If you have been assaulted on the property of another person, do you have a claim for damages against the property owner under California Law? This is an interesting question and one in which there has been some recent developments as far as case law. This can be summarized as follows:
The Duty to Protect Against Criminal Acts
In Ann M. v. Pacific Plaza Shopping Center, 6
Cal.4th 666, 25 Cal.Rptr.2d 137 (1993), in which an employee of a business in a strip mall was raped in her store during business hours by an unknown assailant, the California Supreme Court established guidelines for determining whether in a given case, a commercial landlord has a duty to take steps to prevent third-party criminal activity on the premises. .Refining. its prior analysis in Isaacs v. Huntington
Memorial Hospital, 38 Cal.3d 112, 211 Cal.Rptr. 356 (1985), the court rejected the notion that the proper test was the totality of the circumstances without regard to whether there had been prior similar incidents on the premises. Instead, the court concluded that duty is determined by balancing the foreseeability of the criminal act complained of against the burdensomeness of the security measures proposed to prevent that act. Only if the former outweighs the latter will the landlord have a duty to undertake those measures. The court, however, stacked the deck against those claiming the existence of such a duty. Because, in the court.s view, the proposed security measures in Ann M. . i.e. the hiring of security guards . will .rarely, if ever, be found to be a .minimal burden,.. the court concluded that .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,. and 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. Thus, to establish a duty after Ann M., the focus was almost entirely on whether .prior similar criminal acts. had occurred on the subject premises. If no such acts, then no duty. Significantly, however, the court did not entirely close the door on presenting other evidence, aside from prior similar criminal acts, that .could provide the requisite degree of foreseeability. necessary to impose a duty. Most notably, in separate footnotes, the court recognized that .immediate proximity to a substantially similar business establishment that has experienced violent crime on its premises could provide the requisite degree of foreseeability,. as could .some types of commercial property [such as parking garages or all-night convenience stores] [that] are... inherently dangerous..... These .exceptions. to its Ann M. test were recently addressed by the court in Sharon P. v. Arman Ltd.,21 Cal.4th 1181, 91 Cal.Rptr.2d 35 (1999). Sharon P., who was sexually assaulted at gunpoint in an underground parking garage at the office building where she worked, presented no evidence of the type (i.e. prior similar criminal acts on the premises) required by Ann M., as there had been no assaults in the garage for ten years. She did, however, present evidence which she contended made her assault .highly foreseeable. within the meaning of Ann M. This evidence included the type left open by one of the Ann M. footnotes, i.e. evidence of prior similar criminal acts near but not on the subject premises (plaintiff presented evidence of 363 crimes, including
two rapes, in the immediately surrounding 50 block area during the previous year, plus evidence of seven robberies in the bank immediately above the parking garage during the previous two years). It also included evidence that the parking garage was dark and that lights and a security camera in the garage were not working. In addition to this evidence, plaintiff argued, based on the other Ann M. footnote, that parking garages are .inherently dangerous. so as to create a duty even without any prior criminal acts. Despite this evidence, the trial court in Sharon P., applying the Ann M. test, granted the landowner.s motion for summary judgment, finding that the
assault on plaintiff was not highly foreseeable because there was no evidence of the type . i.e.
