couldn' t have called the police, if he thought it appropriate or necessary.

Tom testified that Deandre was the one who first hit him. Brown testified that

Deandre came at Plaintiff, and that Deandre and Plaintiff were in a physical fight.

Plaintiff and Broder testified that some of the loitering youths were hitting and kicking

Plaintiff. Sheldon Gustafson, one of the patrons and the friend ofPlaintiff, told the police

that the person who first punched Tom was the same person who then struck Plaintiff.

Police Report, p. 12.) In a telephone interview with the police, Deandre admitted that a

white male he did not know (Plaintiff) swung at him, and that Deandre stuck Plaintiff inthe fight. ( Police Report, p. 17.) The Court concludes that Deandre assaulted Plaintiff.

Plaintiff knew none of the guys who attacked him. Plaintiff testified that Marlon

Brown was one of the people who kicked him. No other witness identifies Marlon as

being in a fight with Plaintiff. Indeed the other witnesses say that Marlon was not

actively involved in the fighting. Although Plaintiff claims that it was Marlon who

attacked him, Plaintiff was unable to identify him in a photo line-up at the time. From

the testimony ofvarious witnesses, the instigators of the physical fight were not familiar

to the usual Seahorse patrons, except that they knew the name of Marlon Brown, who had

been hanging around with those guys during the evening. Thus, the only name that

Plaintiff heard at the time of the incident was Marlon' s. The Court concludes that

Plaintiff has not proven by a preponderance of the evidence that Marlon Brown caused

him physical injuries.

Negligence Case Law

Plaintiff has two theories of liability against Marlon Brown: ( 1) that Brown

physically assaulted Plaintiff and caused injuries, and is liable for intentional tort; and (2)

12

that Brown' s stealing of the scooter was the triggering event that ultimately resulted in

the fight, causing Plaintiff's injuries, and is liable for negligence.

As set forth above, Plaintiff has not demonstrated by a preponderance of the

evidence that Marlon Brown physically attacked Plaintiff. As for Brown' s involvement

in taking (and returning) Mikey' s scooter, Brown' s personal involvement is undisputed but Brown owed no duty t6o Plaintiff. A duty might have existed if the injured plaintiff

was Mikey, but Brown owed no legal duty to Plaintiff in regard to the scooter events, or

the verbal arguments when the scooter was returned, or to stop the physical fighting that

Brown did not start.

The same is not true as to the bar. Seahorse Saloon and its owner Tom Buckle did

have an affirmative duty of care to its patrons, including Plaintiff. The California

Supreme Court addressed this in the companion cases of Delgado v. Trax Bar & Grill

2005) 36 Cal.4th 224, and Morris v. De La Torre (2005) 36 Cal.4th 260. Although the

parties also refer to Mata v. Mata (2003) 105 Ca1.App.4th 1121, the Supreme Court held

in Delgado that the language in Mata was overly expansive, and the decisions in Morris

and Delgado supersede Mata.

Although there is no general duty to act to protect others from the conduct of third

parties, there is such a duty if there exists a " special relationship" with the other person.

It is established that business proprietors such as shopping

centered, restaurants, and bars owe a duty to their patrons to maintain their

premises in a reasonably safe condition, and that this duty includes an

obligation to undertake " reasonable steps to secure common areas against

foreseeable criminal acts of third parties that are likely to occur in the

absence of such precautionary measures." [ Citations.]

13

Delgado, at p. 129; see also at page 235.

In Delgado, the Supreme Court held that proprietors ofbars and restaurants are

not required to have a security guard specifically, or undertake " burdensome preventative

measures"," still owes a duty of due care to a patron or invitee by virtue of the special

relationship, and there are circumstances ... that may give rise to liability based upon the

proprietor' s special relationship." Delgado, at p. 241. This includes a duty to protect

patrons by taking " reasonable and appropriate measures to protect patrons or invitees

from imminent or ongoing criminal conduct", including telephoning the police or 911 for

assistance, " or protecting patrons or invitees from an imminent and known peril lurking

in a parking lot by providing an escort by existing security personnel to a car in that

parking lot." Delgado, at p. 241.

