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Latest California Supreme Court Cases on Liability of Bar & Restaurant Owners When Patrons are Injured by Criminals

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October 23, 2006

By: , , and

On July 1, 2005, the California Supreme Court handed down its decisions in the companion cases of Michael Delgado v. Trax Bar & Grill, ____ Cal. 4th ______ (2005) and Charles Morris, IV v. Silvino De La Torre, ____ Cal. 4th ____ (2005). Both cases specifically addressed the legal obligations that Bar and Restaurant owners have to protect their patrons and customers from ongoing or imminent criminal acts by third parties. Although the two cases dealt with a bar and restaurant respectively, the legal principles enunciated in these decisions have a broad application to any business owner in California. While addressing a narrow issue, the Court's decisions summarized the other circumstances when the law imposes an obligation on a business proprietor to protect its customers from third party criminal activity that may endanger the safety of its customers or patrons. Consequently, these new Supreme Court decisions provide us with an opportunity to neatly summarize three of the situations where California law mandates that a business proprietor takes action to protect its customers.

The first issue that needs clarification, and is addressed by the court in Morris, is who Bar and Restaurant owners have to protect. For some time now, California case law has held that business owners have a legal duty to take reasonable steps to protect customers and patrons from the foreseeable criminal acts of third parties. The Supreme Court in Morris makes it clear that this duty of care extends not only to paying customers, but also to "invitees." The Supreme Court in Morris defined invitees as a "prospective customer on the premises" even though not a paying customer at the time of the injury-causing event. The Court went on to elaborate that an invitee is a potential customer, i.e., a person that is within the class of persons a merchant normally desires to have observe and inspect his merchandise, whether or not he was in a position to make a purchase at that particular time. Consequently, these decisions have made clear that a business owners' duty of care to protect against third party criminal activity extends to a almost anyone who is on their premises, whether they are a paying customer or not.

The following are the three circumstances where the law clearly obligates a Bar and Restaurant owner to take steps to protect its customers.

1. Knowledge of Prior Criminal Activity

When a Bar or Restaurant owner has knowledge of prior third party criminal activity on the premises he owns or controls, including adjacent parking lots in some circumstances, they have a legal obligation to provide security guards to protect the safety of their patrons and invitees.

The above Supreme Court decisions reaffirmed that even if the financial cost is substantial, a Bar and Restaurant owner that has knowledge of prior similar criminal activity and who does not hire some form of security guard, will be found to have breached its duty of care to protect its patrons and that in turn may expose it to a considerable damages award for anyone that is injured.

Bar and Restaurant owners should be warned that even though California law clearly imposes the above obligation when the proprietor has knowledge of criminal activity on its own premises, the case law has left opened the possibility that other circumstances, such as criminal activity occurring on the premises of a nearby and substantially similar business establishment might provide the knowledge ("degree of foreseeability") that would obligate them to hire private security guards to protect its own customers. We are unaware of any California case that has imposed this legal obligation on a Bar or Restaurant owner when the third party criminal activity occurred on a nearby or similar business establishment, however, we feel compelled to raise the issue so that it will not be ignored in any assessment of risk.

2. The Provision of Medical Attention or Assistance

It is well known, and hardly contentious, that Bar and Restaurant owners have a legal obligation to undertake relative simple measures such as providing assistance to their customers who become ill or need medical attention. The simple act of calling 911 for emergency medical personnel is sufficient for the Bar and Restaurant owner to meet its legal obligation in these circumstances.

3. Serving Intoxicating Liquor

California case law has long recognized that a business proprietor who serves intoxicating drinks to customers for consumption on the premises must "exercise reasonable care to protect his patrons from injury at the hands of fellow guests." This legal duty or obligation arises under a number of different and separate circumstances that include: (1) when a bar owner allows a person on the premises who has a known propensity for fighting; (2) when a bar owner allows a person to remain on the premises whose conduct has become aggressive; (3) when a bar owner has been warned of danger because of the aggressive actions of one of the patrons but has failed to take suitable measures to protect others; (4) when a bar owner has failed to stop a fight as soon as possible after it started; (5) when a bar owner fails to provide staff adequate to police the premises; and (6) when a bar owner tolerates disorderly conduct.

