Ann M. v. Pacific Plaza Shopping Center

MOSK, J.

I dissent.

The “prior similar incidents” test was thoroughly analyzed in Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112 [ 211 Cal.Rptr. 356 , 695 P.2d 653 , A.L.R.4th 1747], and .this court held it to be improper. The opinion by Chief Justice Bird was unanimous, with then-associate Justice Lucas and me concurring completely in the rationale and result.

Now the majority purport to deal with Isaacs by “refinement” and a “revisit,” while they in effect revive the rejected “prior similar incidents” *681 test. Indeed, they “conclude that the requisite degree of foreseeability rarely, if ever, can be proven in the absence of prior similar incidents of violent crime on the landowner’s premises.” (Maj. opn., ante, p. 679, italics added.)

The Isaacs decision should be controlling in the instant case, the bottom line being that the issue of liability and what the majority gratuitously describe as “an unfair burden upon landlords” are factual matters that should be decided by a jury, not by summary judgment. I quote at length from the Isaacs opinion (38 Cal.3d at pp. 125-127):

“This rule [requiring prior similar incidents] is fatally flawed in numerous respects. First, the rule leads to results which are contrary to public policy. The rule has the effect of discouraging landowners from taking adequate measures to protect premises which they know are dangerous. This result contravenes the policy of preventing future harm. Moreover, under the rule, the first victim always loses, while subsequent victims are permitted recovery. Such a result is not only unfair, but is inimical to the important policy of compensating injured parties [citation]. Surely, a landowner should not get one free assault before he can be held liable for criminal acts which occur on his property.

“Second, a rule which limits evidence of foreseeability to prior similar criminal acts leads to arbitrary results and distinctions. [Citation.] Under this rule, there is uncertainty as to how ‘similar’ the prior incidents must be to satisfy the rule. The rule raises a number of other troubling questions. For example, how close in time do the prior incidents have to be? How near in location must they be? The rule invites different courts to enunciate different standards of foreseeability based on their resolution of these questions.

“Third, the rule erroneously equates foreseeability of a particular act. with previous occurrences of similar acts. This court has already rejected that notion. ‘ “The mere fact that a particular kind of an accident has not happened before does not. . . show that such accident is one which might not reasonably have been anticipated.” [Citation.] Thus, the fortuitous absence of prior injury does not justify relieving defendant from responsibility for the foreseeable consequences of its acts.’ (Weirum v. RKO General, Inc. [(1975)] 15 Cal.3d [40,] 47 [ 123 Cal.Rptr. 468 , 539 P.2d 36 ].)

“Finally, the ‘prior similar incidents’ rule improperly removes too many cases from the jury’s consideration. It is well established that foreseeability is ordinarily a question of fact. (Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 *682 Cal.3d 49, 56 [ 192 Cal.Rptr. 857 , 665 P.2d 947 ]; Weirum v. RKO General, Inc., supra, 15 Cal.3d at p. 46 .) ‘It may be decided as a question of law only if, “under the undisputed facts there is no room for a reasonable difference of opinion.” [Citations.]’ (Bigbee v. Pacific Tel. & Tel. Co., supra, 34 Cal.3d at p. 56 .)

“There is a general reluctance to remove foreseeability questions from the jury. [Citation.] Foreseeability ‘ “is not to be measured by what is more probable than not, but includes whatever is likely enough in the setting of modem life that a reasonably thoughtful [person] would take account of it in guiding practical conduct.” [Citation.] One may be held accountable for creating even “ ‘the risk of a slight possibility of injury if a reasonably prudent [person] would not do so.”” (Bigbee v. Pacific Tel. & Tel. Co., supra, 34 Cal.3d at p. 57 .)

“Thus, foreseeability is determined in light of all the circumstances and not by a rigid application of a mechanical ‘prior similars’ rule. (Cf. Bigbee v. Pacific Tel. & Tel. Co., supra, 34 Cal.3d at pp. 57-58.) As this court has held, ‘what is required to be foreseeable is the general character of the event or harm . . . not its precise nature or manner of occurrence.’ (Ibid.) Prior similar incidents are helpful to determine foreseeability but they are not necessary. A rule that limits evidence of foreseeability to prior similar incidents deprives the jury of its role in determining that question.

“A number of Courts of Appeal have properly recognized that evidence of prior similar incidents is not the sine qua non of a finding of foreseeability. (Kwaitkowski v. Superior Trading Co. (1981) 123 Cal.App.3d 324 , 329 . . . ; Gomez v. Ticor, supra, 145 Cal.App.3d 622, 630 ; see also Cohen v. Southland Corp., supra, 157 Cal.App.3d 130, 140-142 .) These cases express the better view.”

The Isaacs court concluded ( 38 Cal.3d at p. 135 ):

“Foreseeability of harm should ordinarily be determined by a jury. That determination calls for the consideration of what is reasonable in light of all the circumstances. One such circumstance is whether the occurrence of prior similar incidents placed the defendant on notice that its security measures were not adequate to prevent harm to persons who use the defendant’s premises. While prior similar incidents are helpful to determine foreseeability, they are not required to establish it. Other circumstances may also place the landowner on notice of a dangerous condition. A rule which limits proof *683 of foreseeability to evidence of prior similar incidents automatically precludes recovery to first-injured victims. Such a rule is inherently unfair and contrary to public policy.”

For the foregoing reasons I must dissent from the majority opinion that in effect resurrects an improper test discarded by this court eight years ago.