Premises Liability and Criminal Conduct

It’s a dark, quiet night. As Mary Jones walks from the parking lot to her apartment, a rapist lurks in the shadows and attacks her. She is brutally assaulted. She survives the attack but her injuries are severe.

The person who assaulted Mary is arrested and convicted but is judgment-proof. Mary files suit against her landlord, who is not only well heeled but is also well insured. What are Mary’s chances of winning damages?

Case law provides that in appropriate circumstances a plaintiff may recover damages for harm caused by the criminal act of a third party on the defendant’s premises. However, there are two particularly formidable hurdles in such actions: duty and causation. The duty issue involves an inquiry into whether the defendant property owner is required to take preventive measures to avoid or minimize third-party criminal acts. A property owner’s duty depends in large part on foreseeability.

The second hurdle is causation: Was the defendant’s failure to take the specified preventive measures a substantial factor in causing the plaintiff’s injuries?

Is There a Duty?

As a general rule, there is no duty to protect others from the conduct of third parties. Nevertheless, the courts have carved out an exception to this general principle when the “defendant stands in some special relationship to either the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of that conduct.” (Delgado v. Trax Bar & Grill, 36 Cal. App. 4th 224, 235 (2005).)

Courts have found that such a “special relationship” exists between business proprietors of shopping centers, restaurants, and bars, and their tenants, patrons, or invitees (Ann M. v. Pacific Plaza Shopping Center, 6 Cal. App. 4th 666, 673 (1993)). Accordingly, the “general duty of maintenance” owed to tenants and patrons 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., 6 Cal. App. 4th at 674).

Whether a duty exists in a particular case is a question of law for a court to decide, and as such is particularly amenable to resolution by summary judgment (Delgado, 36 Cal. App. 4th at 237–238).

In determining the existence and scope of a duty to protect, a court considers several factors, including: (1) the foreseeability of harm to the plaintiff, (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 imposing a duty to exercise care with resulting liability for breach, and (7) the availability, cost, and prevalence of insurance for the risk involved (Castaneda v. Olsher, 41 Cal. App. 4th 1205, 1213 (2007)).

Although there are many factors, foreseeability and the extent of the burden to the defendant are ordinarily the crucial considerations (Sharon P. v. Arman, Ltd., 21 Cal. App. 4th 1181, 1189–1190, & n. 2 (1999)).

Typically, courts resolve the existence and scope of a defendant’s duty by balancing the foreseeability of the harm against the burden of the duty imposed. When the burden of preventing future harm is great, a high degree of foreseeability may be required. On the other hand, if 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 (Ann M., 6 Cal. App. 4th at 678–679). The state Supreme Court has described this process as a “sliding-scale balancing formula” (Delgado, 36 Cal. App. 4th at 243).

The court must identify the specific action or actions the plaintiff claims the defendant should have taken. “Only after the scope of the duty under consideration is defined may a court meaningfully undertake the balancing analysis of the risks and burdens present in a given case to determine whether the specific obligations should or should not be imposed on the landlord.” (Castaneda, 41 Cal. App. 4th at 1214.) Duty is determined by a balancing of “foreseeability” of the criminal acts against the “burdensomeness, vagueness, and efficacy” of the proposed security measures (Ann M., 6 Cal. App. 4th at 678–679).

The full analytical process entails several steps. First, the court considers the plaintiff’s contention as to the safety measures that the defendant should have taken to prevent the harm. This part of the analysis frames the issue by defining the scope of the duty under consideration. In short, the question is, how much should the defendant have done to prevent the plaintiff’s injury?

Second, the court must analyze how financially and socially burdensome the proposed measures would be to a landlord. These could range from minimally burdensome to significantly burdensome under the facts of a given case.

Third, the court identifies the nature of the third-party conduct that the plaintiff claims could have been prevented had the landlord taken the proposed measures, and then it assesses how foreseeable (on a continuum from a mere possibility to a reasonable probability) it was that this conduct would occur. Once the burden and foreseeability have been independently assessed, they can be compared in determining the scope of the duty the court imposes on a given defendant. The more certain the likelihood of harm, the higher the burden a court will impose on a defendant to prevent it; the less foreseeable the harm, the lower the burden a court will place on a defendant. Although other factors may come into play in a particular case, “the balance of burdens and foreseeability is generally primary to the analysis.” (Castaneda, 41 Cal. App. 4th at 1214.)