4. Protection from Imminent or Ongoing Criminal Conduct

The Supreme Court in both Delgado and Morris reiterated the principle of California law that Bar and Restaurant owners have a duty to take reasonable and appropriate measures to protect patrons and/or invitees from imminent or "ongoing" criminal conduct. Case law has defined that these measures may include telephoning the police or 911 for assistance, or protecting a patron from an imminent and known peril lurking in a parking lot by providing an escort to a car in that parking lot. The facts of both cases help illustrate and define the extent of the business owner's legal obligation under this principle of law.

Michael Delgado v. Trax Bar & Grill

On weekend nights in 1998, the bar employed two persons variously referred to as "security guards" or "bouncers." One guard was stationed on a stool outside the bar in the bar's parking lot. The second guard was stationed inside the bar.

Plaintiff and his wife arrived at the Trax Bar at approximately 10:00 to 10:30 on a Saturday night in November 1998. After entering the bar, and over the course of the following 60 to 90 minutes, plaintiff consumed one beer. During this time another patron, Jacob Joseph (whom plaintiff did not know), and Joseph's three or four companions, stared at plaintiff on numerous occasions, and plaintiff stared back at the group. There was no verbal or physical interaction between plaintiff and Joseph or his companions at that time.

Prior to midnight plaintiff had become uncomfortable as a result of the continued staring and decided to leave. Although the trial testimony was not entirely consistent, the jury could have found the following:

(1) Plaintiff's wife approached the interior security person and expressed concern that "there is going to be a fight";

(2) The interior security guard then observed the hostile stares between plaintiff and Joseph and concluded that a fight was imminent;

(3) He determined that, under the circumstances, it would be best to ask plaintiff and his wife to leave, and he made that request;

(4) Plaintiff and his wife thereafter left the bar but the interior security guard did not escort them to their car in the parking lot;

(5) When plaintiff and his wife began to walk through the parking lot toward their car, which was parked approximately 40 feet from the door, the guard who earlier had been posted outside was no longer was present, but 12 to 20 men were standing in the parking lot;

(6) This situation was contrary to the bar's policy of dispersing such gatherings; and

(7) Joseph and his companions followed plaintiff and assaulted him.

Plaintiff suffered a fractured skull and a subdural hematoma, was hospitalized for 16 days, and subsequently experienced adverse personality changes as well as chronic headaches.

Based on the above facts, the Supreme Court concluded that the bar owner had a legal duty to plaintiff to respond to the unfolding events by taking reasonable, relatively simple, and minimally burdensome steps in order to address the imminent danger that the interior security guard perceived against plaintiff, and, specifically, in order to accomplish the separation that he had determined was necessary. At the very least, the Court concluded, the interior security guard should have walked plaintiff and his wife to their car, or made further efforts to ensure that they could remain separated from Joseph and his other companions whom the bar security guard perceived to be the threat.

Consequently, the Supreme Court held that on the facts of this case a jury could determine that the bar owner breached its duty of care to plaintiff and his wife.

Charles Morris, IV. v. Silvino De La Torre

The companion Supreme Court case dealt with a restaurant rather than a bar. Defendant Silvino De La Torre is the proprietor of Victoria's Mexican Food, a 24 hour restaurant located in a small shopping center in San Diego's Nestor area. At the time relevant here the other five businesses in the center generally maintained only daytime business hours. A parking area located directly in front of the restaurant served the entire shopping center. Under the terms of his lease, the defendant enjoyed the non-exclusive use of the entire parking lot and paid 20 percent of the maintenance costs for that common area.

The restaurant has an approximately 40-foot wide store front of large plate glass windows that afford an unobstructed view of the parking area. The restaurant posts advertising in the windows that can be read from the parking lot. A narrow dining section is located in the front of the restaurant interior. A standard height counter separates that an area from an open kitchen. At one end of the counter is a gate at counter height, allowing access from the dining area to the open kitchen. At the other end of the counter, between the counter and the kitchen, a private telephone is mounted on a wall below counter height.

