Petition for Writ of Certiorari — Sharon P. v. Arman, Ltd.
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Supreme Court, U.S.
rie Dp -
(V)
991659 MAR 15 2000
No. OFFICE OF THE CLERK
In The
Supreme Court of the United States
¢
SHARON P.,
Petitioner,
v.
ARMAN, LTD., et al.,
Respondents.
On Petition For Writ Of Certiorari
To The California Supreme Court
¢
PETITION FOR WRIT OF CERTIORARI
¢
Peter B. O’BrIEN
Counsel of Record
Ketrty L. DUENCKEL
Law Orrices OF Peter B. O'BRIEN
6767 Forest Lawn Drive, Suite 315
Los Angeles, California 90068-1027
(323) 851-5352 telephone
(323) 851-4797 facsimile
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
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GO moo RORY RET NET He
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QUESTION PRESENTED
Sharon P. was sexually assaulted in the underground
parking structure of the commercial building where she
was a tenant. She was the first victim of a sexual assault
although there was evidence of other criminal activity
including 7 prior bank robberies one floor up. The under-
ground parking structure was dirty, dark and unkempt
and represented a place where those bent on criminal
enterprise could lie in wait. Criminal enterprise in such a
setting was reasonably foreseeable. The simplest of secu-
rity measures were not followed. No employee from
either the landowner or parking company, located on the
public lot at street level, was stationed in the under-
ground tenant garage nor required to make periodic
walk-throughs. Security cameras were in place above the
elevators but were unplugged and inoperable. The build-
ing was a commercial highrise.
The trial court granted summary judgment ruling
that no duty ran to the victim because there were no prior
similar incidents in the underground parking garage to
provide notice to the landowner or parking lot operator.
The California Court of Appeal, Second Appellate Dis-
trict, reversed ruling that prior similar incidents were just
one factor to be considered and that the totality of cir-
cumstances must be reviewed by a trier of fact. The
California Supreme Court reversed and upheld the lower
court’s ruling essentially denying legal recourse to the
first victim.
Does the “prior similar incidents” rule enunciated by
the California Supreme Court in which they conclude that
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QUESTION PRESENTED - Continued
no duty runs to the first person injured on property by a
third-party violate the due process and equal protection
clauses of the Fourteenth Amendment?
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iii
PARTIES TO THE PROCEEDING
AT THE CALIFORNIA SUPREME COURT
Plaintiff and Appellant, Sharon P.
Defendant and Respondent, Arman, Ltd., a California
Corporation.
Defendant and Respondent, Apcoa, Inc. d/b/a Parking
Services, Inc., a Delaware Corporation.
RULE 29.6 STATEMENT
Parent and Subsidiary Corporations: None
iv
TABLE OF CONTENTS
Page
CPRFeE LAT W OUMIIRT GR ok. ooo Kd ee eaeke ede as eee i
LIST OF PARTIES AND RULE 29.6 STATEMENT... iii
PETITION FOR WRIT OF CERTIORARI............ 1
Ce: IEE 685 06 Kad pce ode Rhea ewe eea eke 1
UN ic REL ECR Os Ne SEEAREDESENNAS EREERAA ADO 1
STATUTES INVOLVED IN THIS CASE............. 1
et p et Be. ee errr rrr rrr ere 3
REASONS FOR GRANTING THE WRIT ........... 3
I. California’s “Prior Similar Incidents” Rule
Denies The First Victim Due Process And Equal
Protection Under Tit LOW... cs ccncccckecwecnas 3
II. The Decision Below Conflicts With Decisions Of
Other Courts Of Last Resort Concerning The
Constitutionality Of Denying The First Victim
RE TENCE 6.5 ic ch cas icae sea nsees lastebes 5
CA IT 5 od wee a dh ewnns ceedaa ne eanweseenccuees 8
ME is A App. 1
TABLE OF AUTHORITIES
CASES
Clohesy v. Food Circus Supermarkets, Inc., 149 N.J.
ht. gs rere errererr re rrr rye key
Czerwinski v. Sunrise Point Condominium, 540 So.
2d 199 (Fla.Dist.Ct.App. 1989) ............-+-.
Doud v. Las Vegas Hilton Corp., 109 Nev. 1096
‘Lig, POPPER ET eter rT ee ee
Erickson v. Curtis Inv. Co., 432 N.W.2d 199
(Minn.Ct.App. 1988), aff'd, 447 N.W.2d 165
(Minm. 1989)........ccscsccsecccssescesasancess
Forster v. Winston-Salem Joint Venture, 303 N.C. 636
Lh || ee ereererr errr ren ror ieee.
Gaines v. Canada, 305 U.S. 337 (1938)............
Glona v. American Guarantee Co., 391 U.S. 73 (1968)
Killebrew v. Sun Trust Banks, Inc., 221 Ga.App. 679
| errr rr rr rryre ty rrr errr er re
Krier v. Safeway Stores 46, Inc., 943 P.2d 405 (1997)
McClung v. Delta Square Ltd. Partnership, 937
S.W.2d 891 (Tenn. 1996) ........--- eee e ee eee
Morgan v. Bucks Assocs., 428 F.Supp. 546 (E.D.Pa.
| PTET PPP eT ee Ter tyr eT
Purdy & Fitzpatrick v. State of California, 71 Cal.2d
SOG CUDGOE gaan Wiebe ba nec cena denseddennasaeans
Reed v. Reed, 404 U.S. 71 (1971) .........--- eee:
Shelley v. Kramer, 334 U.S. 1 (ere ere es
Small v. McKennan Hosp., 403 N.W.2d 410 (S.D.
vi 7
TABLE OF AUTHORITIES - Continued
Page
Weber v. Aetna Casualty & Surety Co., 406 U.S. 164
CROPER cc es nncsdunssecnesss42s04s0en eee 5
Willie v. American Cas. Co., 547 So.2d 1075
CLALCAGD. TOG. ioc cenvccctseseccseeuevaateeren 6
Statutes AND RULES
Fourteenth Amendment. ........0ccscccccccccees | ie Ae
ae USA... @ Tee 6se ksacuvikccnsieaeie eee 1
California Constitution :
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California Civil Code § 1714, subd. (a)............... 2
PETITION FOR WRIT OF CERTIORARI
Sharon P. respectfully prays that a writ of certiorari
issue to review the judgment and opinion of the Califor-
nia Supreme Court entered in this proceeding on Decem-
ber 16, 1999, in order to resolve the conflict between
California and various other jurisdictions.
¢
OPINIONS BELOW
The published opinion of the California Supreme
Court that gives rise to this petition is reprinted in the
Appendix hereto at App. 1. The depublished opinion of
the California Court of Appeal, Second Appellate District,
is reprinted hereto at App. 44.
o
JURISDICTION
On December 16, 1999 the California Supreme Court
issued a published opinion reversing the Court of
Appeal, Second Appellate District opinion in favor of the
petitioner.
The jurisdiction of the Court is invoked pursuant to
28 U.S.C. § 1257.
é
Vv
STATUTES INVOLVED IN THIS CASE
The Fourteenth Amendment to the United States
Constitution provides that no state shall “deprive any
person of life, liberty, or property, without due process of
law.” The California Constitution also contains due pro-
cess guarantees. (Article I, §§ 7, 15).
The Fourteenth Amendment provides that no state
shall “deny to any person within its jurisdiction the equal
protection of the laws.” Again, the California Constitu-
tion also contains equal protection guarantees. (Article I,
§ 7(a)). Additionally, the California Constitution goes fur-
ther than the federal Constitution by requiring uniform
operation of general laws (Article IV, § 16(a)).
Further, the California legislature has mandated that
landowners maintain land in their possession and control
in a reasonably safe condition. California Civil Code
§ 1714, subd. (a) provides:
“Every one is responsible, not only for the result
of his willful acts, but also for an injury occa-
sioned to another by his want of ordinary care
or skill in the management of his property or
person, except so far as the latter has, willfully
or by want of ordinary care, brought the injury ~
upon himself. The extent of liability in such
cases is defined by the Title on Compensatory
Relief.”
The decision by the California Supreme Court in
Sharon P. (App. 1) essentially takes away the rights and
protections afforded by the California legislators, the Cal-
ifornia Constitution and the United States Constitution to
the first victim of crime.
STATEMENT OF THE CASE
The California Supreme Court has determined that a
landowner and/or operator owes no duty to the first
victim of third party criminal behavior concluding that
the duty to protect against such potential harm does not
arise until the landowner and/or operator has notice by
“prior similar incidents.” The effect is to always deny the
first person injured any legal recourse.
¢
REASONS FOR GRANTING THE WRIT
I. California’s “Prior Similar Incidents” Rule Denies
The First Victim Due Process And Equal Protection
Under The Law.
This Court has never addressed the overarching issue
raised by the “prior similar incidents” rule in premises
liability cases, to wit, why is the first victim always
without legal right when all who follow thereafter are
protected by the law. The denial of a right to seek dam-
ages for harm simply because one is the first victim is a
fundamental denial of equal protection and due process;
what interest is so valuable as to deny the first victim the
rights and protections afforded all other citizens.
The classification of that group of citizens as the
“first victims” so as to deny them access to the courts and
their claims to damages is arbitrary and capricious and
serves no legitimate state purpose. Moreover, it is
invidious discrimination against a group of citizens who
should otherwise enjoy the same rights all citizens do.
The simple fact is that irrespective of what theory is
advanced in support of a rule that precludes the first
victim from reaching a jury of her peers, a denial of a
right to redress available to all others, bears no rational
relationship to any state purpose. It is patently unreason-
able to eliminate an entire class of persons on the sole
ground that they were the first persons injured. It irra-
tionally singles out one class of individuals for discrimi-
natory treatment.
Admittedly, the California Supreme Court’s judg-
ment herein is the enforcement of a common law action
as between private parties, but the judicial action in this
private litigation is, in the Petitioner’s view, a denial of
equal protection. And this Court has jurisdiction. Shelley
v. Kramer, 334 U.S. 1 (1948). The rights created by the first
section of the Fourteenth Amendment are, by its terms,
guaranteed to the individual. The rights established are
personal rights. Shelley v. Kramer, 334 U.S. 1, 22.
There is no constitutionally permissible reason to
define a duty such that it imposes a burden the first
victim can never meet. Indeed, to expose all first time
victims to the greater risk of uncompensated injury than
is faced by other individuals is clearly unreasonable.
The “prior similar incidents” rule creates an open
season on the first victims and gives a windfall to the
tortfeasors. This Court has held such consequences to be
unconstitutional. Glona v. American Guarantee Co., 391 U.S.
73 (1968).
Visiting a denial of rights on the head of a business
invitee is illogical and unjust and contrary to the basic
concept that legal burdens should bear some relationship
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to individual responsibility or wrongdoing. Weber v.
Aetna Casualty & Surety Co., 406 U.S. 164 (1972) [para-
phrasing the reasoning].
That being said, this Court has indicated that the
primary concern of the equal protection clause is that
“persons similarly situated with respect to the legitimate -
purpose of the law receive like treatment.” Reed v. Reed,
404 U.S. 71, 75-76 (1971); Purdy & Fitzpatrick v. State of
California, 71 Cal.2d 566, 578 (1969). A single person, such
as Sharon P., may invoke the constitutional protection on
a showing of unequal treatment. Gaines v. Canada, 305
U.S. 337 (1938).
In Sharon P. v. Arman, Ltd., Justice J. Werdegar, in her
concurring and dissenting opinion, states as follows:
“Emphatically, a landlord is not, as the prior similar
incidents rule would have it, entitled to one free assault
before the failure to take appropriate security measures
subjects him or her to the risk of civil liability.” (App. 30).
Alas, one free assault is exactly what the decision of the
majority determines, all to the end that people otherwise
entitled to access to the court for redress of grievances are
denied any relief simply because of their unfortunate
timing; being first denies them access to a jury of their
peers.
II. The Decision Below Conflicts With Decisions Of
Other Courts Of Last Resort Concerning The Con-
stitutionality Of Denying The First Victim Legal
Recourse.
The “prior similar incidents” rule has been criticized
on several grounds by other jurisdictions, most notably
because it contravenes public policy and notions of fair-
ness by allowing one “free” crime in all instances, thus
providing no incentive to take preventative measures
until the first victim is denied recovery. Krier v. Safeway
Stores 46, Inc., 943 P.2d 405, 414 (1997). Another criticism
of the “prior similar incidents” rule is conflicting deter-
minations regarding the requisite “similarity” of a pre-
vious incident. Courts have disagreed on whether the
prior incident must involve personal injury, the relevant
proximity in time of the prior incident and the necessary
proximity in location. Krier v. Safeway Stores 46, Inc., 943
P.2d at 414 (1997).
Jurisdictions that have rejected the “prior similar
incidents” rule have recognized the harshness imposed
by such an artificial rule and have adopted other
approaches. Many courts have adopted the “totality of
circumstances” test which allows the court to consider all
of the surrounding circumstances, including the nature of
the business and its location as well as prior similar
incidents. Jurisdictions that have adopted this rule
include: Pennsylvania [Morgan v. Bucks Assocs., 428
F.Supp. 546 (E.D.Pa. 1977)], Florida [Czerwinski v. Sunrise
Point Condominium, 540 So. 2d 199 (Fla.Dist.Ct.App.
1989)], Louisiana [Willie v. American Cas. Co., 547 So.2d
1075 (La.Ct.App. 1989)], Minnesota [Erickson v. Curtis Inv.
Co., 432 N.W.2d 199 (Minn.Ct.App. 1988), aff’d, 447
N.W.2d 165 (Minn. 1989)], Nevada [Doud v. Las Vegas
Hilton Corp., 109 Nev. 1096 (1993)], North Carolina [Fors-
ter v. Winston-Salem Joint Venture, 303 N.C. 636 (1981)],
South Dakota [Small v. McKennan Hosp., 403 N.W.2d 410
(S.D. 1987)], Georgia [Killebrew v. Sun Trust Banks, Inc.,
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221 Ga.App. 679 (1996)], and New Jersey [Clohesy v. Food
Circus Supermarkets, Inc., 149 N.J. 496 (1997)].
Courts that have adopted the “totality of circum-
stances” rule generally do not distinguish between crimes
against property and crimes against persons, recognizing
that property crimes can easily escalate to violent crimes.
These jurisdictions that apply the “totality of circum-
stances” rule consider all prior criminal incidents occur-
ring on the landowner’s premises and adjacent
properties, whether similar or not, as well as other types
of evidence such as the nature, location, condition, and
the architectural design of the landowner’s property.
Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 509
(1997).
Yet other jurisdictions, in rejecting the “prior similar
incidents” rule, have adopted a modified totality of cir-
cumstances rule that has been called “a balancing
approach.” McClung v. Delta Square Ltd. Partnership, 937
S.W.2d 891, 901 (Tenn. 1996). “The balancing approach
acknowledges that duty is a flexible concept, and seeks to
balance the degree of foreseeability of harm against the
burden of the duty to be imposed.” McClung v. Delta
Square Ltd. Partnership, 937 S.W.2d 891, 901 (Tenn. 1996).
a
CONCLUSION
For the foregoing reasons, this petition for writ of
certiorari should be granted.
Respectfully submitted,
Peter B. O’BrIEN
Counsel of Record
Ketty L. DUENCKEL
Law Orrices oF Peter B. O’BrIEN
6767 Forest Lawn Drive, Suite 315
Los Angeles, California 90068-1027
(323) 851-5352 telephone
(323) 851-4797 facsimile
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App. 1
COPY
IN THE SUPREME COURT OF CALIFORNIA
SHARON P., S063612
Plaintiff and Ct. App. 2/3 B094739
ee. Los Angeles County
v. Super. Ct. No. SC029060
ARMAN, LTD., et al., (Filed Dec. 16, 1999)
Defendants and
Respondents.
ee
In Ann M. v. Pacific Plaza Shopping Center (1993) 6
Cal.4th 666 (Ann M.), we discussed the scope of a com-
mercial landlord’s duty of care and affirmed it includes
the taking of “reasonable steps to secure common areas
against foreseeable criminal acts of third parties that are
likely to occur in the absence of such precautionary mea-
sures.” (6 Cal.4th at p. 674.)
In this case, an unknown assailant sexually assaulted
plaintiff at gunpoint in a commercial parking garage
owned and operated by defendants. We must decide
whether and to what extent defendants’ duty of care to
their tenants required that they provide security in the
garage, when no assaults had occurred on the premises
during the 10 years preceding the attack upon plaintiff.
We conclude that the occurrence of a violent third party
sexual assault in the subject garage was not sufficiently
foreseeable to support such a requirement. We therefore
reverse the contrary judgment of the Court of Appeal and
App. 2
remand the matter to that court with directions to enter
judgment in favor of defendants.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Sharon P. conducted an accounting business
in a Los Angeles office building. She paid a monthly fee
to park in an assigned space in the underground parking
garage reserved for tenants of the office building.