prior similar criminal acts on the premises required by Ann M. The Court of Appeal, however, reversed the summary judgment, focusing on the second Ann M. footnote and holding that, despite the absence of prior similar crimes on the premises, the requisite .high degree of foreseeability. was established by the fact that underground parking garages are .inherently
dangerous.. A dissenting justice expressed concern that the majority was departing from the Ann M. standard and was instead imposing a strict liability standard. The California Supreme Court reversed the Court of Appeal and reinstated the summary judgment. The court addressed the .inherently dangerous. issue it had left open in Ann M. and rejected inherent danger as a substitute for prior similar crimes as a means of establishing that plaintiff.s assault was highly foreseeable. Absent any statistical evidence that parking garages are in fact more dangerous than other types of property, the court was .reluctant. to assume this was so and to .single out garage owners. for imposition of the burdens of hiring security guards. Moreover, the court was concerned that holding garages to be inherently dangerous would be opening the door to virtually limitless litigation over what other types of property could also be characterized as
.inherently dangerous... The Supreme Court also rejected plaintiff.s argument based on the other Ann M. footnote that the evidence of the other crimes in the area and the bank robberies directly above the garage established the .high degree of foreseeability. necessary to create
a duty to provide security guards. The crimes in the area were unavailing because there was no evidence that they occurred sufficiently near the parking garage to make crimes at that location foreseeable, nor was there evidence that the garage owner knew about them. As for the bank robberies, the court held that they did not involve violent attacks upon anyone. and, therefore were not sufficiently similar to the sexual assault inflicted upon plaintiff to establish a high degree of foreseeability that someone would be assaulted in the garage. Finally, the court addressed the balancing of the burdens and the foreseeability. test enunciated in Ann M. While acknowledging that the lesser the burden (i.e. the lesser the security measures that plaintiff asserts were necessary), the lesser the degree of foreseeability necessary to establish a duty to
undertake those measures, the court suggested that, in practice, the foreseeability would rarely outweigh the burden, since even lesser security measures have considerable costs and impose a significant burden on the landowner. Thus, to establish a duty after Sharon P., plaintiffs
cannot rely on a theory of .lesser measures,. but they also do not necessarily have to prove .prior similar criminal acts on the premises. (as was the case after Ann M.) in order to establish the high degree of foreseeability necessary to create a duty. While proof of such acts is still the optimal situation, absent such evidence, plaintiffs can establish foreseeability by
presenting evidence of prior criminal acts near the premises and evidence that the landowner knew about them. As the concurring opinion in Sharon P. states, .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 immediately proximity... But such acts must be sufficiently
similar to the crime committed on the plaintiff, and must have occurred sufficiently near the subject premises, to enable the court to conclude (unlike the court in Sharon P.) that their occurrence made the crime to plaintiff .highly foreseeable. The Sharon P. guidelines appear to have been further eroded, or at least blurred, in Valencia v. Michaud, 79 Cal.App.4th 741, 94 Cal.Rptr.2d 268 (2000). Valencia did not involve any prior criminal acts at all. The nine year-old was stabbed by the visiting adult son of two tenants in defendant's apartment building who had not previously committed any crimes, but merely acted strange by walking the halls day and night, giving plaintiff's mother ugly looks, and turning the doorknobs on the locked front door to [plaintiff's mother's] apartment. Notwithstanding the Supreme Court.s refusal in Sharon
P. to find that prior bank robberies make a later assault on the same premises foreseeable, the Court of Appeal in Valencia held that conduct that was not even criminal, just strange, made the later stabbing sufficiently foreseeable to impose a duty on the landowner to remove the strangely-behaving individual from the premises. Furthermore, whereas the court in
Sharon P. questioned whether any security measure was so minimally burdensome
as to substantially lessen the high degree of foreseeability necessary before a duty could be established, Valencia held that removing the strangely-behaving individual was such a minimally burdensome measure so that the landowner's failure to do so subjected it to liability. Thus, Valencia appears to grant leeway in two of Sharon P's principal holdings, i.e. that plaintiffs can establish foreseeability without proof of prior similar criminal acts on the premises if they can
prove the occurrence of such acts near the premises, and that plaintiffs who cannot establish a duty to undertake significant security measures (like guards) will rarely be able to establish a .back-up duty to undertake lesser measures. Valencia suggests that establishing the latter may not be as difficult a task in practice as the Sharon P. court believed, and that the former can be established even where there was no prior criminal conduct at all, only strange non-criminal behavior. It appears that only inherent danger (i.e. strict liability) has been eliminated as
a potential source of premises liability in third-party criminal acts cases.