At approximately 1:00 a.m. on August 1, 2000, plaintiff and his friends arrived in a car and parked in the area immediately in front of the restaurant. Two of plaintiff's friends entered the restaurant to purchase food while plaintiff and two other friends waited outside. Plaintiff, a frequent customer of the restaurant, had a stomach ache and did not plan to eat. Soon thereafter two members of the Nestor Street gang arrived and accosted plaintiff and his friends. A fight soon broke out next to the car in which plaintiff was sitting and one of the gang members ran into the restaurant and yelled to its employees in Spanish that he wanted a knife. Although there is conflicting testimony as to how the gang member obtained the knife, he did enter into the kitchen and leave with a 12-inch knife. Approximately 25 feet from where the employees were watching from inside the restaurant, one of the gang members stabbed plaintiff at least twice. The employees continued to watch as the gang member chased two of plaintiff's companions who ran out of the parking lot and across the street. Unable to overtake them, the gang member returned to the car in which plaintiff and his companions had arrived and used the knife to puncture three of its tires. Meanwhile one of plaintiff's companions ran to a nearby fast food restaurant where he used a pay phone to call 911. The gang members drove off in their car and soon tracked down plaintiff who had stopped, wounded on a nearby public sidewalk. Plaintiff was then stabbed several more times. Three minutes and 58 seconds after plaintiff's companion called 911, police arrived on the scene.

The question posed by the Supreme Court in this particular case was whether on these facts the employees of the restaurant had any duty to plaintiff to take reasonable action for his protection at some point during the ongoing conduct. On the facts of this case, the Supreme Court answered that question affirmatively and concluded that the employees of the restaurant had an obligation, at the very least, to call 911 and alert the police that they were needed. After considering some earlier authorities where the courts had concluded that there was no obligation on a business proprietor to take an action which might endanger the safety of its employees or other patrons present on the premises, the Supreme Court went on to hold:

Although, as noted above, there may be situations in which the response that is "appropriate and reasonable under the circumstances" includes not making such a call--as when doing so unreasonably would increase the danger to a patron, invitee, employee, or anyone else legally upon the premises--we find that as a general matter a proprietor's special-relationship-based duty to its patrons or invitees includes an obligation to make such a call, or to take other similar minimal measures.

Morris at p. ___.

The Supreme Court discussed two other issues in this decision that are relevant to a Bar and Restaurant owner's duty of care to its patrons. First, the Court reconfirmed that the restaurant owner in this case owed a duty of care to plaintiff notwithstanding that he remained in his friend's car in the parking lot outside the restaurant and was not a paying customer. As discussed above, plaintiff in this instance was an invitee or potential customer, and therefore the restaurant owner's duty of care extended to him as well. Second, the Court held in the circumstances of this case that the restaurant owner had sufficient control over the area of the parking lot where the fight first commenced to support the conclusion that its duty of care extended to plaintiff. The factors that the Court relied on to conclude that the restaurant owner's duty of care extended beyond the restaurant's physical structure included:

(1) Apparently customers and invitees regularly used the parking lot when patronizing defendant's restaurant;

(2) Defendant was aware of this use and posted in its windows advertising that could be read from the parking lot;

(3) The area of the parking lot where the altercation and initial stabbing occurred was directly in front of the restaurant's window;

(4) Defendant's lease authorized non-exclusive use of the parking area for customers and invitees with cars; and

(5) A reasonable inference can be drawn that defendant realized a significant commercial benefit from his customers' use of the parking lot.

FACTORS TO BE CONSIDERED IN RISK MANAGEMENT

Based on the Supreme Court decisions discussed above, Bar and Restaurant owners, as well as all business proprietors, should consider the following factors when determining their potential legal liability as a result of criminal acts by third parties:

(1) Their duty of care to act reasonably to protect their customers extends to non-paying customers and potential customers;

(2) Their duty of care to act reasonably to protect their customers may extend beyond the physical structure that the business occupies, and include adjacent areas and parking lots;

(3) Unless it would increase the danger to themselves or other patrons, employees should be trained to call 911 and request police assistance when they observe imminent or ongoing criminal conduct, i.e., they must respond to "unfolding events";

(4) An incident of criminal conduct on the Bar or Restaurant owner's premises that endangers the safety of its patrons mandates that the owner take steps that may include the hiring of security guards to protect the safety of its patrons in the future; and

(5) Knowledge of third party criminal acts at nearby bars or restaurants may require the Bar or Restaurant owner to take additional steps to protect the safety of its customers.

We hope the above helps you in managing and assessing the risk to Bar and Restaurant owners based on the criminal activities of third parties. We are available to discuss these issues with you at any time. If you have any questions concerning the above, or require further advice, do not hesitate to contact Paul Caleo or Dave Wilgus.

