A Picture Is Worth 1000 Words And The Granting Of A Motion For Summary Judgment

October 10, 2022

Ericksen Arbuthnot’s Silicon Valley Office, prevailed on a Motion for Summary Judgment in a wrongful death case on behalf of Landmark Event Staffing, Inc., the company contracted by the Forty Niner Stadium Management Company to provide security at 49er games.  The case arose out of the beating of a fan in the Levi’s Stadium Parking lot after the October 7, 2018, 49er game.  It involved the standard issues raised in cases against security companies and landowners blamed for third-party criminal conduct, and the analysis set forth in Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, and its progenies.  However, the lynch pin of the motion was Landmark’s reliance on Evidence Code ?? 175225, 1552 and 1553 and its embedding of a security camera video and time-stamped photos of the incident in its moving papers, which allowed the Court to see that time estimates by witnesses deposed two years after an event, were incorrect, and thus insufficient to create a triable issue of fact.

The attack on the decedent occurred in a span of eleven seconds, from the time that a cheerfully intoxicated Nate Stokes obliviously kicked an empty glass bottle on the parking lot ground that hit defendant David Gonzales’ vehicle.  In response, Gonzales delivered two quick punches to Stokes’ head, causing Stokes to fall, and hit his head on the concrete, sustaining a serious brain injury.  Tragically, 2 ½ years later, Stokes passed away after an asthma attack.  Plaintiffs contended Stokes’ 2018 brain injury proximately caused his inability to survive the 2021 asthma attack. 

A significant amount of evidence was submitted under a protective order relating to the confidential security measures taken by the 49ers, Landmark, and municipal agencies at every 49er game, making Plaintiffs and their expert in sports facility safety, hard pressed to argue that the security plan was insufficient.  Instead, Plaintiffs argued that Landmarks’ negligence was in its failure to execute the security plan.  They relied on witness deposition testimony that it took 10-15 minutes before security arrived after the incident to support their claim that Landmark officers were not in the parking lot near where the incident occurred as the security plan required.  Landmark rebutted Plaintiffs’ theory using time-stamped photos from the Stadium security cameras which proved that witness testimony two years after the event was unreliable and incorrect.

Plaintiffs argued the photos were hearsay.  Landmark overcame this objection by relying on Calif. Evid. Code Sections 1552 and 1553, which create a presumption of authenticity for the computer information and digital images that the printed versions purport to represent.  Landmark also relied on Evidence Code Sections 175 and 225, to establish that the time stamps on the photos are not hearsay because the camera’s computer-generated photographs and video are not statements of a person.

Laura Malkofsky is a Partner in the Firm’s San Francisco/Silicon Valley office.  She can be contacted at (408) 286-0880 or lmalkofsky@ericksenarbuthnot.com.