Significantly, when the burden of preventing future harm caused by third-party criminal conduct is great or onerous, the court will require more foreseeability before imposing it. Thus, if the plaintiff contends that the defendant had a legal duty to provide guards, bright lighting, stronger fences, security cameras, and to conduct periodic walk-throughs by trained personnel, the court will demand “heightened” foreseeability, demonstrated by prior similar criminal incidents or other indications of a reasonably foreseeable risk of violent criminal assaults in the location under scrutiny (Delgado, 36 Cal. App. 4th at 243 & n. 24). Note, however, that the test in this regard is prior similar criminal incidents, not prior identical criminal incidents. (See Claxton v. Atlantic Richfield Co., 108 Cal. App. 4th 327, 339 (2003).)

On the other hand, in cases where the harm can be prevented by simple means or by imposing merely minimal burdens (such as when a plaintiff asserts the defendant had a duty to maintain and/or repair already existing doors and locks), only “regular” reasonable foreseeability triggers liability (Ambriz v. Kelegian, 146 Cal. App. 4th 1519, 1534 (2007)).

A recent case illustrates the practical application of these principles (Tan v. Arnel Management Co., 170 Cal. App. 4th 1087 (2009)). Yu Fang Tan arrived at his multi-building apartment complex around 11:30 p.m. Unable to locate an available parking space within the gated area of the complex, Tan parked in the leasing office parking lot outside the gates. As he was parking his vehicle, an unidentified man approached him and asked for help. When Tan opened his window, the man pointed a gun at him and ordered him to get out of the car because the man wanted it. Tan responded, “OK. Let me park my car first.” When the car moved, the assailant shot Tan in the neck, rendering him a quadriplegic.

Tan, along with his wife and son, brought suit against both the company that managed the apartment complex and the property owners. Before trial, the court ruled that three prior violent crimes against others on the property were not sufficiently similar crimes to the one perpetrated on Tan to make his assault foreseeable. The trial court therefore refused to impose a duty of care on the defendants. Tan appealed the decision.

The court of appeal reversed, in part because the justices concluded that the specific security measures proposed by Tan were minimal. Tan had suggested that in light of the previous assaults, the defendants should have (1) moved the existing security gates from the back of the access road, or (2) installed similar gates at the visitor and leasing office parking lots. The court of appeal also found the cost of the proposed security measures was not at all onerous (Tan, 170 Cal. App. 4th at 1099).

In addition, the court of appeal concluded that the evidence of three vicious criminal assaults in the common area of the property within two years of the attack on the plaintiff—although not involving a gun—nevertheless amounted to substantial evidence of a reasonably foreseeable risk of violent criminal assaults. In short, the evidence of prior incidents supported imposition of a duty to protect on the defendants’ part. The court of appeal reasoned that the trial court had set the bar too high to establish foreseeability, essentially requiring nearly identical prior criminal incidents. A more relaxed standard was appropriate, the court concluded, because the proposed security measures were not onerous (Tan, 170 Cal. App. 4th at 1101).

The Causation Hurdle

Causation is ordinarily a question of fact that cannot be resolved by summary judgment. The issue becomes a question of law only if, under undisputed facts, there is no room for a reasonable difference of opinion (Ambriz, 146 Cal. App. 4th at 1531–1532).

To prove causation, a plaintiff must show that the defendant’s act or omission was a “substantial factor” in bringing about the claimed injury. To meet this burden, a plaintiff cannot simply criticize the defendant’s security measures.