On Thursday, April 8, 1993, at approximately 11:00
a.m., plaintiff parked in her assigned space. As she was
preparing to leave her car, a masked assailant came up
from behind. He held a gun to her head, forced her back
into her car, and sexually assaulted her.
Plaintiff sued defendant Arman, Ltd. (Arman), the
owner of the premises, and defendant Apcoa, Inc., doing
business as Parking Services, Inc. (Apcoa), which pro-
vided parking services for Arman. The complaint alleged,
among other things, that defendants’ failure to provide
adequate security for users of the parking garage resulted
in the attack upon plaintiff. Plaintiff sought compensa-
tory damages for pain and suffering, severe emotional
distress, medical expenses and loss of income.
Following discovery, defendants moved for summary
judgment on the basis that neither of them owed a duty
to plaintiff to make the garage more secure because the
attack on her was not reasonably foreseeable. The follow-
ing evidence was submitted in support of and in opposi-
tion to defendants’ motion. S
Arman purchased the office building and parking
garage in 1982. There is a bank on the ground floor of the
App. 3
building, with its entrance facing southwest. To the north
of the building is a surface parking lot for building visi-
tors. A driveway on the east side of the building leads to
a one-level subterranean parking garage reserved for
building tenants. The tenant garage is approximately 200
feet by 225 feet and contains 79 marked parking stalls.
Apcoa’s parking attendant operates from a booth at the
northwest corner of the visitors’ lot, several hundred feet
from the driveway entrance to the tenant garage.
Zacaria Simantob, a general partner of Arman, was
responsible for daily management of the building. He
knew of no incident, from 1982 to April 8, 1993, in which
anyone was physically assaulted on the premises or was
confronted with a firearm in the tenant garage. He was
informed that armed robberies had occurred at the bank
on the ground floor but, to his knowledge, none had
involved criminal activity in the garage or personal
injury. The bank’s internal records show it had been
robbed seven times between February 1991 and January
1993, with one report of physical injury.
Records of the Los Angeles Police Department reflect
that a total of 363 crimes, including 2 rapes, occurred in
the 50 square blocks surrounding the office building for
all of 1992. During the first quarter of 1993, just prior to
plaintiff’s assault, 72 crimes, but no rapes, were recorded.
Plaintiff submitted a declaration claiming that the
overall condition of the tenant-garage had deteriorated
during the several months preceding her attack. It was
not unusual for several lights to be out, which would
leave the garage darkened in several places. On the day
of her attack, the garage “had several darkened areas that
App. 4
provided vantage points from which someone lying in
wait until after the morning influx of tenants could
observe a lone woman arriving in her car as easy prey.”
Several darkened storage areas provided a place to hide.
Plaintiff smelled urine at various times as she walked to
and from the garage. She never saw defendants’
employees monitor or inspect the garage, and in her
view, the garage was not clean, well lit, safe or secure.
After the attack, she learned that the security camera in
the garage had not been working for several months.!
Defendants submitted a declaration from a private
security consultant, retired Pasadena Police Chief Robert
H. McGowan. McGowan inspected the tenant garage 17
months after plaintiff’s assault and found the lighting
“sufficient to clearly view from one side of the garage to
the other in any direction.” Although he conceded in his
deposition that underground parking facilities are poten-
tial places for criminals to lie in wait, he believed that
posting a security guard would have been an unreason-
able burden on defendants because of the garage’s small
size and its minimal or no criminal activity, the relatively
unobstructed view throughout the garage, and the pres-
ence of drivers entering and leaving. He also thought it
1 Plaintiff’s attorney examined the garage 18 months after
the attack and submitted a declaration substantially similar to
plaintiff’s. Arman filed objections to the declarations of plaintiff
and her counsel in the trial court, but the record contains no
rulings on those objections. We therefore deem the objections
waived and view plaintiff’s evidence as having been admitted
in evidence as part of the record for purposes of the appeal.
(Ann M., supra, 6 Cal.4th at p. 670, fn. 1; Code Civ. Proc., § 437c,
subds. (b), (c).)
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App. 5
would have been unreasonable to require operation of a
closed circuit television and to require someone to moni-
tor and investigate anything that looked suspicious. In
McGowan’s view, the bank robberies on the ground floor
did not indicate any greater likelihood of a sexual assault
crime occurring in the underground garage because the
bank is located on the other end of the structure from the
garage entrance and the “behavior” of a bank robber is to
immediately escape the area, not to lie in wait for a
victim.
The trial court granted the motions based upon the
foreseeability analysis articulated in Ann M., supra, 6
Cal.4th 666. Although noting plaintiff’s evidence of other
crimes occurring in the surrounding area, the court found
it significant that there was no evidence of crimes occur-
ring within the parking garage. Judgment was entered in
favor of defendants.
The Court of Appeal reversed by a divided vote. The
majority determined that Ann M. was not controlling
because commercial parking structures such as the one
here are “inherently dangerous” and, by their very
nature, facilitate the commission of crime and increase its
likelihood. The majority concluded that, notwithstanding
the absence of prior incidents of sexual assault in the
tenant garage, criminal assaults on patrons of the garage
were highly foreseeable as a matter of law given the
inherently dangerous nature of commercial underground
garages, the increasing number of criminal assaults
occurring in such structures generally, the physical condi-
tions existing at this particular garage, and the seven
serious felonies (robberies) occurring at the ground floor
bank during the two-year period preceding plaintiff's
; App. 6
assault. After determining that the assault was foresee-
able, the majority analyzed the policy considerations set
forth in Rowland v. Christian (1968) 69 Cal.2d 108 and
concluded that defendants owed a duty of care to plain-
tiff to provide “reasonable” security in the tenant garage,
which “might or might not include security guards.” The
matter was remanded to allow a jury to determine the
issues of breach and causation based on the totality of the
circumstances presented in the case.
The dissent criticized the majority for finding it fore-
seeable as a matter of law that criminal conduct will
always occur in commercial underground parking struc-
tures. In its view, the majority improperly replaced Ann
M.’s concept of duty based on foreseeability with an
“inherently dangerous” condition theory. That theory, the
dissent argued, would apply to numerous other types of
properties, including residential parking structures, sub-
ways, office building hallways, residential building hall-
ways, and movie theaters, and could be used to broadly
expand the concept of foreseeability for other facilities
such as all-night laundromats, emergency rooms, banks
and college dormitories.
We granted defendants’ petitions for review.
DISCUSSION
To prevail on her action in negligence, plaintiff must
show that defendants owed her a legal duty, that they
breached the duty, and that the breach was a proximate
or legal cause of her injuries. (Ann M., supra, 6 Cal.4th at
p- 673.) Since defendants obtained summary judgment in
their favor, “we review the record de novo to determine
App. 7
whether they have conclusively negated a necessary ele-
ment of the plaintiff’s case or demonstrated that under no
hypothesis is there a material issue of fact that requires
the process of trial.” (Id. at pp. 673-674.)
The existence of a duty is a question of law for the
court. (Kentucky Fried Chicken of Cal., Inc. v. Superior Court
(1997) 14 Cal.4th 814, 819; Ann M., supra, 6 Cal.4th at p.
674.) Likewise, “[floreseeability, when analyzed to deter-
mine the existence or scope of a duty, is a question of law
to be decided by the court.” (Ann M., supra, 6 Cal.4th at p.
678.) The critical issue in this case is whether a sexual
assault by a third party in the tenant garage was suffi-
ciently foreseeable to support a requirement that defen-
dants secure that area against such crime.
Plaintiff offers two principal rationales for affirming
the judgment of the Court of Appeal. First, she contends
that, because underground commercial parking structures
are inherently dangerous, they carry with them a higher
foreseeability of violent criminal attacks with a corre-
sponding obligation to provide more than just minimal
security measures. Although plaintiff claims she “is not
asking for security guards,” she asserts that requiring
security guards “is justified, should the court so find.”
Second, she argues that, even if the hiring of security
guards was not required, the violent attack upon her was
sufficiently foreseeable - due to the inherently dangerous
nature of the parking garage, the prior bank robberies
elsewhere on the premises and the statistical crime rate of
the surrounding area - to impose upon defendants a
minimal duty of protection. In plaintiff’s words,
“[s]imple things like a clean, brightly lit garage, with
working security cameras, and periodic walk throughs
App. 8
[by existing personnel], all give the appearance that
someone cares about this garage and sends a message to
any potential criminal to go elsewhere.”
A. Ann M. and the Hiring of Security Guards
By now it is well established that landowners must
maintain their premises in a reasonably safe condition,
and that in the case of a landlord, the general duty of
maintenance includes “the duty to take reasonable steps
to secure common areas against foreseeable criminal acts of
third parties that are likely to occur in the absence of such
precautionary measures.” (Ann M., supra, 6 Cal.4th at p.
674, italics added.)
To resolve whether the sexual attack upon plaintiff
was sufficiently foreseeable to require the hiring of secu-
rity guards, we consider first Ann M., supra, 6 Cal.4th 666.
In Ann M., the plaintiff was raped while working at a
photo store in a secluded area of the defendants’ shop-
ping center. (6 Cal.4th at pp. 670-671.) In opposition to
the defendants’ motion for summary judgment, the plain-
tiff presented evidence that, in the year preceding the
attack, violent crimes had occurred in the census tract in
which the shopping center was located. (6 Cal.4th at p.
671.) Transients loitering in the common areas had caused
tenants and employees of the shopping center to be con-
cerned about their safety. (Ibid.) There also was evidence
that the defendants failed to provide security patrols
despite a request by the merchants’ association (6 Cal.4th
at p. 672) and that assaults, purse snatchings and bank
robberies may have occurred in the shopping center (6
Cal.4th at p. 671).
App. 9
Emphasizing foreseeability as a “crucial factor” in
determining the existence of duty, Ann M. determined
that “a duty to take affirmative action to control the
wrongful acts of a third party will be imposed only where
such conduct can be reasonably anticipated.”2 (6 Cal.4th
at p. 676.) Ann M. then revisited Isaacs v. Huntington
Memorial Hospital (1985) 38 Cal.3d 112 (Isaacs), which had
abandoned the traditional “prior similar incidents” rule
of foreseeability in favor of an approach that focused on
the “totality of the circumstances.” (Ann M., supra, 6
Cal.4th at pp. 677-678.) In a departure from prior case
law, Isaacs had concluded that foreseeability of harm ordi-
narily should be determined upon consideration of “what
is reasonable in light of all the circumstances” and that
the absence of prior similar incidents of crime did not
negate the existence of a duty. (Isaacs, supra, 38 Cal.3d at
p. 135.) The occurrence of prior similar incidents was
deemed “helpful” to determine foreseeability, but “not
required to establish it.” (Ibid.)
* In addition to foreseeability, other factors considered by
courts in determining the existence and scope of a duty in a
particula. case include “ ‘the degree of certainty that the
plaintiff suffered injury, the closeness of the connection between
the defendant’s conduct and the injury suffered, the moral
blame attached to the defendant’s conduct, the policy of
preventing future harm, the extent of the burden to the
defendant and consequences to the community of imposing a
duty to exercise care with resulting liability for breach, and the
availability, cost, and prevalence of insurance for the risk
involved.’ ” (Ann M., supra, 6 Cal.4th at p. 675, fn. 5, quoting
Rowland v. Christian, supra, 69 Cal.2d at p. 113.) These other
factors may dictate against expanding the scope of a
landowner’s duty to include protecting against third party
crime, even where there is sufficient evidence of foreseeability.
App. 10
As noted in Ann M., lower courts had questioned the
wisdom of Isaacs’ totality of the circumstances approach
and California appeared to be the lone jurisdiction utiliz-
ing such a rule in the business landowner context. (Ann
M., supra, 6 Cal.4th at pp. 677-678.) Ann M. was not
reluctant to revisit Isaacs because viewing the totality of
the circumstances had been unnecessary to the result in
that case. (6 Cal.4th at p. 678.) That is, the foreseeability
factor could have been met in Isaacs under the traditional
rule requiring prior similar incidents. (Ibid.)
In contrast to Isaacs, Ann M. concluded that, in light
of the vagueness of the obligation to provide patrols
adequate to deter crime and the significant monetary and
social costs that are implicated in imposing such an oblig-
ation, a “high degree of foreseeability” is required in
order to find that the scope of a landowner’s duty of care
includes the hiring of security guards to protect against
violent crime by third parties. (6 Cal.4th at p. 679.) Ann
M. cautioned 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.” (Ibid., fn. omitted.) “To hold otherwise,” Ann
M. emphasized, “would be to impose an unfair burden
upon landlords and, in effect, would force landlords to
become the insurers of public safety, contrary to well-
established policy in this state.” (Ibid.)
Applying its analysis to the record, Ann M. deter-
mined that the plaintiff there failed to establish the high
degree of foreseeability necessary to require the posting
of security guards in the common-areas of the shopping
center. (6 Cal.4th at pp. 679-680.) First, there was no
evidence the defendants had notice of the assaults, purse
App. 11
snatchings and bank robberies allegedly occurring on the
premises. Second, even assuming there had been notice,
the plaintiff had conceded that the prior crimes were not
similar in nature to the violent assault she suffered.
Finally, neither the evidence regarding the presence of
transients, nor the evidence of the statistical crime rate of
the surrounding area, was of a type sufficient to establish
the requisite foreseeability. (6 Cal.4th at p. 680.)
If we were to apply the foregoing analysis in the
present case, defendants were not required to provide
security guards in their garage. Significantly, the prior
robberies, which all specifically targeted a bank else-
where on the premises and did not involve violent attacks
against anyone, were not sufficiently similar to the sexual
assault inflicted upon plaintiff to establish a high degree
of foreseeability that would justify the imposition of such
an obligation. (Ann M., supra, 6 Cal.4th at p. 680.) More-
over, the analysis forecloses the possibility that evidence
of the statistical crime rate of the surrounding 50-block
| area, even if considered in combination with the bank
robberies and the evidence that a person or persons uri-
nated and slept in or about the garage prior to the
assault, would be sufficient to establish the requisite fore-
seeability. (Ibid.)
Plaintiff argues that her injury was foreseeable,
_ regardless of the absence of prior violent attacks on the
premises. She relies on a footnote in Ann M. in which we
commented: “Ann M. offered no evidence to show that,
like a parking garage or an all-night convenience store, a
retail store located in a shopping center creates ‘ “an
especial temptation and opportunity for criminal miscon-
duct.” ’ (Gomez v. Ticor [(1983) 145 Cal.App.3d 622, 628]
App. 12
[victim killed returning to car in parking garage]; Cohen v.
Southland Corp. (1984) 157 Cal.App.3d 130, 141] [robbery
at all-night convenience store].) Therefore, we need not
consider in this case whether some types of commercial
property are so inherently dangerous that, even in the
absence of prior similar incidents, providing security
guards will fall within the scope of a landowner’s duty of
care.” (Ann M., supra, 6 Cal.4th at p. 680, fn. 8.) In
addition, plaintiff quotes extensively from Gomez v. Ticor
(1983) 145 Cal.App.3d 622 (Gomez) to argue that violent
crime in an underground commercial parking garage is
highly foreseeable because the very nature of such struc-
tures makes them prone to third party criminal attacks on
their patrons and users.
Upon careful deliberation, we reject the view that
underground parking structures are “so inherently dan-
gerous that, even in the absence of prior similar incidents,
providing security guards will fall within the scope of a
landowner’s duty of care.” (Ann M., supra, 6 Cal.4th at p.
680, fn. 8.) Several considerations factor into our decision.
First, we are not directed to any evidence or authori-
ties from which we might confidently conclude that all
underground parking structures, regardless of their indi-
vidual physical characteristics and locations, are prone to
violence and therefore are inherently dangerous in
nature.* Moreover, a survey of the decisions cited to us by
* The record on appeal contains no statistical data
comparing the crime rate in parking garages with the rates for
other types of properties. In this court, the parties and the
dissent refer to various criminal victimization statistics
published by the United States Department of Justice. As a
App. 13
the parties and amici curiae indicates that above-ground
commercial and residential buildings are just as prone to
violent sex crimes by unknown third parties. (E.g., Ann
M., supra, 6 Cal.4th at p. 671 [mall store]; Frances T. v.
Village Green Owners Assn. (1986) 42 Cal.3d 490, 498 [con-
dominium unit]; Pamela W. v. Millsom (1994) 25
Cal.App.4th 950, 953 [condominium unit]; Riley v. Marcus
(1981) 125 Cal.App.3d 103, 105 [apartment]; Kwaitkowski
v. Superior Trading Co. (1981) 123 Cal.App.3d 324, 325
[apartment lobby]; Wingard v. Safeway Stores, Inc. (1981)
123 Cal.App.3d 37, 39 (commercial warehouse]; 7735 Hol-
lywood Blvd. Venture v. Superior Court (1981) 116
Cal.App.3d 901, 903 [apartment]; O’Hara v. Western Seven
Trees Corp. (1977) 75 Cal.App.3d 798, 802 [apartment].) In
the absence of solid support for the categorical conclu-
sion that all parking garages are inherently dangerous,
and are distinctly so in comparison to other types of
premises, we are reluctant to single out garage owners for
imposition of the substantial monetary and social costs
associated with the hiring of security guards.