In regard to bar particularly, "California decisions long have recognized, under

the special relationship doctrine, that a proprietor must `exercise reasonable care to

protect his patrons from injury at the hands of fellow guest'. [ Citation.]" Delgado, at p. 241. This includes " a duty to respond to events unflding in its presence by undertaking

reasonable, relatively simple, and minimally burdensome measurers." Id at p. 245.

In regard to bars, a duty to take action arises " when one or more of the following

circumstances exists:

1) A tavern keeper allowed a person on the premises who has

a known propensity for fighting;

2) the tavern keeper allowed a person to remain on the

premises whose conduct had become obstreperous and aggressive to such

a degree the tavern keeper knew or ought to have known he endangered

others;

14

3) the tavern keeper had been warned of danger from an

obstreperous patron and failed to take suitable measures for the protection

of others;

4) the tavern keeper failed to stop a fight as soon as possible

after it started;

5) the tavern keeper failed to provide a staff adequate to police

the premises; and

6) the tavern keeper tolerated disorderly conditions."

Delgado, at p. 241.

In the present case, as to prong three, the " tavern keeper" did not stop the fight,

but rather waited until his part of it was done, and left to go inside and wash up while

Plaintiff was still being beaten on the ground. As to prong four, Seahorse Saloon failed

to provide sufficient staff to police the premises, because neither Tom Buckle or David

Broder or any other staff undertook the simple task of requiring the multiple under -age

youths from hanging around the bar property especially after they were involved in

stealing Mikey' s scooter. As for the fifth prong, the " tavern keeper" did indeed tolerate

disorderly conditions". These included (a) allowing loitering of under -age youthsoutside of a bar who were involved in criminal activities on or near bar property, (b) Tom

Buckle drinking to the point of intoxication while working as a bartender at the Seahorse

Saloon, and (c) Tom Buckle starting and escalating the verbal argument with Deandre

and the other people involved in taking Makey' s scooter.

Thus, under Delgado, Seahorse Saloon and its owner Tom Buckle breached their

special relationship duty to patron Plaintiff.

15

In Morris v. De La Torre, 36 CalAth 260, the plaintiff was injured by third parry

criminals in the parking lot of a restaurant. Plaintiff, a frequent customer, was waiting

outside of the restaurant while his friends bought food While there, the plaintiff was

beaten and stabbed by gang members, who also vandalized plaintiffs' car, then followed

plaintiff and stabbed him some more. All of this was seen by the restaurant employees,

who did nothing, and did not call the police. The Supreme Court held that the restaurant

owed a special relationship duty to the plaintiff, as an " invitee", even though he did not

actually buy anything from the restaurant that day; and held that a trier of fact would find

that the restaurant staff did not act reasonably in failing to undertake minimal measures to

protect the plaintiff, such as calling 911.

A]s a general matter a proprietor' s special -relationship -based duty to its patronsor invitees includes an obligation to make such a [ 911 ] call, or to take other similar

minimal measures. [ Citations.]" Morris, at p. 277. Although the defendants suggested

that the employees might have been fearful for themselves by getting involved with

calling the police and having the gang members retaliate, there was evidence that the

restaurant employees did not want to call the police for personal reasons because they

were illegal immigrants with no identification, working illegally. Morris, at p. 278.

Here, the bar owner and the bar staff did not call for help to the authorities. One

admitted reason was that Tom Buckle did not want any police to come to the bar ever

because it was bad for business and he didn' t like the local policed

The Supreme Court held that a " special relationship" existed between the plaintiff

and the restaurant, even though the plaintiff was only a " invitee" and not a customer that

night, and even though the attack took place outside of the restaurant rather than inside

the restaurant. " it is well established that a proprietor' s special relationship based duty

to customers or invitees extends beyond the structure of a premises to areas within the

proprietor' s control." Morris, at D. 274.