October 23, 2006

By: , , and

On July 1, 2005, the California Supreme Court handed down its decisions in the companion cases of Michael Delgado v. Trax Bar & Grill, ____ Cal. 4th ______ (2005) and Charles Morris, IV v. Silvino De La Torre, ____ Cal. 4th ____ (2005). Both cases specifically addressed the legal obligations that Bar and Restaurant owners have to protect their patrons and customers from ongoing or imminent criminal acts by third parties. Although the two cases dealt with a bar and restaurant respectively, the legal principles enunciated in these decisions have a broad application to any business owner in California. While addressing a narrow issue, the Court's decisions summarized the other circumstances when the law imposes an obligation on a business proprietor to protect its customers from third party criminal activity that may endanger the safety of its customers or patrons. Consequently, these new Supreme Court decisions provide us with an opportunity to neatly summarize three of the situations where California law mandates that a business proprietor takes action to protect its customers.

The first issue that needs clarification, and is addressed by the court in Morris, is who Bar and Restaurant owners have to protect. For some time now, California case law has held that business owners have a legal duty to take reasonable steps to protect customers and patrons from the foreseeable criminal acts of third parties. The Supreme Court in Morris makes it clear that this duty of care extends not only to paying customers, but also to "invitees." The Supreme Court in Morris defined invitees as a "prospective customer on the premises" even though not a paying customer at the time of the injury-causing event. The Court went on to elaborate that an invitee is a potential customer, i.e., a person that is within the class of persons a merchant normally desires to have observe and inspect his merchandise, whether or not he was in a position to make a purchase at that particular time. Consequently, these decisions have made clear that a business owners' duty of care to protect against third party criminal activity extends to a almost anyone who is on their premises, whether they are a paying customer or not.

The following are the three circumstances where the law clearly obligates a Bar and Restaurant owner to take steps to protect its customers.

1. Knowledge of Prior Criminal Activity

When a Bar or Restaurant owner has knowledge of prior third party criminal activity on the premises he owns or controls, including adjacent parking lots in some circumstances, they have a legal obligation to provide security guards to protect the safety of their patrons and invitees.

The above Supreme Court decisions reaffirmed that even if the financial cost is substantial, a Bar and Restaurant owner that has knowledge of prior similar criminal activity and who does not hire some form of security guard, will be found to have breached its duty of care to protect its patrons and that in turn may expose it to a considerable damages award for anyone that is injured.

Bar and Restaurant owners should be warned that even though California law clearly imposes the above obligation when the proprietor has knowledge of criminal activity on its own premises, the case law has left opened the possibility that other circumstances, such as criminal activity occurring on the premises of a nearby and substantially similar business establishment might provide the knowledge ("degree of foreseeability") that would obligate them to hire private security guards to protect its own customers. We are unaware of any California case that has imposed this legal obligation on a Bar or Restaurant owner when the third party criminal activity occurred on a nearby or similar business establishment, however, we feel compelled to raise the issue so that it will not be ignored in any assessment of risk.

2. The Provision of Medical Attention or Assistance

It is well known, and hardly contentious, that Bar and Restaurant owners have a legal obligation to undertake relative simple measures such as providing assistance to their customers who become ill or need medical attention. The simple act of calling 911 for emergency medical personnel is sufficient for the Bar and Restaurant owner to meet its legal obligation in these circumstances.

3. Serving Intoxicating Liquor

California case law has long recognized that a business proprietor who serves intoxicating drinks to customers for consumption on the premises must "exercise reasonable care to protect his patrons from injury at the hands of fellow guests." This legal duty or obligation arises under a number of different and separate circumstances that include: (1) when a bar owner allows a person on the premises who has a known propensity for fighting; (2) when a bar owner allows a person to remain on the premises whose conduct has become aggressive; (3) when a bar owner has been warned of danger because of the aggressive actions of one of the patrons but has failed to take suitable measures to protect others; (4) when a bar owner has failed to stop a fight as soon as possible after it started; (5) when a bar owner fails to provide staff adequate to police the premises; and (6) when a bar owner tolerates disorderly conduct.