Second, Gomez, supra, 145 Cal.App.3d 622, does not
support adoption of a per se rule of foreseeability in cases
involving underground parking structures. The Gomez
court opined that violent crime in a parking garage may
be foreseeable because: (1) cars and car stereos and con-
tents located in such garages present tempting targets for
thieves; (2) the “high walls, low ceilings and the absence
procedural matter, we decline to consider such statistics since a
proper request for judicial notice was never made. In any event,
the conclusions drawn from the statistics are reasonably subject
to dispute.
App. 14
of the cars’ owners” in garages give thieves and vandals
time and privacy to complete their tasks; (3) the
“deserted, labyrinthine nature” of garages, “especially at
night, makes them likely places for robbers and rapists to
lie in wait”; and (4) a garage patron who interrupts such
crimes in progress could be violently attacked by the
criminal. (145 Cal.App.3d at p. 628.) But Gomez did not
hold that the foregoing considerations render violent
crime in parking structures foreseeable as a matter of law,
either in general or in the particular garage at issue.
Unlike the instant case, Gomez involved a garage
patron who was shot when he inadvertently interrupted a
robbery occurring in an underground garage. There was
no indication in Gomez that any crime had been commit-
ted in the garage previously, but there was evidence of at
least 16 acts of theft and vandalism in the building above
the garage. (145 Cal.App.3d at p. 628.) In light of that
evidence, the Gomez court concluded that a jury could
find that acts of theft and vandalism were foreseeable in
the parking structure and that a patron who interrupted
an act of theft or vandalism while returning to a parked
car would be subject to violent attack by the thief or
vandal. (Ibid.) The court found it insignificant that the
patron there had interrupted a robbery, rather than an act
of theft or vandalism, since “the fatal incident fell within
the scope of the alleged foreseeable harm, i.e., attack on a
patron who interrupts a criminal act.” (145 Cal.App.3d at
p- 628, fn. 1.)
To buttress its conclusion regarding foreseeability of
the incident, the Gomez court added: “[I]n its very opera-
tion of a parking structure, defendant may be said to
have created ‘an especial temptation and opportunity for
App. 15
criminal misconduct,’ thus increasing the foreseeability of
the attack. (Prosser, Torts (4th ed.1971) p. 174.) In making
this observation we note the unique nature of a parking
complex, which invites acts of theft and vandalism. In
such structures, numerous tempting targets (car stereos,
car contents, the cars themselves) are displayed for the
thief; high walls, low ceilings and the absence of the cars’
owners allow the thief or vandal to work in privacy and
give him time to complete his task. Such circumstances
increase the likelihood of criminal misconduct. In addi-
tion, the deserted, labyrinthine nature of these structures,
especially at night, makes them likely places for robbers
and rapists to lie in wait. Robbery, rape, and violent
consequences to anyone who interrupts these crimes,
may thus also be foreseeable.” (Gomez, supra, 145
Cal.App.3d at p. 628.) .
As a preliminary matter, we observe Gomez erred in
holding that foreseeability, when analyzed to determine
the existence or scope of a duty, is a question of fact for
the jury. (Compare Gomez, supra, 145 Cal.App.3d at p. 628
with Ann M., supra, 6 Cal.4th at p. 678.) More signifi-
cantly, Gomez, upon close review, fails to persuade us that
rapists and robbers are more likely to lie in wait in
underground parking structures than elsewhere or that
the operation of an underground parking structure cre-
ates “ ‘an especial temptation and opportunity’ ” for sex-
ual assaults and other crimes of a violent nature.* (See
Gomez, supra, 145 Cal.App.3d at p. 628, italics added.)
+ As indicated, Gomez credited Prosser on Torts for the
“especial temptation” phrase. (Gomez, supra, 145 Cal.App.3d at
p. 628, quoting Prosser, Torts (4th ed.1971) p. 174.) The phrase
also appears in the latest edition of Prosser and Keeton on Torts.
App. 16
In Ann M., we acknowledged the unfortunate circum-
stance that “[i]t is difficult, if not impossible, to envision
any locale open to the public where the occurrence of
violent crime seems improbable.” (Ann M., supra, 6
Cal.4th at p. 678.) Not only is random, violent crime
“endemic in today’s society” (Ibid.), but one can easily
think of a host of locations and businesses that, for one
reason or another, present attractive opportunities to the
criminal element of society. As one commentator has
observed: “Because all businesses attract crime to some
extent, they could all be characterized as ‘inherently dan-
gerous.’ At various times, courts have described parking
facilities, all-night laundromats, emergency room facili-
ties, banks, and college dormitories as being facilities that
attract crime. The mere fact that a crime has occurred
almost always allows one to draw the conclusion, after
the fact, that the premises were inherently dangerous.
(Prosser & Keeton, Torts (Sth ed.1984) § 33, p. 201.) Neither
treatise posits that certain types of premises create an especial
temptation and opportunity for criminal misconduct, but the
more recent treatise cites two cases in which the particular
conduct of the defendant did so. (Id. at p. 201, fn. 86.) One
involved a vehicular death caused by an intoxicated driver after
the police had detained the driver but then negligently
permitted him to remain in his car with the keys in the ignition.
(Green v. City of Livermore (1981) 117 Cal.App.3d 82.) The other
involved deaths from a bomb made by thieves with dynamite
that the defendant had negligently stored. (Bridges v. Kentucky
Stone Co., Inc. (Ind.Ct.App.) 408 N.E.2d 575, vacated (Ind.1981)
425 N.E.2d 125.) Of those few cases involving parking lots or
garages that are cited in the discussions accompanying the
“especial temptation” phrase, none holds that such premises are
inherently dangerous.
App. 17
Moreover, any duty premised on the idea that the busi-
ness attracts crime ignores the fact that many such busi-
nesses are economically viable precisely because they do
not require any on-site labor. Once proprietors are forced
to provide security guards at all-night laundromats or at
bank teller machines, those operations cease to become
profitable. It serves no one to impose a duty which,
rather than protecting customers, forces the businesses
which they frequent to close.” (Kaufman, When Crime
Pays: Business Landlords’ Duty to Protect Customers from
Criminal Acts Committed on the Premises (1990) 31 S. Tex.
L.Rev. 89, 112-113, fns. omitted.) Were we to find that the
occurrence of violent crime in commercial underground
parking structures is highly foreseeable as a matter of
law, we would be opening the door to virtually limitless
litigation over what other types of property could also be
characterized as “inherently dangerous.”
Moreover, while Gomez recognized that violent crime
might be foreseeable in underground parking structures,
it implicitly rejected the notion that such structures are so
inherently dangerous that security guards are required to
safeguard their users. Indeed, the Gomez court held that,
at most, the garage owner there would have been
required to take what it viewed as “minimal precautions”
against crime, i.e., maintaining operational security moni-
tors and intercoms. (Gomez, supra, 145 Cal.App.3d at pp.
632-633.)
Finally, adoption of the view that violent crime in
underground parking structures is highly foreseeable as a
matter of law would lead to incongruous results. In the
present case, for instance, the record reflects that the
underground tenant garage had no reported incidents of
App. 18
crime for 10 years prior to the assault upon plaintiff. The
only evidence of prior criminal acts on the premises
consisted of the seven bank robberies on the street level
of the office building located above the parking structure.
As already discussed, application of Ann M.'s analysis to
this record leads to the conclusion that defendants’ duty
of care did not include the hiring of security guards for
the garage because the bank robberies were not suffi-
ciently similar to the sexual assault crime to establish a
high degree of foreseeability. Nor would such a duty be
found if the assault on plaintiff had occurred in other
areas of the office building instead of the garage (e.g., ina
common hallway or at plaintiff’s place of business).
Yet, under the rule advocated by plaintiff, defendants
would be saddled with the significant burden of hiring
security guards to patrol the underground garage simply
because it is an underground garage, without regard to
the dissimilarity of the prior criminal incidents elsewhere
on the premises or to the garage’s 10-year history of
crime-free existence. Indeed, such a rule would burden
virtually all owners of underground commercial garages
in contravention of settled state policy that they, as land-
lords, should not be forced to become the insurers of
public safety. (See Ann M., supra, 6 Cal.4th at p. 679.)
B. Other Security Measures
In Ann M., we reaffirmed our commitment to the
principle that the scope of a landowner’s duty to provide
protection against third party crime is determined in part
by balancing the foreseeability of the harm against the
burden to be imposed. (6 Cal.4th at p. 678.) We explained:
App. 19
“4h
[I]n cases where the burden of preventing future
harm is great, a high degree of foreseeability may be
required. [Citation.] On the other hand, in cases where
there are strong policy reasons for preventing the harm,
or the harm can be prevented by simple means, a lesser
degree of foreseeability may be required.” (Citation.]’ Or,
as one appellate court has accurately explained, duty in
such circumstances is determined by a balancing of ‘fore-
seeability’ of the criminal acts against the ‘burdensome-
ness, vagueness, and efficacy’ of the proposed security
measures. (Gomez v. Ticor, supra, 145 Cal.App.3d at p.
631.)” (Ann M., supra, 6 Cal.4th at Pp. 678-679.)
Plaintiff relies on the foregoing passage to argue
that, even if defendants were not required to hire security
guards because a high degree of foreseeability cannot be
established, the occurrence of violent third party crime in
underground garages is sufficiently foreseeable that
defendants were required to provide protection by simple
and less burdensome means. According to plaintiff,
defendants were under a “minimal obligation” to keep
the tenant garage brightly lit and clean, to hook up a
Previously installed security camera located over the ele-
vator of the garage, and to require existing personnel to
periodically walk through the garage. Plaintiff’s reason-
ing is flawed.
In the first place, it is questionable whether plaintiff's
proposed measures would have been effective to protect
against the type of violent assault that occurred here. The
record, for instance, contains no evidence that the secu-
rity camera at issue was even aimed toward the area of
the parking garage where plaintiff was attacked. More-
over, surveillance cameras do not deter all crime and
App. 20
criminals do not confine their activities to locations that
are untidy or unkempt.
It is also questionable whether the identified mea-
sures would have been any less burdensome than the
hiring of security guards. As defendants correctly point
out, surveillance cameras may be ineffectual to protect
against crime unless there are employees who are avail-
able to continuously monitor video transmissions and
respond effectively when suspicious or criminal behavior
is observed. Similarly, plaintiff’s contention that garage
owners and operators have a “minimal obligation” to
arrange periodic walk-throughs of the garage by existing
personnel assumes that they have workers readily avail-
able who are trained to deal with violent crime. But even
if such employees are available and higher monetary
costs are not implicated, a requirement that owners and
operators of commercial underground garages provide
“adequate” security monitoring through existing person-
nel would be vague and impossible to define, especially
where, as here, a particular garage has been free of crime
for a substantial period of time and there is no evidence
that garage users ever raised the issue of personal safety
with the owner or the operator.
In addition, a number of courts have criticized the
view that “adequate lighting” is a simple and well-
defined security measure that is effective in preventing
crime-related injuries. (E.g., 7735 Hollywood Blvd. Venture
v. Superior Court, supra, 116 Cal.App.3d at p. 905 [noting
the vagueness of a duty to provide adequate lighting];
Kwaitkowski v. Superior Trading Co., supra, 123 Cal.App.3d
at p. 333 [agreeing that the utility of a light as a security
measure is questionable]; cf. Gomez, supra, 145
App. 21
Cal.App.3d at p. 632 [suggesting that, unlike operational
security monitors and intercoms, light bulbs may have no
appreciable effect in preventing or warning of crimes].)
Other courts, moreover, have rejected claims of abstract
negligence pertaining to the lighting and maintenance of
property where no connection to the alleged injuries was
shown.° (E.g., Nola M. v. University of Southern California
(1993) 16 Cal.App.4th 421, 435-439 [even if defendant
owed a duty of protection, lighting and untrimmed
foliage and trees did not proximately cause plaintiff’s
injury where there was no evidence that her attacker hid
in the shadows or behind a tree or bush]; Constance B. v.
State of California (1986) 178 Cal.App.3d 200, 211-212
[lighting was not a proximate cause of plaintiff’s injury
because she saw her attacker standing in the light and
staring at her prior to the attack]; Noble v. Los Angeles
Dodgers, Inc. (1985) 168 Cal.App.3d 912, 915-916 [even
assuming a duty to protect, plaintiffs must prove more
than abstract negligence unconnected to the injury].)
Setting aside concerns regarding the efficacy and bur-
den of plaintiff's proposed security measures and ques-
tions regarding the issue of proximate cause, the record
remains deficient in establishing the foreseeability of vio-
lent attacks such as the one against plaintiff. Viewing the
record in the light most favorable to plaintiff, it shows
> In this case, plaintiff contends that inadequate lighting in
the tenant garage resulted in several darkened areas that
provided hiding places and vantage points from which her
attacker could have been lying in wait for a victim like her to
arrive. The record, however, contains no evidence that her
attacker actually used any of the darkened areas to facilitate his
assault.
App. 22
that robbers repeatedly targeted a bank on the ground
floor of the subject premises in the 27-month period
preceding the sexual assault. Apart from those incidents,
there is no evidence of other prior crimes against prop-
erty or persons on the premises, either in the office build-
ing or in the underground parking garage. Since sexual
assault is not a reasonably foreseeable risk associated
with bank robberies (see People v. Nguyen (1993) 21
Cal.App.4th 518, 533 [observing that rapes consummated
during the robbery of a bank appear to be a rarity]), the
bank robberies did not portend the vicious assault com-
mitted upon plaintiff.
Two decisions, Cohen v. Southland Corp. (1984) 157
Cal.App.3d 130 (Cohen) and Gomez, supra, 145 Cal.App.3d
622, support a somewhat broader concept of fore-
seeability with regard to assaults occurring on properties
that have some history of nonassaultive crime. In those
cases, the courts indicated it would be reasonable to
anticipate that a person would be subject to violent attack
if he or she were to be present at an otherwise foreseeable
crime on the premises or if he or she were to-interrupt
such a crime in progress.© Thus, they reasoned, violent
assaults that occur in such a manner may be sufficiently
foreseeable to require the taking of “minimal” security
measures even though the subject premises had never
before experienced an assault or injury-producing crime.
6 We accept, for purposes of argument, Gomez ‘s apparent
conclusion that a crime of robbery may be foreseeable in a
parking structure when at least 16 crimes of theft or vandalism
have occurred on the premises in the office building above the
structure. (See Gomez, supra, 145 Cal.App.3d at p. 628.)
App. 23
(Cohen, supra, 157 Cal.App.3d at pp. 139-140, 142-143;
Gomez, supra, 145 Cal.App.3d at p. 628.) Here, of course,
plaintiff offered no evidence Suggesting that her attack
had any connection to an otherwise foreseeable crime on
the premises (i.e., bank robbery). Accordingly, the inci-
dent falls outside even the broader scope of reasonable
foreseeability contemplated in Cohen and Gomez.
Finally, the police department records of crimes
occurring in the 50 square blocks Surrounding the park-
ing garage do not aid plaintiff’s case. On this point, we
note that Ann M. left open the possibility that violent
crime may be foreseeable on a business property in the
absence of prior similar incidents if violent crimes previ-
ously occurred on the premises of a substantially similar
business establishment in its immediate proximity. (Ann
M., supra, 6 Cal.4th at p. 679, fn. 7.) But the evidence
provided here contains no information regarding the
location of any of the reported crimes within the identi-
fied sector and no indication of their proximity to the
garage. Nor has plaintiff shown that defendants were
aware of the police department statistics. In short, such
evidence provides no tenable basis for establishing fore-
seeability.”
” The record in this case differs substantially from that in
Clohesy v. Food Circus Supermarkets, Inc. (N.J.1997) 149 NJ. 694
A.2d 1017 (Clohesy), a case in which the New Jersey Supreme
Court held it was reasonably foreseeable that a customer of a
large supermarket could suffer some injury in its parking lot
such that the supermarket owner had a legal duty to provide
reasonable security in the lot. In contrast to the situation here,
the record in Clohesy contained evidence of approximately 60
criminal incidents either on or in close proximity to the
App. 24
We have not. overlooked the fact that Frances T. v.