Foreseeability, and hence duty, can be established not only by prior similar criminal
acts, but by such acts near the premises, and even by noncriminal acts. It also appears that other courts may not share the Supreme Court.s skepticism about a plaintiff's ability to prove that a landowner must provide, if not guards, at least minimal security measures. Whether the Landowner’s Breach of the Duty Caused the Criminal Act In other cases, a duty may exist but
there is a question whether the breach of that duty legally caused the attack on the plaintiff. This situation typically occurs when the criminal is not caught and the plaintiff cannot prove how he gained access to the premises, and so cannot prove that the particular security measures
would have prevented the crime. The seminal case on the causation issue is Nola M. v. University of Southern California, 16 Cal.App.4th 421, 20 Cal.Rptr.2d 97 (1993). Plaintiff was attacked and raped in front of a building on the USC campus. The university admitted it had a duty to provide adequate security; in its opinion, the court .simply assume[d] the evidence
is sufficient to support breach. and proceeded .directly to causation, the critical issue in this case.. Noting that .[v]ery little has been written about the sort of proof it takes to establish causation in third party cases,. the court set out to identify that proof. Plaintiff presented expert testimony that the university.s security patrol was deficient in the number of security officers, the
use of foot patrols rather than just patrol cars, and the discretion given to individual officers as to where to patrol. The court concluded that such deficiencies were not a legal .cause. of the attack on plaintiff because her expert did not, and on the facts of this case could not, say that 2 or 10
or 20 more guards or other security measures could have prevented Nola.s injuries: We think it comes down to this: When an injury can be prevented by a lock or fence or a chain across a driveway or some other physical device, a landowner's failure to erect an appropriate barrier can be the legal cause of an injury inflicted by the negligent or criminal act of a third person. [citations] But where, as here, we are presented with an open area which could be fully protected, if at all, only by a Berlin Wall, we do not believe a landowner is the cause of a physical assault it could not reasonably have prevented. Leslie G. v. Perry & Associates, 43 Cal.App.4th 472, 50 Cal.Rptr.2d 785 (1996), was to the same effect (not surprisingly, since it was decided by the same appellate division that decided Nola M.). There, plaintiff was raped in the garage of her
apartment building. Because the rapist was not caught, plaintiff was unable to establish exactly how he gained entry to the garage. Plaintiff.s security expert testified that .[t]he facts of this case seem to indicate that the security gate to the lower garage was defective on the evening [of
Leslie.s rape] in that it would not fully close and allowed the [rapist] to gain access to the parking structure and lie in wait for [Leslie] to pull into her parking space. Again, the court rejected this testimony holding that .an expert's uncorroborated speculation is insufficient to establish causation. In this case, no one (other than the rapist, who has never been caught) knows
how the rapist got into or out of the garage. Although the three access doors to the garage were found closed on the day after Leslie's rape, no one knows whether they were closed or propped
open on the night of the rape. No one knows whether the rapist followed another tenant in through the front door and then found his own way down to the garage. No one knows whether the rapist somehow obtained a key to the premises (he could have found a lost key or stolen
one from another tenant). These unknowns are significant because, had the gate been operating properly, the rapist still could have entered the garage. Moreover, even if it had been working, he could have entered through the security gate itself by waiting outside for a car to enter, ducking beneath the closing gate, and hiding in the garage as he apparently did on the night of Leslie.s rape. [citations] In short, there is simply no evidence from which to infer causation.
