Petition for Writ of Certiorari — Sharon P. v. Arman, Ltd.

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Text

Supreme Court, U.S.

rie Dp -

(V)

991659 MAR 15 2000

No. OFFICE OF THE CLERK

In The

Supreme Court of the United States

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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.

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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.

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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.

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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.)

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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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Petition for Writ of Certiorari — Sharon P. v. Arman, Ltd. · 530 U.S. 1243 | Frix