Village Green Owners Assn., supra, 42 Cal.3d 490, Peterson
v. San Francisco Community College Dist. (1984) 36 Cal.3d
799, and Slapin v. Los Angeles International Airport (1976)
65 Cal.App.3d 484, allowed victims of violent crime to
maintain tort actions premised upon theories of insuffi-
cient lighting or maintenance of property. Those deci-
sions, however, were all decided in the context of
demurrers to complaints containing allegations, which, if
proved true, would establish the foreseeability of crime
on the premises. (Frances T. v. Village Green Owners Assn.,
supra, 42 Cal.3d at p. 503 [rape victim’s complaint alleged
facts demonstrating the defendant’s knowledge that
crimes were being committed against condominium resi-
dents, that the plaintiff’s unit had been recently bur-
glarized, and that additional lighting in the common
areas was needed and could aid in deterring criminal
conduct, especially break-ins of units]; Peterson v. San
Francisco Community College Dist., supra, 36 Cal.3d at pp.
814-815 [victim of an attempted rape on a community
-~
supermarket’s premises over the 2 1/2-year period that
preceded the deceased customer’s kidnapping and murder in
1991. (694 A.2d at p. 1021.) The offenses consisted of thirty
shopliftings, twelve thefts either inside the store or in the
parking lot, four driving while intoxicated offenses, four
disorderly conduct offenses, four assaults, one criminal
mischief, one trespassing, and one possession of a controlled
dangerous substance. (Ibid.) In addition, the record reflected a
significant increase in the incidents occurring on the
supermarket’s premises (four in 1989; seven in 1990; thirteen in
1991). (Ibid.) In light of the obvious dissimilarities, we do not
view Clohesy as supporting a finding of foreseeability here.
App. 25
college campus was entitled to pursue action under Gov-
ernment Code section 835 and to prove that the defen-
dant’s failure to warn, trim foliage, or take other
reasonable protective measures was the proximate cause
of her injuries in light of specific allegations that the
defendant was aware that prior similar assaults had
occurred in the same location]; Slapin v. Los Angeles Inter-
national Airport, supra, 65 Cal.App.3d at p. 489 (clarifying,
in the context of an action under Government Code sec-
tion 835, that the question whether the alleged dangerous
condition caused by insufficient lighting created a reason-
ably foreseeable risk of injury would hinge the plaintiffs’
ability “to establish a history of crime at the parking lot”];
see also Penner v. Falk (1984) 153 Cal.App.3d 858, 866-867
[complaint sufficiently alleged landlord’s awareness of
violent crime on the premises].) By contrast, this case
comes to us on a motion for summary judgment and
plaintiff has presented her proof. That proof, we con-
clude, is insufficient to establish foreseeability.
It is difficult to quarrel with the abstract proposition
that the provision of improved lighting and maintenance,
Operational surveillance cameras and periodic walk-
throughs of the tenant garage owned and operated by
defendants might have diminished the risk of criminal
attacks occurring in the garage. But absent any prior
Similar incidents or other indications of a reasonably
foreseeable risk of violent criminal assaults in that loca-
tion, we cannot conclude defendants were required to
secure the area against such crime.
App. 26
DISPOSITION
The contrary judgment of the Court of Appeal is
reversed and the matter is remanded to that court with
directions to enter judgment in favor of defendants.
BAXTER, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
CHIN, J.
BROWN, J.
COPY
SHARON P. v. ARMAN, LTD., et al.
$063612
CONCURRING AND DISSENTING OPINION BY
WERDEGAR, J.
Like the majority, I fully embrace the proposition that
“the provision of improved lighting and maintenance,
operational surveillance cameras and periodic walk-_
throughs of the tenant garage owned and operated by
defendants might have diminished the risk of criminal
attacks occurring in the garage.” (Maj. opn., ante, at p.
22.) Such measures, or others that might readily be imag-
ined, such as strategically placed intercoms or security
alarms, clearly would enhance any garage user’s sense of
personal safety and security when parking his or her car
and traversing the facility to an exit.
App. 27
Notwithstanding the above, a landlord has no abso-
lute duty, in the abstract, to take some or all such mea-
sures; rather, a landlord’s “duty to take affirmative action
to control the wrongful acts of a third party will be
imposed only where such conduct can be reasonably
anticipated.” (Ann M. v. Pacific Plaza Shopping Center
(1993) 6 Cal.4th 666, 676 Ann M.), citing Frances T. v.
Village Green Owners Assn. (1986) 42 Cal.3d 490, 501.) As
we stated in Ann M., “In this, as in other areas of tort law,
foreseeability is a crucial factor in determining the exis-
tence of duty.” (6 Cal.4th at Pp. 676, citing Isaacs v. Hunt-
ington Memorial Hospital (1985) 38 Cal.3d 112, 123 (Isaacs);
Lopez v. McDonald's Corp. (1987) 193 Cal.App.3d 495, 506.)
Foresevability, as regards duty, rests on more than the
mere possibility that taking any one or a combination of
assorted measures might diminish the risk of criminal
attacks. Rather, “duty in such circumstances is deter-
mined by a balancing of ‘foreseeability’ of the criminal
acts against the ‘burdensomeness, vagueness, and effi-
cacy’ of the proposed security measures.” (Ann M., supra,
at p. 679, citing Gomez v. Ticor (1983) 145 Cal.App.3d 622,
631.)
Consequently, I believe the majority correctly adheres
to the test set forth in Ann M., when it states that, “absent
any prior similar incidents or other indications of a reason-
ably foreseeable risk of violent criminal assaults in that
location, we cannot conclude defendants were required to
secure the area against such crime.” (Maj. opn., ante, at p.
22, italics added; see Ann M., supra, 6 Cal.4th at p. 679 &
fn. 7.)
In the instant case, the record fails to show not only
any prior similar incidents; it fails as well to show any
App. 28
“other indications of a reasonably foreseeable risk of
violent criminal assaults” in the garage. The only criminal
activity in close proximity to the garage consisted of
seven robberies, over a period of two years, in a bank
above ground and at some distance from the parking
garage entrance. The possibility of a robbery in a bank
does not raise the possibility of a rape in a distant, or
even a nearby, garage.
Significantly, before this incident the garage had been
crime free for more than 10 years. The garage was fre-
quented, moreover, not by the occasional patron, but by
regular customers who were tenants in the office building
above. Plaintiff and her counsel assert the garage showed
signs of neglect, yet, whatever the degree of neglect in its
maintenance, such was insufficient, insofar as the record
discloses, to cause the tenants - likely repeat, even daily,
users of the facility - in the interests of their personal
safety or sense of security, to complain to the owner or
operator about any perceived risk of harm or deteriora-
tion in the condition of the premises. Given, therefore, the
lack of any prior similar incidents, the lack of any
expressed concern by regular users of the garage, and the
lack of any other indications of a reasonably foreseeable
risk of violent criminal assaults, either on the premises or
in reasonable proximity thereto, I agree the landlord here
did not have a legal duty to take precautions against such
criminal activity.
I therefore concur in the majority’s reversal of the
judgment below.
I dissent, however, from the majority opinion to
the extent its exaggerated emphasis on, and separate
App. 29
treatment of, security guards, a measure the majority
acknowledges plaintiff “is not asking for” (see maj. opn.,
ante, at p. 6), may be read analytically to distinguish the
question whether a landlord is obligated to provide such
guards from the question of scope of duty, generally.
There is no such analytical distinction. The scope of a
landlord’s duty “to take reasonable steps to secure com-
mon areas against foreseeable criminal acts of third par-
ties” (Ann M., supra, 6 Cal.4th at p. 674) depends on the
circumstances and, as previously noted, “is determined
by a balancing of ‘foreseeability’ of the criminal acts
against the ‘burdensomeness, vagueness, and efficacy’ of
the proposed security measures” (id. at p. 679). In Ann
M., in a context where the plaintiff contended security
patrols were the “first line of defense” the landlord owed
(id. at p. 673), we determined a high degree of fore-
seeability was required to find the provision of security
guards to be within the scope of the landlord’s duty. In so
doing, we “revisit{ed]” and “refin[ed]” Isaacs, supra, 38
Cal.3d 112, which had determined that prior similar inci-
dents were relevant, but not essential, to the existence of
such a duty. We did not, however, thereby create a special
form of duty analysis for such claims. Both “before and
after our decision in Isaacs, we have recognized that the
scope of the duty is determined in part by balancing the
foreseeability of the harm against the burden of the duty
to be imposed.” (Ann M., supra, at p. 678.)
I further dissent insofar as the majority opinion may
be read impliedly to reinstitute a pure prior similar inci-
dents rule such as we demonstrated in Isaacs is “fatally
flawed in numerous respects.” (Isaacs, supra, 38 Cal.3d at
p-125; see generally, id. at pp. 125-126.) As the majority
App. 30
acknowledges, we have “left open the possibility that
violent crime may be foreseeable on a business property
in the absence of prior similar incidents if violent crimes
previously occurred on the premises of a substantially
similar business establishment in its immediate prox-
imity” (maj. opn., ante, at p. 20, citing Ann M., supra, 6
Cal.4th at p. 679, fn. 7) or where there are “other indica-
tions of a reasonably foreseeable risk of violent criminal
assaults in that location” (maj. opn., ante, at p. 22). In this
case, therefore, the absence of prior incidents similar to
the attack on plaintiff is relevant, but not dispositive, and
the majority’s conclusion “that defendants’ duty of care
did not include the hiring of security guards for the
garage because the bank robberies were not sufficiently
similar to the sexual assault crime to establish a high
degree of foreseeability” (maj. opn., ante, at p. 15) is
correct, but only because the record discloses no “other
[legally sufficient] indications of a reasonably foreseeable
risk of violent criminal assaults in that location” (id. at p.
22).!
Emphatically, a landlord is not, as the prior similar
incidents rule would have it, entitled to one free assault
before the failure to take appropriate security measures
subjects him or her to the risk of civil liability.
WERDEGAR, J.
1 | agree with the majority that plaintiff's proffered proof in
this case —- police department records of crimes during the
previous 15 months in the 50 square blocks surrounding the
garage (recording 2 rapes out of 363 crimes) — does not provide a
tenable basis for establishing foreseeability. (Maj. opn., ante, at
pp. 3, 20.)
App. 31
COPY
SHARON P. v. ARMAN, LTD., ET AL.
S$063612
DISSENTING OPINION BY MOSK, J.
I dissent. To hold that the operator of this under-
ground garage, with its alleged hiding places, missing
lights, broken security cameras, absence of supervision,
and other evidence of neglect, lacked any duty as a
matter of law to maintain the premises in a fit and safe
condition for business so as not to attract crime — and
implicitly that any garage operator lacks such a duty -
defies logic. And the result is demonstrably unjust.
I
Sharon P. alleged that she was sexually assaulted in
an underground parking garage. She claimed in essence
that the garage’s dilapidation attracted her assailant. The
trial court ruled that plaintiff was not owed a duty of care
and entered summary judgment for defendants. It rea-
soned that the crime was not sufficiently foreseeable to
give rise to a duty of care.
A
To recover for the consequences of another’s purpor-
tedly wrongful action, the victim must show that the
tortfeasor owed a duty of care, that it breached its duty,
that the breach proximately caused the harm, and that the
victim is entitled to money damages as a result. (Artiglio
v. Corning, Inc. (1998) 18 Cal.4th 604, 614.) This is the
bedrock of negligence law. Of these elements, ordinarily
App. 32
only duty is a question of law to be resolved by a court.!
Thus, we routinely say that the existence of a duty is a
legal question. (Kentucky Fried Chicken of Cal., Inc. v. Supe-
rior Court (1997) 14 Cal.4th 814, 819.) The requirement of
duty gives courts the ability to limit liability for reasons
of social policy (e.g., Hoff v. Vacaville Unified School Dist.
(1998) 19 Cal.4th 925, 933), lest the theoretically infinite
reach of tort liability paralyze society with a rule that any
action eventually leading to harm, no matter how
remotely, is actionable. Thus, an actor has no legal duty to
avoid unforeseeable harm. (Ann M. v. Pacific Plaza Shop-
ping Center (1993) 6 Cal.4th 666, 678.)
In this case, however, the majority wrongly decide
that defendants had no duty to maintain the premises so
as not to guard against attacks on people therein. That is
utterly contrary to settled legal principles. Civil Code
section 1714 provides in relevant part: “Every one is
responsible . . . for an injury occasioned to another by his
want of ordinary care or skill in the management of his
property. ...” Thus, “California law requires landowners
to maintain land in their possession and control in a
reasonably safe condition.” (Ann M., supra, 6 Cal.4th 666,
674.) This obligation “includes a ‘duty to take affirmative
action to control [i.e., guard against] the wrongful acts of
third persons which threaten invitees where the occupant
1 Whether defendants breached their duty is a question of
fact for the jury to decide. (Mexicali Rose v. Superior Court (1992)
1 Cal.4th 617, 633.) So are the questions whether defendants’
conduct proximately caused plaintiff’s injuries (Hoyem v.
Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 520), and
the amount of compensation owed for them (Torres v. City of Los
Angeles (1962) 58 Cal.2d 35, 53).
App. 33
has reasonable cause to anticipate [i.e., foresee] such acts
and the probability of injury resulting therefrom.’ ” (Ken-
tucky Fried Chicken, supra, 14 Cal.4th 814, 819.) In turn,
“ “foreseeability . . . includes whatever is likely enough in
the setting of modern life that a reasonably thoughtful
[person] would take account of it in guiding practical
conduct.’ .. . Moreover, it is settled that what is required
to be foreseeable is the general character of the event or
harm .. . [and] not its precise nature or manner of
occurrence.” (Bighbee v. Pacific Tel. & Tel. Co. (1983) 34
Cal.3d 49, 57-58.)
As pertinent to a case such as this, in which a victim
sues the possessor of land for a crime committed against
her by a third party, “duty .. . is determined by a
balancing of ‘foreseeability’ of the criminal acts against
the ‘burdensomeness, vagueness, and efficacy’ of the pro-
posed security measures.” (Ann M., supra, 6 Cal.4th 666,
679.) Applying Ann M.’s balancing test, one observes that
a land possessor’s neglect of its property may increase
the foreseeability of third party criminal conduct, and
thus create a duty to ameliorate any dilapidation or dete-
rioration that invites violent crime. (Isaacs v. Huntington
Memorial Hospital (1985) 38 Cal.3d 112, 129; cf. Ann M.,
supra, 6 Cal.4th 666, 677-679 & fns. 6 & 7.)2 Foreseeability
* In Isaacs we held that whether a reasonable land
possessor would have foreseen the possibility of criminal
conduct depends on the following factors, among others: “the
nature, condition and location of the defendant’s premises.”
(Isaacs, supra, 38 Cal.3d 112, 129.) Ann M. expressed doubt about
a totality of the circumstances test contained in Isaacs, but did
not overrule Isaacs in this regard; indeed, Ann M. noted that
under circumstances similar to those Sharon P. alleges here, a
App. 34
increases, as does the burden imposed on the land pos-
sessor to guard against third parties’ criminal acts, to the
extent that those three factors were present and would
notify a reasonable land possessor of the potential that its
invitees could be injured.
This case comes before us on summary judgment. As
is well known, a summary judgment motion is properly
granted if the moving party meets the burden of showing
that there are no triable issues of fact and that it is
entitled to judgment as a matter of law. (Artiglio v. Cor-
ning, Inc., supra, 18 Cal.4th 604, 612.) Thus if, but only if,
the land possessor meets the burden of showing that, as a
matter of law, the character of the property and the history
of crime on the property and in the vicinity, viewed in the
aggregate, would not give notice to a reasonable land
possessor of the potential for harm to its invitees, is the
summary judgment motion properly granted.
The foregoing burden, of course, is and should be
difficult to meet. Summary judgment is not “a substitute
for a full trial.” (Hayman v. Block (1986) 176 Cal.App.3d
629, 639.) “The purpose of the summary judgment pro-
cedure is not to try the issues but merely to discover,
through the medium of affidavits, whether there are
issues to be tried and whether the parties possess evi-
dence which demands the analysis of trial.” (Colvin v.
City of Gardena (1992) 11 Cal.App.4th 1270, 1275.) Espe-
cially in a factually complex case such as this, the parties
plaintiff might establish a high degree of foreseeability. (Ann M.,
supra, 6 Cal.4th 666, 679, fn. 7.)
App. 35
cannot be expected to present all of their evidence in the
form of affidavits.
Applying the principles outlined above to the alleged
facts of this case, it is clear that granting the summary
judgment motion was improper. It was for a jury to
evaluate the conflicting evidence and determine whether,
under all of the circumstances, defendants knew of or
should have anticipated the possibility of criminal con-
duct in their parking garage, and failed to guard against
it or even invited it by letting the premises deteriorate.
