In a controversial decision, California Superior Court Judge John S. Einhorn sentenced four friends involved in the death of professional surfer Emery Kauanui to relatively short sentences of between 90 and 349 days. All pleaded guilty to involuntary manslaughter. A fifth individual, Seth Cravens, is awaiting trial. The five men were called the Bird Rock Bandits and alleged by prosecutors to be a gang in LaJolla, California. In the meantime, his mother (shown with the surfer) has sued the Bird Rock Bandits, their parents, and the bar (where the fight began) in a wrongful death action.
On May 23, 2007, Kauanui was at a promotional surf-company event at the bar when he got into a quarrel with Eric House, 21. House was doused with beer and Kauanui was thrown out of the bar. The men continued to trade threats by phone and the five friends drove to Kauanui’s house. According to witnesses, Kauanui came running out of the house and House lost a tooth in the struggle. However, Kauanui was left on the ground and Cravens, 22, is viewed as the ringleader.
The case involved an attempt by the prosecutors to treat the five as a gang under California’s gang laws. Prosecutor Sophia Roach argued that they were a gang called “The Bird Rock Bandits,” but the judge found that they were not organized for the purposes of committing crimes. In the court’s favor, there appeared little evidence of more than a juvenile as opposed to a criminal association.
However, Einhorn’s sentencing statement seemed sharply inconsistent with his actual sentencing. He told the men, “[y]ou don’t have to be a criminal street gang to be a bunch of bullies that together think they’re stronger, tougher, smarter, and can get away with murder.” However, for the family, 90 days seems like that did precisely that.
Cravens has pleaded not guilty to murder and will be tried in October. The prosecution alleges that all of the men joined in the fight, but Cravens was allegedly the main instigator — encouraging House to fight. Cravens is accused of sucker-punching Kauanui in the chin when he got up, causing him to fall back and hit his head on the pavement. He was on life-support and died four days later at a hospital from brain injuries.
Eric House, 21, Orlando Osuna, 23, and Matthew Yanke, 22, pleaded guilty to involuntary manslaughter. Osuna and Yanke also pleaded guilty in June to unrelated counts of misdemeanor battery. Henri “Hank” Hendricks, 22, pleaded guilty to being an accessory to the death and to an unrelated misdemeanor battery.
Osuna received 349 days in San Diego County jail, House and Yanke each got 210 days and Hendricks got 90 days. Each received credit for time served and were given three years probation. The prosecutor wants over four years to Osuma, up to four years for House, over three years for Yanke and at least one year for Hendricks.
These are admittedly tough cases where a fight escalates in this way. The judge may have viewed this as a standard fight that resulted in an unexpected death. However, it seems like more than one of the men were involved in the fight with the victim and the friends are portrayed as affluent thugs.
The tort action by Cindy Kauanui could raise some interesting questions. The parents are accused with “parental negligence” though the friends appear to have been at or near the age of majority — though under age for drinking. Moreover, the causal connection with the bar seems tenuous at best. Kauanui appears to have been a willing participant in the fight, though more facts may emerge from discovery. Bars can be liable under dram shop theories to third parties and will occasionally be held liable for negligence in the handling of fights. This includes some cases where bars kick out individuals to face an awaiting gang. The key in this case against La Jolla Brewhouse is that it allegedly served the men despite their being underage — contributing to the fight.
However, this case involves the men seeking each other out for a fight some distance from the bar. The mother’s attorneys will have their work cut out for them to hold the bar liable. The young men would be a different story obviously. Having pleaded guilty to manslaughter, they can hardly testify that they were purely victims without facing a scathing rebuttal.
Interestingly, Ms. Kauanui was herself sued in civil court recently. http://www.leagle.com/xmlResult.aspx?xmldoc=In%20CACO%2020120307030.xml&docbase=CSLWAR3-2007-CURR
What ever happened to the Wrongful Death Suit filed by Ms. Kauanui?
If they were the bird street banditos, they would have been considered a gang
http://www.latimes.com/news/local/la-me-surfer19-2008nov19,0,4252904.story
San Diego jury finds man guilty of surfer’s murder
Sean Masterson / For The Times
Seth Cravens, shown at a bail hearing in September 2007, was convicted today of second-degree murder.
The Associated Press
12:34 PM PST, November 18, 2008
we like the way in which you presented the facts
it was not a gang fight, but two young men fighting over a girl
i feel that ” the tragedy” was that two young men fought over Genny Grosso at the bar, where Eric House was doused in beer by Emery who then invited Eric House ” to come and fight” the others went along for the ride and Emery came out of his condo took off his shirt and beat Eric House to a pulp, he then argued with Seth Cravn who punched him, Emery fell backward and broke his skull, no one jumped him, no one ganged up on him, his body bore no marks of blows of any kind ( autopsy)
A tragedy for all as some of these kids had no past of violence but Emery did and was on parole ; Osuna and Craven also had a past
End of story
Are you asking? In the case of employees drinking on the job – maybe.
When I was a CGL claims manager, one of our underwriters placed a collection of Bar/Restaruant LL risks in NJ and PA for a broker who presented them as having negligible loss history.
Right.
I had three horrific death cases from car accidents within the first month!
Patty C:
There still remains the problem of causation and foreseeability. Dram shop cases usually involve drunk driving or alcohol-caused medical problems. Getting into a fight thirty minutes and some distance after leaving the bar makes this an interesting case. Would a burglary or a property vandalization be included in foreseeable acts against the bar? I can see the arguments on the other side, but the bar has the advantage in starting out, even with a negligence per se instruction.
JT
I don’t think there was that much time or distance involved.
Unless I am reading wrong, they got kicked out at 1am and the attack happened at 1:30am. In the time intervening the girlfriend dropped the boyfriend off, jogged back to the bar, got her own car, overheard threatening conversation, and then drove back to his family’s home to witness the attack as it was occurring.
I’m betting the bar is on the hook, at least partially, if for no other reason than for serving minors and/or continuing to serve these intoxicated patrons.
Whether there is liquor liability insurance coverage is another question altogether.
I also wonder if the pro-surf organization purchases Event coverage separately and/or if they simply verify that a facility has coverage where alcohol will be served.
Rafflaw:
Very interesting case. Much appreciated. I expect this new case will answer your question as to the effect of time and distance on such a claim.
JT
I handled a dram shop case(civil PI) years ago with a Chicago bar that allowed a large group of friends(5-6) get drunk and when they came out of the bar they started beating up one guy in the parking lot. My client and a friend came out of a house across the street and came to the “rescue” of the individual in the parking lot. The drunk group then chased my client across the street and proceeded to beat him with a hockey stick or a baseball bat. Now the distance wasn’t an issue, but there was some time involved and my guy could have run into the house, but tried to stand his ground. We won a pretty good settlement from the bar owners under the dram shop statute, but I always wondered what a jury would have said about my guy not trying to disengage until it was too late.