*1 Dist., Aрr. Div. One. D005003. Fourth 1988.] [No. al., S. et Plaintiffs and Appellants,
WILLIAM DONNELL al., Defendants OF LAW et WESTERN SCHOOL CALIFORNIA and Respondents.
Counsel Padilla, Thorsnes, Bartolotta, Ty Suuzen
Kevin McGuire & and Quinn, Anderson for Plaintiffs and Appellants.
Mclnnis, Rees, Chodzko, McIntyre, & James E. Gilson Fitzgerald, Sharkey & Heaton and R. Gilson for Defendants and Virginia Respondents. Opinion
KREMER, Nancy William (Donnell) appeal P. J.Plaintiffs Donnell summary defendants California Western School of Law judgment favoring security Lloyd its Liverman and Dennis (Cal Western), guard employee safety, Avery negligence, disregard on for conscious plaintiffs’ complaint We affirm infliction of emotional distress and loss of consortium. negligent summary judgment. I Cal Western runs a law school at Cedar complaint alleged: Donnell’s owns, in San it and controls. Cal Western Diego building possesses Street January at or near its law school. On for its students provides parking 30, 1984, library grounds and school were for student open Western’s Cal Western student William Don- use until About law midnight. p.m., library after in its and headed building studying nell left Cal Western’s Western’s walking along While the west side of Cal toward his car. parked attacked, stabbed and an unknown assail- injured by William building, but no to his security came help, personnel ant. William called for No had no exterior on its west side. lights assistance. Cal Western’s side. security guards building’s west patrolled activity occurred Defendants knew criminal had alleged: further lighting in the area but failed to negligently provide adequate immediate William, Students, security building. including around the law school area dangerous the law forced to traverse and from school were going Despite did not students. provide parking because Cal Western activity knowing perpetrated persons about criminal prior defendants did not warn William premises, around law school conditions, forces or safe- security otherwise dangerous provide adequate law students from criminal acts. guard school *4 His wife damages damages. William and sought compensatory punitive Nancy for loss of consortium. damages sought
II as a law de summary asserting matter of sought judgment, Defendants crimes on the duty occurring fendаnts William from legal had no to protect motion, the the parties agreed sidewalk. For of defendants’ public purposes of the About 10:30 on the following p.m. night facts were undisputed: attack, As the law left Cal Western’s to home. he left campus go William school, faculty to in Western’s parking William headed his car Cal parked Cedar, While sidewalk corner Third Avenue and lot. on the at the of eventual William the sound of broken William’s assailant was glass. heard building’s a car Third Avenue near the law school breaking parked into on 100 William feet to the car. jogged up northwest corner. William on the sidewalk.1 struggle, a the assailant stаbbed
During years. Third has been for more than five public Avenue used and presented 1We chased William around the car note Donnell evidence assailant eventually against dumpster at the northwest cor at him while William’s back slashed summary judgment, hearing At for ner of Cal land. defendants’ motion Western’s City [(1970) (87 argued: Cal.App.3d “Low 7 826 Donnell’s vs. Sacramento counsel of case, power to Cal.Rptr. 173)], Appellate control is the of a California Court stated that sense remedy guard against dangerous The factual instances of control prevent, conditions. operated dumpster and that William was this matter are that the dеfendants leased any leaning up against appellate briefs do issue stabbed . . . .” Donnell’s not assert while Instead, alleged liability. specifically involving dumpster for as the basis Cal Western’s city-owned duty exercise sidewalk to Donnell contends Cal Western had a to control over event, reasonably any injury Donnell identifies no prevent its students there. In evidence injuries. Fur connecting genesis of the assault or the cause of his dumpster itself to the ther, by Cal the en did not constitute control Western of presence dumpster the mere (Cf. City (1970) building. adjoining Low v. Sacramento tire 173].) Cal.Rptr. 826 [87 summary judg- motion for After the court defendants’ hearing, granted William had from protect held Cal Western ment. court bordering building. appeals, on the sidewalk criminal assault Wil- with relationships Western’s contending “coexisting” special two and landholder-business relationship liam—the school-student special reasonable, inexpensive to take invitee Cal Western relationship—required city- on the him foreseeable criminal assault measures to from protect disagree. the school. We bordering owned sidewalk Ill care, a duty “In one another several considering whether owes ‘ foreseeability others: weighed including among factors must “[T]he certainty that the suffеred degree plaintiff harm plaintiff, and the closeness of the connection between the defendant’s conduct injury, conduct, suffered, the blame to the defendant’s injury moral attached harm, the of the burden to the defend future extent policy preventing community ant to the exercise care consequences imposing breach, cost, availability, resulting prevalence with ’ risk v. San Francisco (Peterson of insurance for the involved.” [Citations.]” Community CollegeDist.