But the notion that there are limits to the limits on
tort liability that courts may impose is absent from the
majority’s analysis. They impose an iron rule of no poten-
tial liability despite plaintiff’s strong evidence of
neglected and unsupervised property. They err.3
3 Nothing in Ann M., supra, 6 Cal.4th 666, is to the contrary.
The question presented in Ann M. was narrow: whether a
shopping center had a duty, despite a lack of knowledge of prior
incidents of violent crime, to provide security guards to protect
a tenant’s employee - or as stated in Ann M.’s own language,
whether it “had reasonable cause to anticipate that criminal
conduct such as rape would occur in the shopping center
premises unless it provided security patrols in the common
areas.” (Id. at p. 676.) We concluded that because of the high cost
of security guards and the difficulty of knowing how many
might be needed, “a high degree of foreseeability is required in
order to find that the scope of a landlord’s duty of care includes
the hiring of security guards.” (Id. at p-_679.) 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.” (/bid.)
But that is the extent of Ann M. As the Court of Appeal
herein explained, “Ann M. did not totally rewrite Isaacs on the
App. 36
B
The majority rest their decision on the principle of
unforeseeability. But their reasoning is difficult to under-
stand, and I believe they confuse the two different ways
in which foreseeability is applied. To be sure, “[t]he prob-
lem is complex, and has bedeviled many.” (Brewer v. Teano
(1995) 40 Cal.App.4th 1024, 1030.) The majority may now
count themselves among them.
The majority contend that foreseeability, when used
as a component of determining a defendant's duty, is a
matter of law for the court to decide. That is correct, but
it is a rule of limited application. All it means is that, as a
general matter, if the type of harm alleged is too remote a
consequence of the type of misconduct alleged, the defen-
dant is not liable. (Ballard v. Uribe (1986) 41 Cal.3d 564,
573, fn. 6.) It is much the same as saying that the conduct,
as a matter of law, was not the proximate cause of the
harm. But there is no question of such remoteness here. It
is for the jury to decide whether, under the facts of this
case, the harm to Sharon P. was a foreseeable conse-
quence of defendants’ conduct.
issue of prior similar incidents, but only addressed that issue
vis-a-vis the claimed necessity of a specific preventative
measure: security guards.” (Italics deleted.) What Ann M. does
require is what Isaacs v. Huntington Memorial Hospital, supra, 38
Cal.3d 112, required: as stated, “a balancing of ‘foreseeability’ of
the criminal acts against the ‘burdensomeness, vagueness, and
efficacy’ of the proposed security measures.” (Ann M., supra, 6
Cal.4th 666, 679; cf. Isaacs, supra, 38 Cal.3d 112, 125, 131.) A court
engages in that balancing test in determining the scope of the
land possessor’s duty. (Ann M., supra, 6 Cal.4th at pp. 678-679.)
App. 37
The majority appear not to perceive the distinction,
but they need look no further than Ballard v. Uribe, supra,
41 Cal.3d 564. Brewer v. Teano, supra, 40 Cal.App.4th 1024,
usefully summarized Ballard’s holding. Ballard “acknowl-
edged the confusion that had arisen over the respective
-toles played by the court and jury in dealing with the
foreseeability concept in tort doctrine. In some contexts it
is a question of fact for the jury, and in others a ‘part of
the calculus to which a court looks in defining the bound-
aries of “duty.” ’ ‘ “[D]uty” is not an immutable fact of
nature, ““ “but only an expression of the sum total of
those considerations of policy which lead the law to say
that the particular plaintiff is entitled to protection.’ ” ’
The foreseeability of a particular kind of harm is signifi-
cant in the duty calculus, ‘but a court’s task — in deter-
mining “duty” - is not to decide whether a particular
plaintiff’s injury was reasonably foreseeable in light of a
particular defendant’s conduct, but rather to evaluate
more generally whether the category of negligent conduct
at issue is sufficiently likely to result in the kind of harm
experienced that liability may appropriately be imposed
on the negligent party.’ By contrast, the jury considers
foreseeability in two more focused, fact-specific settings:
likelihood or foreseeability of injury in deciding whether
defendant’s conduct was negligent in the first place, and
whether the negligence was a proximate or legal cause of
plaintiff’s injury.” (Id. at p. 1030.)
Cc
Today’s decision illustrates the impossibility of eval-
uating complex factual matters in the pages of the appel-
late reports. If the question of legal duty must not be “left
App. 38
to the jury,” lest “the court... abdicat[e] decision in favor
of men who do not know the law” (Prosser, Proximate
Cause in California (1950) 38 Cal.L.Rev. 369, 423), so the
questions of proximate cause and foreseeability in the
fact-specific context of this case must not be left to a
reviewing court that, in the absence of a full trial, cannot
and does not know all of the relevant facts.
II
I also disagree with the majority’s unsupported com-
ments about crime and public safety.
Apparently addressing the question of proximate
cause, the majority announce that “it is questionable
whether plaintiff’s proposed measures would have been
effective to protect against the type of violent assault that
occucred here. The record, for instance, contains no evi-
dence that the security camera at issue was even aimed
toward the area of the parking garage where plaintiff was
attacked. Moreover, surveillance cameras do not deter all
crime and criminals do not confine their activities to
locations that are untidy or unkempt.” (Maj. opn., ante, at
p: 17.)
Of course surveillance cameras do not deter all crime.
One question to be resolved at trial is the extent to which
they would have on defendants’ premises. And of course
criminals do not confine their conduct entirely to
neglected, dank, dark, gloomy and unmonitored under-
ground parking structures. Crime may occur in unlikely -
places: in 1982 an intruder awakened Queen Elizabeth II
in her bedroom at Buckingham Palace. The question,
ultimately, is whether the environment in which plaintiff
a ene, Se
He Bi rt eh
a AB Se ENE St ich Nita iba
App. 39
was assaulted invited crime in a way that entitles her to
damages. These are questions of fact for a jury to resolve.
Casual theorizing and straw-figure demolition per-
vade the majority’s discussion. The majority speculate
that “surveillance cameras may be ineffectual to protect
against crime unless there are employees who are avail-
able to continuously monitor video transmissions - and
respond effectively when suspicious or criminal behavior
is observed.” (Maj. opn., ante, at p- 17.) They also, with
notable lack of persuasiveness, question the efficacy of
good lighting. (Id. at p. 18.) But at a trial, there might be
testimony on such questions. That trial will not occur
now.
One item of the majority’s social commentary is
almost certainly incorrect. They justify their decision to
excuse defendants in part by announcing that “violent
crime [is] ‘endemic in today’s society.’ ” (Maj. opn., ante,
at p. 15.) The strange implication is that ever higher crime
rates justify a new legal rule. But empirical data belie the
majority’s observation: violent crime has declined to the
levels of decades ago. “National Crime Victimization Sur-
vey [1998] violent crime rates .. . are the lowest recorded
since the survey’s inception in 1973.”4 And “the 1991
peak in the homicide rate was lower than the 1980 crest
and even close to par with trends during the Great
* Criminal Victimization 1998, Bureau of Justice Statistics,
United States Department of Justice (Aug. 25, 1999 online ed.),
available at <http://www.ojp.usdoj.gov/bjs/cvictgen.htm> as
of September 21, 1999,
App. 40
Depression. Moreover, since 1991, the murder rate has
regressed to levels not seen since the 1960s.”°
Moreover, the majority’s crime prevalance analysis is
illogical. If crime is endemic in a particular area, then the
duty to protect against it is heightened, not diminished.
The relevant question in this regard is whether defen-
dants’ garage was located in an area sufficiently prone to
certain crimes so as to make a potential attack on an
invitee foreseeable. If so, that fact, regardless of statistics,
would call for defendants to provide more protection to
their invitees, not less. To repeat, “ ‘foreseeabili-
ty ... includes whatever is likely enough in the setting of
modern life that a reasonably thoughtful [person] would
take account of it in guiding practical conduct.’ ” (Bigbee
v. Pacific Tel. & Tel. Co., supra, 34 Cal.3d 49, 57.)
Ill
The Court of Appeal declared that this case pre-
sented the question whether underground “commercial
parking garages can be fairly characterized as inherently
dangerous” for attracting “the criminal acts of third per-
sons.” It held that they could be so characterized.
In reversing the trial court’s grant of summary judg-
ment, the Court of Appeal found two factors significant.
The first was narrow and, though it led that court to a
legal conclusion, was fact specific. Sharon P. alleged that
5 Fox, Nature and distribution of known offenses, Sourcebook
of Criminal Justice Statistics (1998 online ed.) available at
<http:// www.albany.edu/sourcebook/1995/sec3intro.html>
as of September 21, 1999.
_—
App. 41
defendants had neglected the property and it was located
in a high-crime area. “[T]aking into account the physical
conditions presented at this particular location as well as
its recent history of criminal activity, including at least
seven serious felonies (robberies) at the adjacent bank
premises during the two-year period preceding the
assault on plaintiff, we hold, as a matter of law, that a
high degree of foreseeability existed that patrons of the
defendants’ commercial parking garage might become
victims of third person criminal assaults, such as rob-
beries, shootings, rapes, or some other form of physical
aggression. We necessarily further hold that, given all of
such circumstances, specific evidence of prior similar
criminal misconduct is not required in order for the
defendants to have a duty to provide reasonable preven-
tative measures which, depending on the total circum-
stances, might or might not include security guards.”
The second factor in the Court of Appeal’s analysis
was purely legal: it held that as a matter of law under-
ground parking garages, by their nature, invite crime.
“ *[I]n its very operation of a parking structure, defendant
may be said to have created “an especial temptation and
opportunity for criminal misconduct,” thus increasing the
foreseeability of the attack. [Citation.] In making this
observation, we note the unique nature of a parking
complex, which invites acts of theft and vandalism. In
such structures, numerous tempting targets (car stereos,
car contents, the cars themselves) are displayed for the
thief; high walls, low ceilings and the absence of the cars’
owners allow the thief or vandal to work in privacy and
give him time to complete his task. Such circumstances
App. 42
increase the likelihood of criminal misconduct. In addi-
tion, the deserted, labyrinthine nature of these structures,
especially at night, makes them likely places for robbers
and rapists to lie in wait. Robbery, rape, and violent
consequences to anyone who interrupts these crimes,
may thus also be foreseeable.’ ” The Court of Appeal was
quoting Gomez v. Ticor (1983) 145 Cal.App.3d 622, 628,
invoking language that we also quoted approvingly in
Isaacs v. Huntington Memorial Hospital, supra, 38 Cal.3d
112, 128.
These conclusions were, in my view, erroneous. The
first conclusion was incorrect for the same reason that the
majority err: the Court of Appeal decided as a matter of
law a question of foreseeability that was for the jury, but
decided it to the contrary. The second conclusion, that
subsurface parking garages are inherently dangerous,
was also erroneous. In fact some such parking garages,
because they provide the security their location requires,
are not dangerous. But the Court of Appeal cannot be
faulted for having addressed the issue. It was inevitable
that a reviewing court would do so after we queried in an
aside in Ann M., supra, 6 Cal.4th 666, “whether some
types of commercial property are so inherently dangerous
that, even in the absence of prior similar incidents, pro-
viding security guards will fall within the scope of a
landowner’s duty of care.” (Id. at p. 680, fn. 8.) We
suggested that parking garages were inherently dan-
gerous, observing that Ann M. had “offered no evidence
to show that, like a parking garage or an all-night conve-
nience store, a retail store located in a shopping center
creates ‘ “an especial temptation and opportunity for
criminal conduct.” ’” (Ibid.) The Court of Appeal noted,
Les An eh y,
App. 43
“Although the [Ann M.] court phrased the question only
in terms of a duty to Provide security guards, the basic
issue it left unresolved is whether certain types of com-
mercial premises may be so inherently dangerous as to
present a reasonable foreseeability that crimes against
customers or tenants will be committed by third persons
if the landowner does not take reasonable preventative
measures which may or may not include security
guards.”
But the majority have responded to the questionable
aspects of the Court of Appeal majority’s analysis with
their own errors. I disagree with the reasoning both of the
majority on this court and that on the Court of Appeal.
IV
I would affirm the judgment of the Court of Appeal,
but on the grounds stated herein.
Mosk, J.
App. 44
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE
STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
B094739
(Super. Ct. No. SC029060)
(Filed Jul. 8, 1997)
SHARON P.,
Plaintiff and
Appellant,
)
)
)
v.
ARMAN, LTD., ET AL., )
)
)
)
)
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Richard Neidorf, Judge. Reversed.
Peter B. O’Brien and Kelly L. Duenckel for Plaintiff
and Appellant.
Early, Maslach, Price & Baukol, Larry E. Robinson,
Greines, Martin, Stein & Richland, Marc J. Poster, Robert
A. Olson, Acker, Kowalick & Whipple, Stephen Acker
and A. Gina Hogtanian for Defendants and Respondents.
In this case, we deal with an issue left unresclved by
the Supreme Court in Ann M. v. Pacific Plaza Shopping
Center (1993) 6 Cal.4th 666, to wit, the extent to which
commercial parking garages can be fairly characterized as
inherently dangerous, and the impact which that circum-
stance has on the duty of the owners and operators
App. 45
thereof to take reasonable precautions to protect users
from the criminal acts of third persons.
Plaintiff Sharon P. appeals from a Summary judgment
granted to defendants Arman, Ltd. and APCOA, Inc.
(“Arman,” “Apcoa,” collectively “defendants”). Plaintiff
filed this suit after she was attacked and sexually
assaulted at gunpoint in a subterranean parking garage in
the commercial office building where she worked. The
building and &arage are owned by Arman and the garage
is managed by Apcoa. The Summary judgment was based
on the trial court’s determination that defendants owed
no duty of care to plaintiff. After reviewing plaintiff’s
evidence of various crimes in the surrounding neighbor-
hood, including a number of robberies in the bank
located above the parking garage, the court determined
that such evidence was “not sufficient to raise a triable
issue of fact in that it does not establish the degree of
foreseeability necessary to impose upon the defendants a
duty to the plaintiff.” For the reasons set forth in this
opinion, the trial court’s conclusion reflected an incorrect
analysis and application of relevant case law.
We conclude defendants did Owe a duty of care to
plaintiff to provide reasonable security measures in the
commercial parking garage which was owned and oper-
ated by them and in which plaintiff was attacked.
Whether the manner in which they operated and main-
tained that garage constituted a breach of that duty and,
if so, whether such breach was a legal cause of the
damages suffered by plaintiff, are issues which must be
addressed upon remand. We therefore reverse the judg-
ment and remand for further Proceedings consistent with
the views expressed herein.
* NU Cte? ae ee
App. 46
PROCEDURAL AND FACTUAL BACKGROUND
1. Procedural History
According to plaintiff’s complaint, she rented an
assigned parking space in the subterranean parking
garage which is at issue in this case. The parking area is
reserved for tenants of the Coast Savings building at 1180
South Beverly Drive, in Los Angeles. The complaint
alleges plaintiff conducted accounting business activities
in a suite in the office/bank building. The complaint
further alleges that on Thursday, April 8, 1993, at around
11:00 a.m., the day and time she was attacked, defendants
failed to take appropriate security measures for this park-
ing garage, and their inaction resulted in the attack upon
her and in her consequent pain, suffering and extreme
emotional distress, as well as past, present and future
medical expenses and loss of income.
This suit was filed on March 11, 1994. Apcoa filed its
motion for summary judgment on December 21, 1994,
contending that neither it, nor Arman, owed a duty to
make the garage more secure because the attack on plain-
tiff was not reasonably foreseeable. Apcoa also contended
it had no liability to plaintiff as it owed no duty to her. It
justified that conclusion on the grounds that it neither
owned nor occupied the land where she was attacked,
nor did it have any contractual responsibilities to plaintiff
under its contract with Arman because that contract only
required Apcoa to collect rents on the parking space. On
February 3, 1995, defendant Arman filed papers by which
it partially joined in and partially opposed Apcoa’s
motion. Arman’s papers challenged Apcoa’s assertion
that Apcoa had no contractual duties which would make
pleats ee chs tated Sh Sins egpaie > heainsa ats sss Seah een Aah, $k
App. 47
it liable to plaintiff. Arman cited insurance and indemnity
portions of the contract between itself and Apcoa. The
motions were heard March 13, 1995, and granted. The
record reflects that the trial court based its decision on
the issues of foreseeability and duty. Judgment was
entered April 5, 1995. This appeal followed.
2. Evidence Presented to the Trial Court
a. Plaintiff's Evidence
In her declaration filed in opposition to defendants’
summary judgment motions,! plaintiff stated she had
entered the underground parking garage on the day in
question at 11:00 a.m., and parked in her assigned space.
She exited her vehicle, leaned back into the car to remove
items from the back seat, and when she turned around, a
man in a ski mask was pointing a gun at her. She tried to
talk her way out of harm, but was forced back into the car
and sexually assaulted. Her attacker was not caught.
Plaintiff stated that for several months preceding her
‘ Several declarations were filed in support of plaintiff’s
Opposition to the motions for summary judgment. There is no
indication in the record that defendant Apcoa filed evidentiary
objections to these declarations. Although defendant Arman did
file such objections, the record contains no ruling on those
objections. The result is that we deem waived any objections
which defendants may have had to the declarations. (Code Civ.