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Since there is no direct evidence that the rapist entered or departed through the broken gate (or even that the broken gate was the only way he could have entered or departed), Leslie cannot survive summary judgment simply because it is possible that he might have entered
through the broken gate. [citations]. The court expressed some dissatisfaction with this result, noting that whether a victim recovers or not, and whether a landowner has to pay or not, turns on quixotic considerations, and that there is no consistency in these cases and that, in our view, simply isn't fair. Nevertheless, absent any other judicial or legislative pronouncement on the subject, Nola M. and Leslie G. are law on causation. Nola M. and Leslie G. provided a .way
out. of liability for landowners who, even clearly in breach of a duty to provide security, were fortunate enough to have a victim who could not prove that the attack would not have occurred but for the breach. This way out stood uncontested until the recent case of Saelzler v. Ad-
The Court of Appeal reversed, holding that the complete absence of required security measures is sufficient to create a triable issue this breach of duty was a contributing cause of crimes committed at the unsecured location. The court questioned whether causation was even the
issue at hand, suggesting that .if proof of causation were the issue, property owners indeed would be liable for having failed to provide even costly security measures where the plaintiff was lucky enough to have testimony from the perpetrator stating he would not have committed the
crime were those precautions in place. Instead, the Saelzler court saw the issue as the reasonableness of [requiring the landowner to undertake] enhanced security measures.. Unlike the Nola M. court, which was concerned about .the cost of imposing a duty to provide reasonable security measures on property owners, the Saelzler court was concerned about .the cost of not
imposing such a duty[:] More murders, vanced Group 400, 77 Cal.App.4th 101, 92 Cal.Rptr.2d 103 (1999).
In Saelzler, by a 2-1 majority, a different division of the same appellate court that
decided Nola M. and Leslie G. severely criticized the analysis and strict causation proof required by those cases. In Saelzler, plaintiff, a Federal Express employee, was severely beaten by three men while attempting to make a delivery at a 28-building apartment complex in a crimeridden,
gang-infested area. Plaintiff presented .overwhelming evidence of prior criminal acts on the premises (establishing a clear duty to provide security precautions, and that the property owner flagrantly failed to provide any security at all during the daylight hours when plaintiff was attacked, even more clearly establishing a breach. Nevertheless, the trial court, feeling bound by Nola M. and Leslie G., despite particularly troubling facts, reluctantly granted summary judgment because plaintiff could not prove that the proposed security measures would have
prevented the crime of rapes, robberies, assaults, and the like. Citing fundamental tort principles, rather than analyzing the cases in terms of causation and eliminating those cases in which the plaintiff could not prove causation, the court stated that the proper inquiry is whether the landowner provided a reasonable type and amount of security under the circumstances, and that courts must allow a certain liberality to the jury in drawing its conclusion. on this issue.
Thus, .[w]hen a property owner supplies no security whatsoever to say nothing of when it falls below the standard of care appropriate to the threat of crime on the premises logic and common
sense tell us absence of security is a contributing cause of most crimes occurring on that property. Because the property owner [in Saelzler] completely failed any test of reasonableness by supplying no security at all, it was, in the court's view, a legal cause of plaintiff's injuries.
Any other result, said the court, would cause the duty to provide security precautions [to be] diminishe[d] just when those precautions are most needed. With Saelzler, plaintiffs finally had an articulate, precedential basis on which to argue against a Nola M./Leslie G. dismissal where they could not definitively establish causation. That basis, however, may be short-lived, as the California Supreme Court has granted review of Saelzler. The Supreme Court's ruling in Saelzler will no doubt be as eagerly awaited on the issue of causation as was its opinion in Sharon
P. on the issue of .duty.. ■
I have had success prosecuting these cases on behalf of many different clients in many different scenarios. These include: bar fights, bouncer assaults, assaults by other patrons or employees of night clubs, or other businesses. One of my recent cases involved a lady who was renting a storage facility. At the time she rented the storage area, she was advised that the facility had full time, surveillance cameras, working security gates, and an onsite security guard. None of this proved to be true other than the security guard, who clocked in and then left prior to the incident.
The bottom line is that this is a complicated area of the law. You need to retain a competent attorney that can "hit the ground running" and conduct a thorough investigation of the property and its owners. The history of prior incidents and other information will only be discovered through use of professionals. Furthermore, this type of evidence is "fleeting" and the longer you wait, the more chance witnesses and other evidence will be unavailable or lost. For all these reasons you should consult with an experienced California personal injury attorney to know your rights and to investigate the claim, quickly and thoroughly. For more information, you can go to our webpage on this subject: http://www.victimslawyer.com/sub/negligent-security.cfm