P.2d 1193].)
Generally duty a not a to control another’s con person does have However, may or to those who such conduct. a duct warn endangered may a rise to a to duty right arise where exists special relationship giving Dist., Community College (Peterson such v. San Francisco protection. supra, 36 Cal.3d 806.) at
IV We to out of the school- arising decline extend of law principles City v. Sch. Dist. (Hoyem minor student Manhattan Beach relationship 508, 1, 851]; Raymond 22 513 585 P.2d v. (1978) Cal.Rptr. Cal.3d [150 1, 10 (1963) Paradise School Dist. 218 Cal.App.2d Cal.Rptr. [31 Unified 278, 54 847]; Sleight 35]) Satariano v. 283-284 P.2d (1942) Cal.App.2d [129 safety to Cal Western a to insure its adult students’ once impose on they generally have left Cal Mature students are con premises. Western’s Community v. College invitees. San Francisco (Peterson sidered business Dist., 806, 3, 808-809; fn. cf. v. Sleight, 36 Cal.3d at Satariano supra, pp. 278, 54 to in 283: amount of care due minors supra, “[T]he to immaturity consequent danger.”) creases with their heedlessness Further, voluntarily Cal Western assumed a suggests in the record nothing duty to from criminal acts its protect premises. its students outside
720 197, 206 City Cal.Rptr. v. 32 Cal.3d (Davidson Westminster [185 San 894], City (1975) Cal.App.3d P.2d Hartzler v. Jose citing Cal.Rptr. 5].) [120
V may of another A to from the conduct right protection dangerous invitees. arise landholder its special relationship from between Dist., 36 Cal.3d at Community College (Peterson San Francisco Thus, extent Cal Western’s the issue here is the William. liability to its invitee or dangerous
“A defendant cannot be held liable the defective оwn, or control. Where possess, condition of which it property [does] control has been unequivocally the absence of or ownership, possession, established, Huntington Memorial summary (Isaacs judgment proper.” 653].) 695 P.2d Hospital (1985) take reasonable steps Donnell contends Cal Western had to giving to invitees criminal assaults on sidewalks its from foreseeable protect Cal liable building. immediate access to its Donnell seeks to hold Western Cal Western’s adjoining for a condition of a sidewalk dangerous asserting Cal Western had the “control” property, power on sidewalk. Donnell also building own to shine рlacing lights on its asserts Western have mounted exterior monitors perhaps should to view the area before permit dangerous walls students However, “con attempts expand principle it. traversing merely to include situations landowner adjoining trol” of where at Donnell in effect ability property. has the influence affect such *6 hold Cal Western for the condition tempts responsible dangerous to or only connection is the fact of “something ownership with which [its] [its] (1964) v. Pub. Market abutting use the land.” Grand Central (Kopfinger 852, 65, v. Kirby (1967) 60 858 P.2d Ross 529]; Cal.2d 389 Cal.Rptr. [37 601].) premises The law Cal.App.2d [59 merely hold Western liable because does extend so fаr as to Cal not next and it took no action adjoining property exists to property dangerous adjoining or the condition of such property. to influence affect A Market, as a In Central Pub. supra, Grand Kopfinger the business meat fell to operation, result the defendant merchant’s activities the dan- walkway defendant’s rendering sidewalk in the course of nonsuit, the held the defendant reversing In a court gerous to pedestrians. a affirmatively created its business activities be held liable because could which was on the sidewalk adjacent public condition physical dangerous by specifically distinguished The сourt timely remedied the defendant. not there is no that in the absence of statute cases to the effect the “numerous a abutting repair on the of land sidewalk occupant common-law (Id. in Kopfinger, 858.) plaintiff at Unlike maintain sidewalk.” business activities has evidence Cal Western’s Donnell no presented city-owned on the side- affirmatively a condition dangerous physical created walk.