Proc., § 437c, subds. (b), (c) & (d); Ann M. v. Pacific Plaza
Shopping Center, supra, 6 Cal.4th at p. 670, fn. 1.) Indeed, the
order granting the motions states that the trial court considered
all the evidence set forth in the papers submitted by the parties,
and the inferences reasonably deducible from that evidence.
App. 48
attack, the overall condition of the garage had deterio-
rated. It was not unusual for several lights to be out, and
this would cause darkened areas in the garage. There
were lights out in the immediate area of her parking
space.? On the day of her attack, the garage “had several
darkened areas that provided vantage points from which
someone lying in wait until after the morning influx of
tenants could observe a lone woman arriving in her car as
easy prey.” Several darkened storage areas would pro-
vide a place to hide. She smelled urine at various times
during her walks to and from the garage. The garage was
not kept clean. Plaintiff never saw defendants’ employees
monitoring or inspecting the garage. After the attack on
her, she learned the security cameras in the garage had
not been working for months.
A declaration from plaintiff's attorney, Kelly
Duenckel, states that on October 25, 1994 (18 months after
the attack on plaintiff), Ms. Duenckel examined the park-
ing garage in question and found that at least 12 light
bulbs were burned out and four lights were out in the
row of parking spaces where plaintiff used to park. She
observed that the storage spaces in the garage were dark
and would provide an ideal hiding place, and at least one
smelled of urine and had a cot by it. Both Duenckel and
plaintiff stated in their declarations that these storage
spaces were cordoned off with chain link fence; however,
Duenckel indicated it appeared that “anyone could have
2 Plaintiff does not indicate when these lights near her
parking space were out [i.e., whether they were out before, after,
and/or on the day of her attack], but she says generally that the
parking garage was not well lighted.
App. 49
access to these storage spaces.” Duenckel also observed
that the video cameras above the elevator doors were not
functioning. She stated the garage bore no indication that
it was regularly maintained.
Retired Pasadena police chief, Robert McGowan, was
deposed. McGowan testified that underground parking
lots are potential places for criminals to lie in wait. His
department worked with a mall and a department store
in Pasadena that have underground parking facilities.
The purpose was to warn of the dangers of such facilities.
He stated that covered parking structures, underground
or overground, present a more difficult security problem
than surface lots because of visibility and opportunity
problems.
In his deposition testimony, Zacaria Simantob (whom
plaintiff’s papers describe as being “from [defendant]
Arman”),3 stated that the subject garage had a camera but
it did not function because Arman was not legally
required to have a functioning camera. In an answer to an
interrogatory propounded by plaintiff, Arman asserted
that pursuant to the contract between Apcoa and Arman,
Apcoa is responsible for injuries occurring in the parking
garage and Arman is not responsible.
Other evidence was presented by plaintiff. Coast Sav-
ings’ records show that the branch of that institution
where the parking garage in question is located had nine
robberies, including an armed robbery, between February
1991 and February 1994, with two occurring in 1991, four
3 Mr. Simantob is a general partner of Arman.
App. 50
in 1992, two in 1993 (January and August), and one in
January 1994. An injury occurred in one of the robberies.
b. Defendant Apcoa’s Evidence
Apcoa presented a declaration from the aforemen-
tioned retired police chief, Robert McGowan. He stated
he is a self-employed security consultant, working in that
capacity for nine years. He has investigated or overseen
investigations for many parking lot assaults and has been
retained as an expert witness on 29 matters involving
parking lots and structures. On September 7, 1994 (17
months after the assault on plaintiff), he inspected the
subject parking facility and found its size to be around
200 feet by 225 feet. It has 79 parking spaces. He found
the lighting “sufficient to clearly view from one side of
the garage to the other in any direction.” Although there
are support columns in the garage, they “do not seriously
obstruct the overall view of the garage from any point
within the garage.” There is an electronically operated
gate for vehicles entering the garage, two passenger ele-
vators to the building lobby, and a stairwell to the lobby.
McGowan offered several opinions. He stated that
because there are at least three entrances to the garage
through which an assailant can enter, and because people
come and go during the business day, “there is no effec-
tive way to prevent a person from entering the garage or
to confirm each person’s identity and reason for entering
the garage.” Closing the garage door is not effective
because a person can wait for a car to pass through the
gate and then walk into the garage while the gate is
closing, or enter in a vehicle himself if he is a tenant.
App. 51
There is no way to completely guard against the type of
assault experienced by plaintiff. Because of the small size
of the garage, the “minimal or no criminal activity,” the
relatively unobstructed view throughout the garage, and
the presence of drivers coming and going, posting a
security guard would be an unreasonable burden on
defendants. The bank robberies at Coast Savings are “not
an indication that there is any greater likelihood of a
sexual assault crime occurring in the subterranean
garage” because the bank premises are located “on the
other end of the structure from the entrance to the park-
ing garage and the behavior of a bank robber is to imme-
diately escape the area where his crime is committed, not
to lie and wait for a victim.”
Regarding the matter of whether Apcoa was respon-
sible for security provisions in the underground parking
area, Arman’s general partner Zacaria Simantob stated in
his deposition that he did not think Apcoa and Arman
have an agreement for Apcoa to provide security services
for the underground parking garage. A copy of the con-
tract between Arman and Apcoa was presented to the
trial court. The contract Provides for Apcoa to manage
the underground garage as well as two surface lots, one
located at the building premises and one located nearby.
Apcoa is to act as the exclusive manager of the three
parking facilities, as an independent contractor, and
“manage, supervise, and Operate” them for Arman.
Regarding the underground garage, Apcoa is to “super-
vise the proper and efficient parking” therein. Apcoa is
required to supply and pay a full time parking attendant
(for the surface lots) and purchase at its own expense,
licenses and “all appropriate insurance as is generally
rs
App. 52
provided in connection with the operation of Parking
Facilities.” Insurance includes “fire, theft, property dam-
age, minimum garage keeper’s liability of $250,000, and
[workers’] compensation. Appropriate insurance shall be
deemed to be a comprehensive general liability insurance
policy with a single liability limit of $1,000,000 for bodily
injury and property damage.” The bodily injury insur-
ance is for both Apcoa’s employees and others. The con-
tract also contains indemnity provisions benefiting
Arman in connection with Apcoa’s management of the
parking facilities.
Zacaria Simantob’s declaration states Arman pur-
chased the subject building in 1982 and he, together with
other general partners, is responsible for managing it. He
knows of no attack on anyone in the parking garage from
the day the partnership purchased the building until the
assault on plaintiff. He was informed of the bank rob-
beries but has never known any of the robberies to
involve criminal activity in the garage. He did not state
when he was informed of the robberies.*
ISSUE ON APPEAL
The critical issue in this case is whether defendants
owed a duty of care to plaintiff with respect to the secu-
rity of the commercial parking garage owned and oper-
ated by them.
4 However, as discussed below, a landowner has a duty to
“exercise reasonable care to discover that criminal acts are being
or are likely to be committed on its land.” (Ann M. v. Pacific
Plaza Shopping Center, supra, 6 Cal.4th at pp. 679-680 (hereinafter
“Ann M.”).)
aaa
+ ae
App. 53
DISCUSSION
1. Standard of Review
To prove that she has a valid cause of action against
defendants for negligence, plaintiff must show (1) defen-
dants owed her a duty of care, (2) defendants breached
that duty, and (3) she suffered injuries which were prox-
imately caused by defendants’ breach of duty. (Ann M.,
supra, 6 Cal.4th at p. 673.) In an appeal from a summary
judgment, the order granting the motion for summary
judgment must be reviewed de novo. (Price v. Wells Fargo
Bank (1989) 213 Cal.App.3d 465, 474.) A motion for sum-
mary judgment is properly granted where “all the Papers
submitted show that there is no triable issue as to any
material fact and that the moving party is entitled to a
judgment as a matter of law.” (Code Civ. Proc., § 437c,
subd. (c).) A defendant meets “his or her burden of
Showing that a cause of action has no merit if that party
has shown that one or more elements of the cause of
action, even if not separately pleaded, cannot be estab-
lished, or that there is a complete defense to that cause of
action.” (Id., subd. (0).) If the defendant meets this bur-
den, “the burden shifts to the plaintiff . . . to show that a
triable issue of one or more material facts exists as to that
cause of action or a defense thereto.” (Ibid.) The respon-
sibility of the trial court is to discover whether the liti-
gants possess evidence which would require the
weighing procedure of a trial. (Miller v. National Broad-
casting Co. (1986) 187 Cal.App.3d 1463, 1478.) The affi-
davits of the moving party- are Strictly construed and
those of the opposing party liberally construed, and any
doubt as to whether the motion should be granted results
App. 54
in the denial of the motion. (Michael J. v. Los Angeles
County Dept. of Adoptions (1988) 201 Cal.App.3d 859, 866.)
As we have already noted, the resolution of this
appeal primarily involves the question whether defen-
dants owed a duty of care to the plaintiff, given the
factual circumstances shown by the evidence when that
evidence is examined under the foregoing standards.
2. The Concepts of “Duty” and “Foreseeability” in
Negligence Law
Civil Code section 1714 states in relevant part:
“Every one is responsible, not only for the result of his
willful acts, but also for an injury occasioned to another
by his want of ordinary care or skill in the management
of his property or person, except so far as the latter has,
willfully or by want of ordinary care, brought the injury
upon himself.” This duty of care enunciated in section
1714 is a fundamental principle. (Rowland v. Christian
(1968) 69 Cal.2d 108, 112.) “[I]t is clear that in the absence
of statutory provision declaring an exception to [this]
fundamental principle . . . no such exception should be
made unless clearly supported by public policy. [Cita-
tions.] [{] A departure from this fundamental principle
involves the balancing of a number of considerations; the
major ones are [1] the foreseeability of harm to the plain-
tiff, [2] the degree of certainty that the plaintiff suffered
injury, [3] the closeness of the connection between the
defendant's conduct and the injury suffered, [4] the moral
blame attached to the defendant’s conduct, [5] the policy
of preventing future harm, [6] the extent of the burden to
the defendant and consequences to the community of
a
WAR Nie ee tee as 0a ance Sar
App. 55
imposing a duty to exercise care with resulting liability
for breach, and [7] the availability, cost, and prevalence of
insurance for the risk involved.”5 (Id. at pp. 112-113.)
“The foreseeability of a particular kind of harm plays a
very significant role in this calculus [citation]... . ”
(Ballard v. Uribe (1986) 41 Cal.3d 564, 573, fn. 6.)¢
“[A]lthough the plaintiff’s status as a trespasser, licensee,
or invitee may in the light of the facts giving rise to such
status have some bearing on the question of liability, the
status is not determinative.” (Rowland, Supra, at p. 119.)
The rules just stated have general application to neg-
ligence cases. The existence of a duty of care and its
scope, i.e., its boundaries, are questions of law to be
determined by the trial court on a case-by-case basis.
(Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d
112, 124, modified in part on another point in Ann M,,
supra, 6 Cal.4th at p. 679, and disapproved on another
point in Ann M. 6 Cal.4th at p- 678.) When examined by
an appellate court, duty and Scope are reviewed de novo.
(Ann M., supra, 6 Cal.4th at Pp. 674.) Duty “ ‘is a shorthand
° In subsequent portions of this opinion, we refer to these
enumerated considerations as the “Rowland factors.”
© Foreseeability “is an elastic factor”; the degree of
foreseeability necessary to warrant finding a duty of care varies
in each case depending on how great or small the burden of
preventing the harm, and whether there are strong public policy
reasons for preventing the harm. The greater the burden of
Preventing harm, the higher degree of foreseeability that may
be required before a duty is imposed, absent other strong public
policy factors. Likewise, the lighter the burden of preventing
harm, the lower the degree of foreseeability required for the
imposition of a duty. (Ann M., supra, 6 Cal.4th at pp. 678-679;
Gomez v. Ticor (1983) 145 Cal.App.3d 622, 629-630.) ‘
App. 56
statement of a conclusion, rather than an aid to analysis
in itself... . But it should be recognized that “duty” is not
sacrosanct in itself, but only an expression of the sum
total of those considerations of policy which lead the law
to say that the particular plaintiff is entitled to protec-
tion.’ (Prosser, Law of Torts, [3d ed. 1964] at pp.
332-333.)” (Dillon v. Legg (1968) 68 Cal.2d 728, 734.)
Landowners are required to “maintain land in their
possession and control in a reasonably safe condition.”
(Ann M., supra, 6 Cal.4th at p. 674 [citing Civ. Code,
§ 1714 and Rowland v. Christian].) “In the case of a land-
lord, this general duty of maintenance, which is owed to
tenants and patrons, has been held to include the duty to
take reasonable steps to secure common areas against
foreseeable criminal acts of third parties that are likely to
occur in the absence of such precautionary measures.
[Citations.].”7 (Ibid.; italics added)
The several Rowland factors are considered “in deter-
mining the existence and scope of a [landowner’s] duty
in a particular case.” (Ann M., supra, 6 Cal.4th at p. 675,
fn. 5.) Regarding the primary factor of foreseeability, a
landowner’s “duty to take affirmative action to control
the wrongful acts of a third party will be imposed only
where such conduct can be reasonably anticipated. [Cita-
tions.] [{] In this, as in other areas of tort law, fore-
seeability is a crucial factor in determining the existence
of duty. [Citations.]” (Id. at pp. 676-677; accord Dillon v.
Legg, supra, 68 Cal.2d at p. 739 [foreseeability of risk is of
7 The Ann. M. court found that the duty to protect from
wrongful acts of third persons also benefits employees of
commercial tenants. (Ann M., supra, 6 Cal.4th at p. 675.)
SE AMMA Mig ALA LG HAS 2
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are
App. 57
primary importance unless there are overriding policy
considerations].) However, a landowner has a duty “to
exercise reasonable care to discover that criminal acts are
being or are likely to be committed on its land.” (Ann M.,
supra, 6 Cal.4th at p. 679.)
We have previously stated that the existence and
scope of a defendant's duty of care are questions of law
for the court to determine. Likewise, “Foreseeability,
when analyzed to determine the existence or scope of a
duty, is a question of law to be decided by the court.
[Citations.]”8 (Ann M., supra, 6 Cal.4th at p. 678.) Thus, it
also is examined de novo by the reviewing court. In Isaacs
v. Huntington Memorial Hospital, supra, 38 Cal.3d at p. 124,
the court relied on the Restatement Second of Torts, sec-
tion 344, comment (f), to detail the “foreseeability” cir-
cumstances under which the duty of a landowner to
protect others from the wrongful acts of a third party
arises-” ‘Since the [owner of land] is not an insurer of the
visitor’s safety, he is ordinarily under no duty to exercise
any care until he knows or has reason to know that the
acts of the third person are occurring, or are about to
occur. He may, however, know or have reason to know,
from past experience, that there is a likelihood of conduct
on the part of third persons in general which is likely to
8 The jury also considers the matter of foreseeability,
however in “two more focused, fact-specific settings. First, the
jury may consider the likelihood or foreseeability of injury in
determining whether, in fact, the particular defendant’s conduct
was negligent in the first place. Second, foreseeability may be
relevant to the jury’s determination of whether the defendant’s
negligence was a proximate or legal cause of the plaintiff’s
injury.” (Ballard v. Uribe, supra, 41 Cal.3d at p. 573, fn. 6.)
App. 58
endanger the safety of the visitor, even though he has no
reason to expect it on the part of any particular individ-
ual. If the place or character of his business, or his past
experience, is such that he should reasonably anticipate
careless or criminal conduct on the part of third persons,
either generally or at some particular time, he may be
under a duty to take precautions against it, and to pro-
vide a reasonably sufficient number of servants to afford
a reasonable protection.’ ” (Italics omitted.)
Legal foreseeability does not mean what one court
described as “objective foreseeability,” i.e., “the logical
opposite only of impossibility.” (Sturgeon v. Curnutt
(1994) 29 Cal.App.4th 301, 306.) Using objective fore-
seeability, “[o}]n a clear day you can foresee forever. [Cita-
tion.]” (Id. at p. 307.) Thus, courts temper objective
foreseeability with subjective reasonableness and apply
this “reasonably foreseeabie” standard in calculating
whether a defendant owed a plaintiff a duty of care,
thereby “bring[ing] imposition of duty in line with practi-
cal conduct.” (Id. at pp. 306-307.) The court determines
whether “the degree of foreseeability is high enough to
charge the defendant with the duty to act on it.” (Id. at p.
307.) However, “ ‘foreseeability is not to be measured by
what is more probable than not, but includes whatever is
likely enough in the setting of modern life that a reason-
ably thoughtful [person] would take account of it in
guiding practical conduct.’ (2 H er & James, Law of
Torts [1956] § 18.2, at p. 1020.)” (wigbee v. Pacific Tel. & Tel.