4. Protection from Imminent or Ongoing Criminal Conduct

The Supreme Court in both Delgado and Morris reiterated the principle of California law that Bar and Restaurant owners have a duty to take reasonable and appropriate measures to protect patrons and/or invitees from imminent or "ongoing" criminal conduct. Case law has defined that these measures may include telephoning the police or 911 for assistance, or protecting a patron from an imminent and known peril lurking in a parking lot by providing an escort to a car in that parking lot. The facts of both cases help illustrate and define the extent of the business owner's legal obligation under this principle of law.

Michael Delgado v. Trax Bar & Grill

On weekend nights in 1998, the bar employed two persons variously referred to as "security guards" or "bouncers." One guard was stationed on a stool outside the bar in the bar's parking lot. The second guard was stationed inside the bar.

Plaintiff and his wife arrived at the Trax Bar at approximately 10:00 to 10:30 on a Saturday night in November 1998. After entering the bar, and over the course of the following 60 to 90 minutes, plaintiff consumed one beer. During this time another patron, Jacob Joseph (whom plaintiff did not know), and Joseph's three or four companions, stared at plaintiff on numerous occasions, and plaintiff stared back at the group. There was no verbal or physical interaction between plaintiff and Joseph or his companions at that time.

Prior to midnight plaintiff had become uncomfortable as a result of the continued staring and decided to leave. Although the trial testimony was not entirely consistent, the jury could have found the following:

(1) Plaintiff's wife approached the interior security person and expressed concern that "there is going to be a fight";

(2) The interior security guard then observed the hostile stares between plaintiff and Joseph and concluded that a fight was imminent;

(3) He determined that, under the circumstances, it would be best to ask plaintiff and his wife to leave, and he made that request;

(4) Plaintiff and his wife thereafter left the bar but the interior security guard did not escort them to their car in the parking lot;

(5) When plaintiff and his wife began to walk through the parking lot toward their car, which was parked approximately 40 feet from the door, the guard who earlier had been posted outside was no longer was present, but 12 to 20 men were standing in the parking lot;

(6) This situation was contrary to the bar's policy of dispersing such gatherings; and

(7) Joseph and his companions followed plaintiff and assaulted him.

Plaintiff suffered a fractured skull and a subdural hematoma, was hospitalized for 16 days, and subsequently experienced adverse personality changes as well as chronic headaches.

Based on the above facts, the Supreme Court concluded that the bar owner had a legal duty to plaintiff to respond to the unfolding events by taking reasonable, relatively simple, and minimally burdensome steps in order to address the imminent danger that the interior security guard perceived against plaintiff, and, specifically, in order to accomplish the separation that he had determined was necessary. At the very least, the Court concluded, the interior security guard should have walked plaintiff and his wife to their car, or made further efforts to ensure that they could remain separated from Joseph and his other companions whom the bar security guard perceived to be the threat.

Consequently, the Supreme Court held that on the facts of this case a jury could determine that the bar owner breached its duty of care to plaintiff and his wife.

Charles Morris, IV. v. Silvino De La Torre

The companion Supreme Court case dealt with a restaurant rather than a bar. Defendant Silvino De La Torre is the proprietor of Victoria's Mexican Food, a 24 hour restaurant located in a small shopping center in San Diego's Nestor area. At the time relevant here the other five businesses in the center generally maintained only daytime business hours. A parking area located directly in front of the restaurant served the entire shopping center. Under the terms of his lease, the defendant enjoyed the non-exclusive use of the entire parking lot and paid 20 percent of the maintenance costs for that common area.

The restaurant has an approximately 40-foot wide store front of large plate glass windows that afford an unobstructed view of the parking area. The restaurant posts advertising in the windows that can be read from the parking lot. A narrow dining section is located in the front of the restaurant interior. A standard height counter separates that an area from an open kitchen. At one end of the counter is a gate at counter height, allowing access from the dining area to the open kitchen. At the other end of the counter, between the counter and the kitchen, a private telephone is mounted on a wall below counter height.