Whether Defendants should have called the police is only one component

of the story. It is more relevant that, instead of simply obtaining return of the scooter,

giving it back to Mikey, and dropping the subject, Tom Buckle (and thus the SeahorseSaloon) insisted upon pressing the point by arguing with the perpetrators and insisting

that they should admit fault and apologize. That is what led to the fight. Further,

Seahorse Saloon and Tom Buckle were negligent in allowing under -age guys to loiter

outside of the bar on the Seahorse property. This was simply asking for trouble. Indeed,

these youths were apparently involved in the theft of the scooter, and affirmatively

ganged up to physically attack and outnumber both Tom and Plaintiff, especially while

they were lying on the ground.

Affirmative Defense ofAssumption of the Risk

In regard to the affirmative defense asserted by Seahorse Saloon and Tom Buckle

for assumption of the risk, the burden ofproof is upon these Defendants to demonstrate

that Plaintiff intentionally and knowingly participated in the fight, which caused his

injuries.

In Knight v. Jewett ( 1992) 3 CaLe 296, the California Supreme Court updated

the law on assumption of the risk, and distinguished between " primary" assumption of

the risk and " secondary" assumption of the risk which distinction initially focuses on

whether the defendant owed a duty of care to the plaintiff in the first place. If so, the

assumption of the risk is not a complete bar to the plaintiff' s claim for injuries if they

arise out of breach of the duty by the defendant.

17

First, in "primary assumption of risk" cases where the defendant

owes no duty to protect the plaintiff from a particular risk ofharm a

plaintiff who has suffered such harm is not entitled to recover from the

defendant, whether the plaintiff' s conduct in undertaking the activity was

reasonable or unreasonable. Second, is " secondary assumption of risk"

cases -- involving instances in which the defendant has breached the duty

of care owed to the plaintiff the defendant is not entitled to be entirely

relieved of liability for an injury proximately caused by such breach,

simply because the plaintiff' s conduct in encountering the risk of such an

injury was reasonable rather than unreasonable. Third and finally, the

question whether the defendant owed a legal duty to protect the plaintiff

from a particular risk of harm does not turn on the reasonableness or

unreasonableness of the plaintiff' s conduct, but rather on the nature of the

activity or sport in which the defendant is engaged and the relationship of

the defendant and the plaintiff to that activity or sport. ( Emphasis

original.)

Kni t, 3 Cal.4t' at p. 309.

In cases involving "primary assumption of risk" where, by virtue

of the nature of the activity and the parties' relationship to the activity, the

defendant owes no legal duty to protect the plaintiff from the particular

risk of harm that caused the injury the doctrine continues to operate as a

complete bar to the plaintiff' s recovery. In cases involving " secondary

assumption of risk" where the defendant does owe a duty of care to the

plaintiff, but the plaintiff proceeds to encounter a known risk imposed by

18

the defendant' s breach of duty the doctrine is merged into the

comparative fault scheme, and the trier of fact, in apportioning the loss

resulting from the injury, may consider the relative responsibility of theparties.

Knight, at pp. 314-315.

The California Supreme Court affirmatively rejected the application of the

defense based upon " implied consent" or the subjective knowledge of the plaintiff.

Instead the focus is upon the objective tests of the existence of a duty and the nature of

the activity engaged in. Knight, at pp. 315- 317.

As set forth above, the Seahorse Saloon and Tom Buckle owed a duty of due care

to its patrons, including Plaintiff. Thus " primary" assumption of the risk cannot apply,

and cannot bar Plaintiff' s negligence claim. In regard to " secondary" assumption of the

risk, it does not and cannot come into play unless the plaintiff voluntarily participated in

the knowingly hazardous activity, i.e., the fight. The Court finds that " encountering a

known risk" here has to be more than simply being in the area of a fight and watching the

fight; it would have to be knowingly participating in the fight itself. Defendants have

failed to demonstrate this by a preponderance of the evidence.

DATED: January 7, 2015

HON. MAR& S. WEINERJUDGE OF THE SUPERIOR COURT

19