Co. (1983) 34 Cal.3d 49, 57.)
a ee
ag
App. 59
3. The Ann M. Case
Defendants rely heavily on Ann M. to support the
judgment, and the record shows the trial court considered
that case in making its decision. In Ann M., the court
rejected, in part, its previous unanimous ruling in Isaacs v.
Huntington Memorial Hospital, supra, 38 Cal.3d 112 (here-
inafter “Isaacs”), regarding whether, in a suit against a
landowner which is prompted by the criminal acts of-a
third person, it is necessary for the plaintiff to show
“prior similar incidents” of a criminal nature in order to
Prove foreseeability of harm and hold the landewner
responsible for the injuries suffered by the plaintiff at the
hands of the third person. The Ann M.-court stated that
the rule announced in Isaacs regarding “prior similar
incidents” needed “refinement.” (Ann M., supra, at p.
678.) In Isaacs, the court had concluded that when an
analysis of a case is made to determine whether the
defendant had a duty of care to the plaintiff, the fore-
seeability factor should be examined using all the circum-
stances of the case, rather- than only focusing on the
existence or nonexistence of prior similar incidents on the
premises, the existence of which would be helpful in
determining foreseeability but not necessary to find fore-
Seeability. (Isaacs, supra, 38 Cal.3d at pp. 126-129.) In
Isaacs, the court determined that the “prior similar inci-
dents” test of foreseeability is “fatally flawed” for several
reasons. It “leads to results which are contrary to public
policy” because it discourages landowners from protect-
ing premises they know are dangerous, and it gives land-
Owners a “free” assault, robbery, vandalism or other
attack upon a plaintiff-victim before they can be held
liable for such acts occurring on the’. >--rerty. Moreover,
App. 60
such a rule lets courts come to different conclusions as to
how similar in nature, close in time, and close in prox-
imity the prior incident must be. Additionally, equating
foreseeability of a particular act with the existence of
previous similar incidents had already been rejected in
negligence cases involving accidents. (Id. at pp. 125-126.)
In Ann M. however, the court concluded that it was
justified in revisiting the Isaacs “totality of the circum-
stances” rule for determining foreseeability.? (Ann M.,
supra, 6 Cal.4th at p. 678.)
In Ann M., the court addressed the narrow question
of whether the owner of a strip mall shopping center, in
fulfilling its duty to maintain the common areas of its
premises in a reasonably safe condition, must provide secu-
rity guards for those areas. The court determined that on
the facts of the case before it, the scope of duty owed by
the defendant to the plaintiff did not include providing
security guards for the common areas of the shopping
center. The court based its conclusion on the absence of
prior incidents similar to the one which injured the plain-
tiff. Plaintiff had been raped while working in a store in
the shopping center. The store, a photo processing ser-
vice, was located in a secluded area of the shopping
° Noting that several appellate courts had criticized the
Isaacs court’s “apparent abandonment” of the “prior similar
incidents” rule, the Ann M. court stated, “Unfortunately,
random, violent crime is endemic in today’s society. It is
difficult, if not impossible, to envision any locale open to the
public where the occurrence of violent crime seems improbable.
Upon further reflection and in light of the increase in violent
crime, refinement of the rule enunciated in Isaacs . . . is
required.” (Ann M., supra, 6 Cal.4th at pp. 677-678.)
App. 61
center. The shopping center generally contained about 25
commercial tenants. The lease between the Photo process-
ing service and the defendant owner of the strip mall
gave the defendant the right to police the common areas
of the mall, but did not impose a duty on the defendant
to do so. The plaintiff was raped, and the store robbed, at
8 a.m. There was evidence that prior to the assault, there
had been incidents of bank robberies, robberies of shop-
pers, violent purse snatchings, break-ins and assaults by
a man who would come up behind women shoppers and
pull down their pants. The defendant responded with
evidence that its records contained no references to vio-
lent criminal acts in the shopping center prior to the rape
of the plaintiff and that it was defendant's standard prac-
tice to record instances of violent crimes. There was also
evidence that prior to the rape, employees and tenants in
the shopping center were concerned about their safety
because of transients who loitered in the common areas;
and the police had been called twice about such persons.
The tenants discussed hiring foot patrols but determined
it would be too expensive. They asked defendant to pro-
vide patrols but defendant de-lined. Ultimately, the ten-
ants hired a security company to drive by the center
several times a day. Plaintiff was raped thereafter. There
was no evidence that the rapist was a loitering transient.
Noting that landlords have a duty to take reasonable
steps to secure the common areas of their property
against foreseeable criminal acts of third Parties (Ann M.,
supra, 6 Cal.4th at p. 674), the court stated that the heart
of the case before it was whether the defendant “had
reasonable cause to anticipate that criminal conduct such
as rape would occur in the Shopping center premises
App. 62
unless it provided security patrols in the common areas.” (Id.,
at p. 676; italics added.)?° In revisiting Isaacs, the court set
down two general rules regarding a landowner’s duty to
provide security guards. First, because of the expense, the
social impact (i.e., the monetary effect on small busi-
nesses in high crime areas, where residents are often not
able to bear the rise in the cost of goods and services
necessary to pay for security patrols), and the vagueness
of how many patrols are necessary to curb crime, “a high
degree of foreseeability is required in order to find that the
scope of a landlord’s duty of care includes the hiring of
security guards.” (Id. at p. 679, emphasis added.) Second,
this “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.” (Ibid., fn. omitted;
italics added.) However, the court left open the “pos-
sib[ility] that some other circumstances such as immedi-
ate proximity to a substantially similar business
establishment that has experienced violent crime on its
premises could provide the requisite degree of fore-
seeability.” (Ibid., fn. 7.)
The Ann M. court found that the evidence presented
by the parties in that case precluded a finding that violent
criminal assaults were sufficiently foreseeable to impose a
duty on the landlord to provide security guards in the
common areas. First, even assuming the landlord knew of
10 Indeed, review was granted in Ann M. for the expressed
and limited purpose of determining “whether the scope of the
duty owed by the owner of a shopping center to maintain
common areas within its possession and control in a reasonably
safe condition includes providing security guards in those areas.”
(Ann M., supra, 6 Cal.4th at p. 670; italics added.)
a
App. 63
the previous criminal activities at the shopping center,
they were not similar in nature to the crime plaintiff
suffered - rape. Second, none of the plaintiff’s other
evidence (the presence of transients and the statistical
crime rate in the surrounding area) was “sufficiently
compelling to establish the high degree of foreseeability
necessary t© impose upon [the landlord] a duty to pro-
vide security guards in the common areas.” (Ann M.,
supra, 6 Cal.4th at p. 680.)
Thus, Ann M. is a case which considers when the
scope of a landlord’s duty of care to keep its property in a
reasonably safe condition will include the duty to provide
security guards to protect persons against crime perpe-
trated by third parties. The Ann M. court (1) set a specific
level of foreseeability (i.e., a high degree of foreseeability)
and (2) prescribed how that level of foreseeability must
be shown (by prior similar incidents or something
equally compelling). However, Ann M. did not totally
rewrite Isaacs on the issue of prior similar incidents, but
only addressed that issue vis-a-vis the claimed necessity
of a specific preventative measure: security guards. (Ann
M., supra, 6 Cal.4th at PP. 670, 673, 674, 676, 679, 680.)
Ann M. thus does not preclude the application of Isaacs’s
directive to analyze foreseeability using the totality of
circumstances in a case where those circumstances
include, as they do here, such factors as an inherently
dangerous premises and a history of prior {although not
similar) criminal acts on nearby premises.
App. 64
4. The Issue Left Unresolved By Ann M.
Our conclusion that a lack of prior similar incidents
is not dispositive of this appeal is supported not only by
Ann M.’s narrow focus on the existence of a duty to
provide security guards, but also upon the fact that the
court expressly left open the question of “whether some
types of commercial property are so inherently dangerous
that, even in the absence of prior similar incidents, pro-
viding security guards will fall within the scope of a
landowner’s duty of care.” (Id. at p. 680, fn. 8.)!}
Although the court phrased the question only in terms of
a duty to provide security guards, the basic issue it left
unresolved is whether certain types of commercial prem-
ises may be so inherently dangerous as to present a
reasonable foreseeability that crimes against customers or
tenants will be committed by third persons if the land-
owner does not take reasonable preventative measures
which may or may not include security guards. The court
specifically mentioned two particular types of such com-
mercial property — all-night convenience stores and park-
ing garages. The court stated that the plaintiff had
“offered no evidence to show that, like a parking garage or
an all-night convenience store, a retail store located in a
shopping center creates ‘ “an especial temptation and oppor-
tunity for criminal conduct.” ’ ”12 (Ibid., italics added.)
11 This express reservation by the Ann M. court is
significant but has been ignored by our dissenting colleague.
12 The record in this case reflects a recognition that parking
structures are tempting to criminals. Apcoa’s own expert
testified that parking garages are potential places for criminals
to lie in wait, and they present more difficult security problems
: than surface parking lots.
App. 65
In the instant case, we deal with a violent crime
committed in just such a commercial location, and so are
squarely presented with the issue left open by Ann M. We
address that issue by looking at the total circumstances
presented by this case, with our primary focus upon the
nature, character and condition of the particular premises
(i.e., a commercial parking garage’) as well as the history
of criminal activity in or about such premises. If we find,
given all of the circumstances, that the assault on plaintiff
was reasonably foreseeable then we must look to the
remaining Rowland factors to determine if the defendants
had any duty of care to plaintiff to protect her from the
criminal acts of third persons, whether by use of security
guards or some lesser means of deterrence.
5. The Inherently Dangerous Nature of Commercial
Parking Structures and the Issue of Foreseeability
of Harm
Ann M. was not the first case to recognize that com-
mercial parking structures may be dangerous places
when it comes to criminal conduct. Gomez v. Ticor, supra,
145 Cal.App.3d 622 (hereinafter “Gomez”) is a wrongful
death case brought by relatives of a person shot and
killed one night when he entered the parking garage of
the defendant's office building and came upon a robbery
'S In our analysis of this issue, we do not include single-
level, uncovered surface parking lots because their physical
characteristics do not present the level of danger, discussed
infra, which is inherent in a covered parking garage.
App. 66
in progress. The Gomez court addressed “the fore-
seeability of armed robbery in an office building’s com-
mercial parking structure and the existence of minimal
precautions to protect the patrons thereof.”14 (Id. at pp.
625-626.) In doing so, the court stated: “in its very opera-
tion of a parking structure, defendant may be said to
have created ‘an especial temptation and opportunity for
14 In Gomez, the plaintiffs introduced evidence of “the
general unsafe character of the neighborhood” and of fourteen
thefts and four other nonviolent crimes that occurred in the
building within three years prior to the murder. Additionally,
they presented evidence that the security system which was
supposed to monitor the parking garage was not functioning on
the night of the attack (the intercom that connected the parking
attendant with the security booth in the lobby of the building
was “habitually turned off at the lobby console,” the camera
that monitored the entry ramp used by the assailants was not
working, and the gate to the entry ramp was generally left open
at night). (Gomez, supra, 145 Cal.App.3d at p. 626.) The court did
not find that the evidence regarding the general unsafe
character of the neighborhcod would “establish sufficient
foreseeability to warrant the imposition of a duty.” (Id. at p.
628.) However, it found that based on the evidence of the many
previous crimes on defendant’s premises in the past three years,
theft and vandalism “appear to have been foreseeable in the
parking structure” and therefore it may also have been
foreseeable that a patron of the parking structure would come
upon such a crime and himself be subject to an act of violence.
(Ibid.)
The Gomez court concluded that the foreseeability of such
an attack was a question of fact for the jury. (Gomez, supra, 145
Cal.App.3d at p. 628.) This conclusion was rejected by Ann M.,
which as noted above, reaffirmed that when foreseeability is
being analyzed to determine the existence or scope of a duty of
care, it is a question of law to be determined by the court. (Ann
M., supra, 6 Cal.4th at p. 678.)
App. 67
criminal misconduct,’ thus increasing the foreseeability of
the attack. (Prosser, Torts (4th ed. 1971) p. 174.) In making
this observation, we note the unique nature of a parking
complex, which invites acts of theft and vandalism. In
such structures, numerous tempting targets (car stereos,
car contents, the cars themselves) are displayed for the
thief; high walls, low ceilings and the absence of the cars’
owners allow the thief or vandal to work in privacy and
give hir. time to complete his task. Such circumstances
increase the likelihood of criminal misconduct. In addi-
tion, the deserted, labyrinthine nature of these structures,
especially at night, makes them likely places for robbers
and rapists to lie in wait. Robbery, rape, and violent
consequences to anyone who interrupts these crimes,
may thus also be foreseeable.” (Id. at Pp. 628, italics
added.)!5
This descriptive language from Gomez captures the
essence of the physical characteristics of the average com-
mercial parking structure. Like the Gomez court, we find
that the peculiar characteristics of commercial parking
garages, to which the general public necessarily has full
and easy access, increases the likelihood of many types of
criminal activity and thus increases the foreseeability of
crime in general.1© (Gomez, supra, 145 Cal.App.3d at p.
° Citing Gomez, the Supreme Court in Isaacs noted the
magnetic effect that parking garages have on the criminal
element. (Isaacs, supra, 38 Cal.3d at p. 130.)
16 We expressly exclude from this finding, multi-residential
Parking garages which have restricted access and may not
necessarily present the problems associated with the public
commercial garage. In addition, for the reasons noted in
footnote 13, ante, we also exclude single-level, uncovered
fe
App. 68
628.) Given the opportunity these structures present for
criminals to prey on persons utilizing them, the recent
history of ever increasing numbers of criminal assaults
occurring in such structures,’” the fact that due to their
very nature and their location on private property they
are not patrolled by the police,'* and taking into account
the physical conditions presented at this particular location as
well as its recent history of criminal activity, including at least
seven serious felonies (robberies) at the adjacent bank premises
during the two year period preceding the assault on plaintiff,
we hold, as a matter of law, that a high degree of fore-
seeability existed that patrons of the defendants’ commer-
cial parking garage might become victims of third person
criminal assaults, such as robberies, shootings, rapes, or
some other form of physical aggression. We necessarily
surface parking lots. That is not to say, as our dissenting
colleague incorrectly assumes, that such parking lots or
structures may not in a specific case present similar problems.
We simply do not have any reason to consider them here. We
have excluded them because we expressly limit our analysis and
holding to public commercial parking structures.
17 See, e.g., Lee, Lots Of Trouble-Courts Begin To Award
Damages To Victims Of Parking-Area Crime, Wall Street Journal
(Apr. 23, 1997), p. Al, col. 6.
18 This obvious and undisputed characteristic of the
commercial parking structure seriously undercuts the argument
of our dissenting colleague to the effect that it is unfair to the
owners and operators of commercial parking structures to
impose upon them the crime prevention burden which, under
ordinary circumstances, should be a public responsibility. One
of the reasons that parking structures are considered to be
inherently dangerous is that they are on private property and
are not policed except to the extent that those parties making a
profit from their operation can be persuaded to do so.
App. 69
further hold that, given all of such circumstances, specific
evidence of prior similar criminal misconduct is not
required in order for the defendants to have a duty to
provide reasonable preventative measures which,
depending on the total circumstances, might or might not
include security guards. "
6. Analysis of The Other Rowland Factors for
Determining Existence and Scope of Defendants’
Duty of Care
Having found foreseeability in this case, which is a
primary Rowland factor in determining both duty and its
scope, we next determine whether this foreseeability,
when balanced with other Rowland factors, shows defen-
dants had a duty to provide reasonable security measures
to protect plaintiff.19 We address those Rowland factors
which are most relevant when liability is sought to be
imposed on owners and managers of commercial parking
structures. Those factors are the availability and cost of
insuring against the risk, the policy of preventing future
harm, the moral blame in the defendant's conduct, and
the burden to defendant and the community of imposing
a duty to provide security measures and requiring lia-
bility for breach of the duty. Do these factors, when
balanced with the high degree of foreseeability of crime
in general which we have found with respect to defen-
dants’ commercial parking structure, cause us to con-
clude that defendants owed plaintiff a duty of care to
'? A foreseeable injury does not necessarily compel the
conclusion tnat a duty of care exists. (Sturgeon v. Curnutt, supra,
29 Cal.App.4th at p. 306.)
App. 70
undertake reasonable security measures in order to pro-
tect her from foreseeable third party criminal acts? We
find they do.
The evidence in this case shows defendants have
already provided between themselves for the purchase of
liability insurance for bodily injury and damage to prop-
erty. Liability insurance has presumably been purchased
by Apcoa and its cost has presumably already been
passed on to tenants utilizing the parking facilities for
themselves and their customers and clients. Indeed, there
is no indication that such insurance is not generally avail-
able to owners and managers of parking structures.
