A bar that fostered a sexually charged atmosphere and designed a unisex bathroom with ADA stalls that had floor to ceiling walls and lockable doors owed a duty of care to protect patrons against sexual assault in the bathroom areas. The bar had notice of sexual activity throughout the bar and particularly in the bathroom areas. It posted a security guard in the bathroom but allowed the guard to roam off that post when the crowd thinned. It would not be unduly burdensome to change that policy to avoid the clearly foreseeable risk of nonconsensual sex in the bathroom area. The bar was not relieved of its duty of care merely because no prior rape had been reported. There was substantial evidence to support the jury’s finding that the lack of a guard in the bathroom was a substantial factor in causing the rape, as a guard would have observed and prevented the rapist from entering the same stall immediately after plaintiff. The $5 million award of noneconomic damages to plaintiff was not excessive.
California Court of Appeal, Second District, Division 3 (Hogue, J., sitting by assignment); July 14, 2016; 2016 WL 3753488