Instead, as a series of appellate court decisions have established, the plaintiff must show the injury was actually caused by the failure to provide appropriate measures. (See Noble v. Los Angeles Dodgers, Inc., 168 Cal. App. 3d 912 (1985) [plaintiffs assaulted in the Dodger Stadium parking lot showed only “abstract negligence” without proof of a causal connection between the defendant owner’s breach and the plaintiffs’ injury]; Constance B. v. State of California, 178 Cal. App. 3d 200 (1986) [plaintiff failed to submit evidence showing that additional lighting would have prevented the attack]; Nola M. v. University of Southern California, 16 Cal. App. 4th 421 (1993) [plaintiff attacked and raped on a college campus failed to prove additional security measures would have prevented the attack]; Leslie G. v. Perry & Associates, 43 Cal. App. 4th 472 (1996) [plaintiff raped in parking garage of apartment complex; no evidence that the assailant had entered through the broken gate, or that the gate was the only means of entry into the garage of the apartment building].)

The Supreme Court embraced the reasoning of these decisions in Saelzler v. Advanced Group 400 (25 Cal. App. 4th 763 (2001)). In that case, the plaintiff was assaulted while attempting to deliver a package at an apartment complex. She alleged that better security measures would have prevented the assault. The court explained that because the assailants were unidentified, the plaintiff could not demonstrate that their entry on the premises was unauthorized or that the failure to provide gate security or functioning locked gates was a substantial factor in causing her injuries. The court also rejected as entirely speculative the plaintiff’s claim that her injuries could have been avoided had the defendants hired roving security guards to patrol the entire premises during the day (Saelzler, 25 Cal. App. 4th at 776–777).

These cases notwithstanding, a plaintiff may use circumstantial evidence to show an assailant took advantage of a defendant’s security lapse in the course of committing an attack, and that the lapse was a substantial factor in causing the injury. But in doing so, the plaintiff must show that the inferences favorable to him or her are more reasonable or probable than those against (Leslie G., 43 Cal. App. 4th at 483.)

Instructive is the Ambriz case, cited above. In that case, the plaintiff was assaulted and raped by an intruder at her apartment complex. Directly addressing the causation issue, albeit in the context of the “case-within-a-case” analysis of an attorney-malpractice action, the court of appeal found that the inferences from the circumstantial evidence on causation created a triable issue of fact precluding summary judgment.

For example, there was evidence that a number of entry doors to the buildings were not closing properly and were not locking. Despite numerous complaints, the doors were not repaired prior to the plaintiff’s rape. There also was evidence of numerous instances in which the rapist and other male “intruders” gained access to the inside of the building prior to the rape. In addition, a police detective testified that police found no evidence of forced entry into the building at the time of the rape.

The defendants countered by suggesting the assailant might have entered the building in any number of ways. A tenant could have let the assailant in; or entry could have been through a door that had been propped open by another resident; a sliding-glass door on a ground-floor patio or an unlocked window could have been an entry point as well, as could a second-floor balcony door or window. But the court found that “considering the lack of evidence supporting any of these other methods of entry, it is more likely that the assailant entered through a door that failed to lock than by any of these alternative methods.” (Ambriz, 146 Cal. App. 4th at 1537.)

Additionally, the identity of the attacker was known; he was a transient who did not live at the complex and whom the plaintiff had seen inside her building on more than ten occasions prior to the attack. The court thus inferred his entry was unauthorized.

The Ambriz court concluded by noting the Saelzler opinion itself recognized that circumstantial evidence is useful for inferring how an attacker likely gained access: “Eyewitnesses, security cameras, even fingerprints or recent signs of break-ins or unauthorized entry may show what likely transpired at the scene.” (Ambriz, 146 Cal. App. 4th at 1538 [quoting Saelzler].)

Safety First

Duty and causation issues are often formidable hurdles for a plaintiff seeking to recover damages for harm caused by the criminal act of a third party on a defendant’s premises. The duty question in particular invites a defense motion for summary judgment, and in appropriate cases a causation issue can be summarily adjudicated as well. Consequently, counsel for plaintiffs and defendants alike should focus on developing evidence pertinent to these issues from the very outset of litigation. And for property owners, there is another lesson: Don’t wait for a summons and a complaint. If security problems become evident, take reasonable steps to deal with them before someone gets hurt, not after.