B
affirmed an order
Kirby,
In Ross
court
the verdict.
judgment notwithstanding
defendants’ motion for
denying
in a
drainage
berm
Plaintiff
customer
tripped
private
prospective
defendants’ restaurant. De-
walkway
as one of the
serving
approaches
directly
had
door
onto
fronting
fendants
built the restaurant with its back
from
berm
adjoining
lot and three feet
which was
parking
public
from
on defendants’
Defendants invited
enter
property.
public
partly
lot,
ordinary
thus
“a
from the
parking
deriving
special
apart
benefit
walkway.”
of the
The berm benefited defend-
(Id.
accustomed use
Further,
their restaurant.
de-
property by preventing drainage
ants’
into
nonvisibility.
caused
berm’s
The decision Ross was
fendants’ activities
cases
the defect
“liability
consistent with structural defect
when
recognizing
owner,
or constructed
is caused
or when
altered
benefit
his
serves a use
from the
property
apart
specially
and accustomed
Unlike
ordinary
(Ibid.)
use
sidewalk. [Citations.]”
Ross,
has
evidence Cal Western caused
presented
no
plaintiff
condition on the
sidewalk and
evidence
dangerous physical
specifically
the sidewalk was
or built
benefit
Western’s
modified
ordinary
from
accustomed use.
or served a use
apart
property
C
Properties,
In
v. De La
Inc.
D Bakery Donnell’s reliance on Schwartz Helms Limited heavy 510, 430 In Schwartz 68], Cal.2d P.2d misplaced. nonsuit, that judgment holding by undertaking the court a reversed a truck the doughnut direct child to rendezvous with assigned safety. care for the In defendants assumed a to exercise due child’s liability, the court stated: “The discussing earlier cases involving premises not, however, term does area ‘thе physical encompassed premises’ lease.” (Id. to which the invitor title or a possesses coincide with the area However, the law of this Schwartz did p. 239.) language expand owned, beyond or controlled premises possessed those Instead, sum- merely the defendant. such the court’s language part liability, mary involving premises specifically including of earlier cases Market, Ross v. Central Pub. Kopfinger supra, Grand v. De La and Johnston Guerra Kirby, Inc., Properties, supra, may 394. court Schwartz stated the “premises” 28 Cal.2d *8 be than greater may the invitor’s “The include property: such means of as a ingress egress may reasonably customer expected Limited, use. The crucial element is control.” (Schwartz Bakery Helms “ 239, italics The court then supra, added.) from Johnston: ‘It is quoted . . . clear that if the tenant exercises control over a common passageway outside the leased he may become liable to his business invitees if premises, he fails to warn them of a dangerous existing condition thereon.’ (Johnston Inc., v. De La Guerra Properties, P.2d supra, 5].)” Ross, (Ibid.) Citing the court “An Kopfinger then stated: invitor bears a duty to warn an invitee a dangerous condition existing on street public which, or sidewalk his business adjoining because of the invitor’s speсial benefit, convenience, or use way, creates a public danger.” (Id. at pp. 239-240.) court Schwartz also it emphasized was established applying prem-
ises law to the unique facts before it involving mobile doughnut defendants, truck: may invitors, “It be argued that as business cannot incur to protect injury invitees from on a street. We have public pointed out, however, that the jury could have found that the dangerous circum- stances which injury Moreover, caused the were by created defendants. authorities we have cited above show that the of ‘business concept premises’ may longer be mechanically definеd area in geographical which the invitor holds a An property may interest. invitor injury, be liable for an whether it occurs on his or on a common passageway or on an adjacent benefit, if, if, sidewalk or street being used for his special only the injury condition, is caused aby harm, dangerous or unreasonable risk of within the invitor’s control. [Citation.]