At approximately 1:00 a.m. on August 1, 2000, plaintiff and his friends arrived in a car and parked in the area immediately in front of the restaurant. Two of plaintiff's friends entered the restaurant to purchase food while plaintiff and two other friends waited outside. Plaintiff, a frequent customer of the restaurant, had a stomach ache and did not plan to eat. Soon thereafter two members of the Nestor Street gang arrived and accosted plaintiff and his friends. A fight soon broke out next to the car in which plaintiff was sitting and one of the gang members ran into the restaurant and yelled to its employees in Spanish that he wanted a knife. Although there is conflicting testimony as to how the gang member obtained the knife, he did enter into the kitchen and leave with a 12-inch knife. Approximately 25 feet from where the employees were watching from inside the restaurant, one of the gang members stabbed plaintiff at least twice. The employees continued to watch as the gang member chased two of plaintiff's companions who ran out of the parking lot and across the street. Unable to overtake them, the gang member returned to the car in which plaintiff and his companions had arrived and used the knife to puncture three of its tires. Meanwhile one of plaintiff's companions ran to a nearby fast food restaurant where he used a pay phone to call 911. The gang members drove off in their car and soon tracked down plaintiff who had stopped, wounded on a nearby public sidewalk. Plaintiff was then stabbed several more times. Three minutes and 58 seconds after plaintiff's companion called 911, police arrived on the scene.

The question posed by the Supreme Court in this particular case was whether on these facts the employees of the restaurant had any duty to plaintiff to take reasonable action for his protection at some point during the ongoing conduct. On the facts of this case, the Supreme Court answered that question affirmatively and concluded that the employees of the restaurant had an obligation, at the very least, to call 911 and alert the police that they were needed. After considering some earlier authorities where the courts had concluded that there was no obligation on a business proprietor to take an action which might endanger the safety of its employees or other patrons present on the premises, the Supreme Court went on to hold:

Although, as noted above, there may be situations in which the response that is "appropriate and reasonable under the circumstances" includes not making such a call--as when doing so unreasonably would increase the danger to a patron, invitee, employee, or anyone else legally upon the premises--we find that as a general matter a proprietor's special-relationship-based duty to its patrons or invitees includes an obligation to make such a call, or to take other similar minimal measures.

Morris at p. ___.

The Supreme Court discussed two other issues in this decision that are relevant to a Bar and Restaurant owner's duty of care to its patrons. First, the Court reconfirmed that the restaurant owner in this case owed a duty of care to plaintiff notwithstanding that he remained in his friend's car in the parking lot outside the restaurant and was not a paying customer. As discussed above, plaintiff in this instance was an invitee or potential customer, and therefore the restaurant owner's duty of care extended to him as well. Second, the Court held in the circumstances of this case that the restaurant owner had sufficient control over the area of the parking lot where the fight first commenced to support the conclusion that its duty of care extended to plaintiff. The factors that the Court relied on to conclude that the restaurant owner's duty of care extended beyond the restaurant's physical structure included:

(1) Apparently customers and invitees regularly used the parking lot when patronizing defendant's restaurant;

(2) Defendant was aware of this use and posted in its windows advertising that could be read from the parking lot;

(3) The area of the parking lot where the altercation and initial stabbing occurred was directly in front of the restaurant's window;

(4) Defendant's lease authorized non-exclusive use of the parking area for customers and invitees with cars; and

(5) A reasonable inference can be drawn that defendant realized a significant commercial benefit from his customers' use of the parking lot.

FACTORS TO BE CONSIDERED IN RISK MANAGEMENT

Based on the Supreme Court decisions discussed above, Bar and Restaurant owners, as well as all business proprietors, should consider the following factors when determining their potential legal liability as a result of criminal acts by third parties:

(1) Their duty of care to act reasonably to protect their customers extends to non-paying customers and potential customers;

(2) Their duty of care to act reasonably to protect their customers may extend beyond the physical structure that the business occupies, and include adjacent areas and parking lots;

(3) Unless it would increase the danger to themselves or other patrons, employees should be trained to call 911 and request police assistance when they observe imminent or ongoing criminal conduct, i.e., they must respond to "unfolding events";

(4) An incident of criminal conduct on the Bar or Restaurant owner's premises that endangers the safety of its patrons mandates that the owner take steps that may include the hiring of security guards to protect the safety of its patrons in the future; and

(5) Knowledge of third party criminal acts at nearby bars or restaurants may require the Bar or Restaurant owner to take additional steps to protect the safety of its customers.

We hope the above helps you in managing and assessing the risk to Bar and Restaurant owners based on the criminal activities of third parties. We are available to discuss these issues with you at any time. If you have any questions concerning the above, or require further advice, do not hesitate to contact Paul Caleo or Dave Wilgus.