Next, there is a strong public policy which favors the
prevention of future harm in defendants’ commercial
parking garage. While the Gomez court found in 1983 (the
year that case was decided), that “[p]arking structures are
relatively new fixtures in ‘the setting of modern life’,”
(Gomez, supra, 145 Cal.App.3d at p. 629) this is not the
case anymore. Absent sufficient and desirable mass tran-
sit, parking garages are, and will continue to be, as com-
mon as vehicles themselves. They are an entrenched part
of our lives, whether in shopping malls, educational insti-
tutions, sports facilities, government complexes, or the
work environment. The need for such facilities can hardly
be avoided, especially given California’s love affair with
the automobile and its lack of effective mass transporta-
tion. Therefore, they should be made to be both func-
tional and safe. However, as they are located on private
property, they are not routinely, or even sporadically,
patrolled by the police. It must be the responsibility of
the owners and operators of commercial parking garages
or structures to make them reasonably safe for use by
App. 71
tenants and visitors. Public policy dictates that persons
who profit from owning or managing facilities, which by
their very nature create “an especial temptation and
opportunity for criminal conduct,” should supply at least
the minimal amount of security warranted under the
particular circumstances of the case. Whether or not there
is moral blame attached to defendants’ conduct in the
way they operated and managed the parking garage, the
finding of a duty of care furthers public safety.
As for the economic consequences of such a duty of
care, there is no evidence that the cost of providing
sufficient protection cannot reasonably be passed on to
the persons who utilize the parking garage.2° For exam-
ple, there is no evidence that such tenants cannot bear the
added expenses themselves or pass it along to their cus-
tomers. The “cost” of parking should include its entire
cost, ..cluding reasonable security measures. Further, it is
more reasonable to have all persons utilizing a commer-
cial parking structure pay for the economic cost of secu-
rity, and thereby realize the benefit of that security, than
it is to make an individual user bear the physical and
emotional cost of a criminal act which results from an
owner’s or manager’s failure to employ sufficient crime
deterrence measures. (Cohen v. Southland Corp. (1984)
157 Cal.App.3d 130, 142-143.)
Defendants argue that there was “no effective way”
to keep out persons who might engage in criminal con-
duct and that any requirement for the posting of a
20 According to the plaintiff's complaint, those persons are
the tenants of the associated office building.
App. 72
security guard would impose “an unreasonable burden.”
With respect to the first point, it is not necessary to
succeed in order to persevere. That the task of making the
garage reasonably safe might well have been difficult of
achievement, cannot justify doing nothing. As to the sec-
ond point, there is nothing in the record, other than the
conclusionary declaration of one of defendants’ experts,
to demonstrate that any “unreasonable burden” would
necessarily be involved; as we have already noted, it is
not at all clear that security guards would have been
required. The record does demonstrate that defendants
were operating a commercial parking garage which, by
its very nature and actual condition, presented an unrea-
sonable risk of harm to its patrons, It is this circumstance
which results in the imposition of a duty of care.
We have concluded that a criminal assault on plain-
tiff was reasonably foreseeable and, after consideration of
the other relevant Rowland factors, we hold that defen-
dants owed to plaintiff a duty of care to provide reason-
able security.
7. Breach Of Duty And Causation
Whether the defendants have breached their duty to
plaintiff by a failure to provide security guards or some
lesser security measures will be a question of fact for the
jury,?' unless the state of the evidence permits the trial
2! Lesser security measures might include, for example,
parking attendants who provide maintenance to the garage and
check for loitering (thereby providing a “presence” in the
garage); closed circuit monitoring utilizing cameras together
App. 73
court to resolve the issue as a matter of law. As the court
noted in Cohen v. Southland Corp., imposing a duty to
make an all-night convenience store “reasonably safe
against criminal activity is not coincident with requiring
the hiring of armed guards. Rather, a jury could deter-
mine the duty was more than adequately fulfilled by the
less onerous, relatively inexpensive robbery and/or vio-
lence deterrence measures described in the Southland-
commissioned study... . ” (157 Cal.App.3d at p. 142.)
with sufficient posted signs to let a would-be criminal know
that his actions, including dismantling the cameras, will be
detected (the monitoring might possibly be done at a panel at
which more than one parking structure is monitored); gates and
secured doors; strong lighting, and motion sensitive lights. The
court in Frances T. v. Village Green Owners Assn. ( 1986) 42 Cal.3d
490, 503 recognized that lighting can help deter criminal
conduct. In Slapin v. Los Angeles International Airport (1976) 65
Cal.App.3d 484, 488 the court stated: “That a mugger thrives in
dark public places is a matter of common knowledge.
[Citations.].” Slapin involved a personal injury suit stemming
from an attack on the plaintiff in a parking lot which the
plaintiff contended was made dangerous by insufficient
lighting. In Lopez v. McDonald's Corp. (1987) 193 Cal.App.3d 495,
514, the court recognized that security cameras are designed to
deter crime “because of the potential of identification and
capture.” In Gomez, supra, 145 Cal.App.3d at pp. 632-633, the
court stated: “the peculiar attraction which a large commercial
building’s unattended parking structure poses for the criminal
may necessitate some minimal human or mechanical means of
protecting patrons. . . . Indeed, we are convinced that a
monitored parking complex is an infinitely safer place than one
which is vacant and unattended.” Additionally, a parking,
garage which is regularly maintained (cleaned, light bulbs
replaced, etc.) gives the appearance that an attendant may
appear at any time while one which is left unkempt and dark
has just the opposite effect.
App. 74
Based upon evidence which will doubtless, and perhaps
necessarily, include informed expert opinion, a jury can
properly decide what security measures were reasonably
required when it reviews the facts of the case and deter-
mines whether the plaintiff met her burden of proving
the defendant’s breach of duty and causation.22 “Once a
court finds that the defendant was under a duty to pro-
tect the plaintiff, it is for the factfinder to decide whether
the security measures were reasonable under the circum-
stances. [Citation.] The jury must decide whether the
security was adequate.” (Isaacs, supra, 38 Cal.3d at p. 131;
accord Cohen v. Southland Corp., supra, 157 Cal.App.3d at
pp. 142-143; Gomez, supra, 145 Cal.App.3d at p. 633 [the
Gomez court noted that the duty of protecting parking
structures “may be fulfilled by various means, and the
sufficiency of these means may often be decided by ‘a lay
jury, after the fact.’ [Citation.]”].)
22 The jury will analyze the totality of circumstances of the
case to determine breach and causation. These include factors
such as the history of crime in the whole of the premises,
including the parking garage; the nature of the parking
structure itself (e.g., number, size, and layout of parking floors,
and whether they are above or below ground); the predominant
use made of the parking garage (whether used primarily for
purposes where there is a continuous turnover of parking
activity [such as at a shopping mall] or for longer-term parking
[such as by persons going to their place of employment] ); the
nature of the surrounding neighborhood; the effectiveness of
the security measures present when the plaintiff was injured, or
the lack of any security measures; and other relevant factors in
the case.
App. 75
CONCLUSION
The criminal assault on plaintiff was reasonably fore-
seeable and the defendants owed a duty of care to plain-
tiff to provide reasonable security in their commercial
parking garage.*> Whether the defendants, in their man-
agement and operation of the garage, met their duty to
plaintiff, and if not, whether the breach of that duty was a
substantial factor in plaintiff’s injuries are issues which
will have to be addressed on remand.
DISPOSITION
The judgment is reversed and the cause is remanded
for further proceedings consistent with the views
expressed herein. Costs on appeal to plaintiff.
CERTIFIED FOR PUBLICATOIN
CROSKEY, Acting PJ.
I concur:
ALDRICH, J.
23 Defendant Arman’s duty of care exists because it owns
the garage. As for defendant Apcoa, there was sufficient
evidence of a contractual duty to act as exclusive manager of the
parking structure and “manage, supervise, and operate” it,
including supplying liability insurance.
App. 76
I respectfully dissent. I would affirm the trial court's
ruling.
The majority has replaced the concept of duty based
on foreseeability with an “inherently dangerous” condi-
tion theory. The majority finds that commercial parking
structures, while never specifically defined,’ are “inher-
ently dangerous;” and, by their very nature, facilitate the
commission of and increase the likelihood of crime. Even
though an owner or operator of a commercial parking
structure provides sufficient safety measures on a prop-
erty with no history of prior criminal acts, the majority
opinion automatically imposes a duty as a matter of law.
This is contrary to established case law.
The issue of duty is a question of law for the court to
decide (Ann M. v. Pacific Plaza Shopping Center (1993) 6
Cal.4th 666, 674); primarily on the basis of foreseeability.
(Id. at p. 676.) Landlords have a duty to reasonably secure
common areas against foreseeable criminal acts of third
parties. (Id. at p. 674.) However, the majority has now
held that it is foreseeable as a matter of law that criminal
conduct will always occur in such parking structures.
Under the majority opinion, all commercial parking
structure cases will go to the jury, which will+then only be
required to decide if the duty of care was breached and if
that breach was the legal cause of the plaintiff's damage.
The better rule is the one adopted by our Supreme Court
in Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th
1 The majority specifically excludes from this definition
singie-level, uncovered surface parking lots and private multi-
residential parking garages which have restricted access.
App. 77
666 which found there was no duty based on a lack of
foreseeability. In that case, the issue was “whether [the
landlord] had reasonable cause to anticipate that criminal
conduct such as rape would occur in the shopping center
premises unless it provided security patrols in the com-
mon areas.” (Id. at p. 676.) Since the cost of providing
security guards was significant, the court held 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. To hold otherwise
would be to impose an unfair burden upon landlords
and, in effect, would force landlords to become the
insurers of public safety, contrary to well-established pol-
icy in this state.” (Id. at p. 679, fn. omitted.) In my
opinion, this is the test we should be using in this case.
We should not be determining duty based on “inherently
dangerous” properties. Rather we should be examining
the record to ascertain if there have been prior similar
incidents of violent crime in the parking structure.
The majority opinion means that owners of these
newly identified “inherently dangerous” properties or
businesses now have a higher responsibility than the rest
of society to prevent criminal behavior. I believe this is
too harsh a rule and it will penalize landowners for the
inability of society to control crime since, “(ujnfor-
tunately, random, violent crime is endemic in today’s
society. It is difficult, if not impossible, to envision any
locale open to the public where the occurrence of violent
crime seems improbable.” (Ann M. v. Pacific Plaza Shop-
ping Center, supra, 6 Cal.4th at p. 678.) As the court stated
in Nola M. v. University of Southern California (1993) 16
Cal.App.4th 421, 437-438, “Police protection is, and in our
ie
App. 78
view should remain, a governmental and not a private
obligation. Landowners in high-crime areas ought not to
be forced out of the area or out of business altogether by
an imposition of liability to the victims of violent crimes
which the police have been unable to prevent. [Citation].”
We know that “[a]n action in negligence requires a
showing that the defendant owed the plaintiff a legal
duty, that the defendant breached the duty, and that the
breach was a proximate or legal cause of injuries suffered
by the plaintiff.” (Ann M. v. Pacific Plaza Shopping Center,
supra, 6 Cal.4th at p. 673.) We also know that the “exis-
tence of a duty is a question of law for the court” (id. at p.
674), and that “foreseeability [of the risk] is a crucial
factor in determining the existence of duty.” (Id. at p.
676.) It is also true that landowners must maintain their
land in a reasonably safe condition and “[i]n the case of a
landlord, this general duty of maintenance, which is
owed to tenants and patrons, has been held to include the
duty to take reasonable steps to secure common areas
against foreseeable criminal acts of third parties that are
likely to occur in the absence of such precautionary mea-
sures.” (Id. at p. 674, emphasis added.) “[A] duty to take
affirmative action to control the wrongful acts of a third
party will be imposed only where such conduct can be
reasonably anticipated.” (Id. at p. 676, emphasis added.)
“[T]he scope of the duty is determined in part by balanc-
ing the foreseeability of the harm against the burden of
the duty to be imposed.” (Id. at p. 678.)
I believe the majority opinion would have detrimen-
tal, unintended consequences. Although the majority tries
to exclude certain types of parking facilities from its
holding and analysis, its expansive opinion will be used
App. 79
to argue that any parking structure, whether commercial
or residential, is “inherently dangerous.” I do not see any
principled distinction between an “inherently dangerous”
commercial parking structure and “private multi-residen-
tial parking garages with restricted parking” which the
majority excludes from its analysis. Any “dangerous con-
ditions” which could be found in a commercial parking
garage will also be found in a “private multi-residential
parking garage”.
The majority relies on Gomez v. Ticor (1983) 145
Cal.App.3d 622 which describes “dangerous conditions”
in commercial parking garages as places where:
“numerous tempting targets (car stereos, car contents, the
cars themselves) are displayed for the thief” and “high
walls, low ceilings and the absence of the cars’ owners
allow the thief or vandal to work in Privacy and give him
time to complete his task.” (Id. at p. 628.) The Gomez court
noted that the “deserted, labyrinthine nature of these
structures, especially at night, makes them likely places
for robbers and rapists to lie in wait. Robbery, rape, and
violent consequences to anyone who interrupts these
crimes, may thus also be foreseeable.” (Ibid.) Clearly each
element of danger which could be present in a commer-
cial garage could also be present in a multi-residential
parking garage.
Whether the parking structure is residential or com-
mercial, the following hypothetical shows the weakness
in the majority’s opinion. For 30 years Mr. Jones has
owned a commercial parking structure which adjoins a
dental office. There is a gate at the entrance of the park-
ing structure and an employee who gives out tickets to
enter. The parking structure is open from 8 a.m. to 5 p-m.
App. 80
There has not been a criminal event in the parking struc-
ture during the 30 years Mr. Jones has owned it. Under
the majority’s reasoning, Mr. Jones’s commercial parking
structure is “inherently dangerous,” and Mr. Jones cannot
prevail at the summary judgment stage on the basis of
duty even though no criminal activity has ever occurred
on the property.
The fallacy of the majority’s analysis is further illus-
trated when we compare Mr. Jones’s dental office parking
structure with a 100-unit apartment complex with a
multi-level parking structure, where the residents come
and go 24 hours a day. The majority finds that the dental
office parking structure is “inherently dangerous” while
the 100 apartment parking structure is not. It would
appear the dental office parking structure is safer than
the apartment parking structure, although this is exactly
the opposite of what the majority holds.
Furthermore, my colleagues find that the parking
structure in this case is “inherently dangerous” based
solely on the features of commercial parking structures as
emphasized in Gomez. If we were to follow this line of
reasoning, then all subways, all hallways in office or
residential buildings, all parking garages in residential
and commercial buildings, all parking structures at sports
events, and all movie theaters, for example, would be
inherently dangerous because of their mere existence.
Other examples abound; I need not go on.
As one commentator has noted: “Because all busi-
nesses attract crime to some extent, they could all be
characterized as ‘inherently dangerous.’ At various times,
courts have described parking facilities, [Gomez v. Ticor,
App. 81
supra, 145 Cal.App.3d at p. 628] all-night laundromats,
[Castillo v. Sears, Roebuck & Co. (Tex. App. 1983) 663
S.W.2d 60, 66] emergency room facilities, [Isaacs v. Hunt-
ington Memorial Hosp. (1985) 38 Cal.3d 112, 129] banks,
[Stalzer v. European Am. Bank (New York 1982) 448
N.Y.S.2d 631, 635] and college dormitories [Mullins v. Pine
Manor College (Mass. 1983) 449 N.E.2d 331, 335] as being
facilities that attract crime. The mere fact that a crime has
occurred almost always allows one to draw the conclu-
sion, after the fact, that the premises were inherently
dangerous. Moreover, any duty premised on the idea that
the business attracts crime . . . ignores the fact that many
such businesses are economically viable precisely because
they do not require any on-site labor. Once proprietors
are forced to provide security guards at all-night laun-
dromats or at bank teller machines, those operations
cease to become profitable. It serves no one to impose a
duty which, rather than protecting customers, forces the
businesses which they frequent to close. One could also
foresee prohibitively high insurance premiums on busi-
nesses which have enjoyed an absence of crime in the
past but which are considered inherently dangerous by
insurance companies. Although these considerations
should be used when dealing with a duty to install sim-
ple, inexpensive security measures, . . . they should not
be sufficient to require landlords to employ expensive
security measures, such as private patrol forces.” (When
Crime Pays: Business Landlords’ Duty to Protect Cus-
tomers from Criminal Acts Committed on the Premises
(1990) 31 S. Tex.L.Rev. 89, 112-113).
- App. 82
Our Supreme Court has stated that “[w]hen deciding
whether to expand a tort duty of care, courts must con-
sider the potential social and economic consequences.”
(Macias v. State of California (1995) 10 Cal.4th 844, 859.)
The majority has not considered the apparent conse-
quences of its opinion.
I would affirm the trial court’s ruling.
KITCHING, J.
SRA ON BOO OEE ~
, eos RO er
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