“Defendants’ business consisted of selling bakery from a truck. In goods coming defendants, to the truck for the convenience of patrons used the streets public and sidewalks as means of access for benefit of special defendants’ business. may Defendants therefore be hеld liable for an injury occurring their customer in the vicinity immediate of the truck if the circumstances causing injury are within the range of defendants’ reason able supervision Obviously, and control. defendants are not insurers for all accidents occurring areas through which their truck passes. They may liable, not be held for a fall caused example, unobserved defect in a sidewalk next to which their truck They may be stops. responsible, how ever, truck, for harm in the occurring vicinity immediate it wherever time, may be at a if stopped given the harm is of the kind that defendants could have prevented by exercising safety reasonable care for the of their Limited, (Schwartz customers.” Bakery Helms 67 Cal.2d at fn. italics added.)
724
E Village Assn. 42 (1986) Donnell also relies on Frances T. Green Owners 456, 723 P.2d 59 A.L.R.4th Cal.Rptr. Cal.3d 490 447] [229 Trees 798 (1977) Cal.App.3d O’Hara Western Seven 75 Corp. [142 However, cases do not Donnell. help those 487]. Assn., involved T. v. Green Owners Village Frances and the condomini- between a condominium owner special relationship she was alleged um homeowners association not here. The present plaintiff exterior her unit her to remove required in after the association raped covenants, conditions and not the association’s lighting complying with duty im- also the аssociation breached alleged restrictions. Plaintiff plaintiff in outside her unit. lighting Permitting common areas prove association, against owner to on a cause of action proceed negligence association “owed court held with to the common areas the project’s respect in land- of care a landlord the traditional same as would plaintiff 498.) at relationship.” (Id. lord-tenant 798, involved
O’Hara v. Seven Trees Corp., supra, Cal.App.3d in here. she was relationship Alleging raped a landlord-tenant not involved not adequate tenant sued her landlord for apartment, plaintiff providing her The court held the security danger rape. and not her of warning The “the landlord-tenant had stated a cause of action. court noted plaintiff urban, context, in has rise to given at residential relationship, least liability have failed to take reasonable under circumstances where landlords criminal It activity. has been held tenants from steps protect [Citations.] areas, he has that since the landlord is to secure common only position he and which of crimes which has notice protect against types 802-803, at are not secure.” likely (Id. pp. are to recur if common areas in O’Hara. unlike the lаndlord’s position italics Western’s added.) condition of sidewalk. city remedy any dangerous Here the could F fails under liability case Cal Western against Donnell’s asserted premises City Chamber Commerce analysis of Steinmetz v. Stockton In a “a landowner’s 405], involving case Cal.Rptr an invitee which upon for a criminal assault third person affirmed sum- off the landowner’s the court Steinmetz premises,” occurs court found tenant. mary favoring (Id. defendant judgment was murdered off “the record establishes without decedent question within the possession leased premises tenant] [defendant of another but rather on the tenant], or control of [dеfendant . . . tenant in the industrial Plaintiffs have not cited nor are we park. aware *10 any case held for to an injuries of where landowner was invitee responsible from criminal off the at activity occurring premises.” (Id. landowner’s Limited, Bakery italics in Schwartz v. Helms original.) Discussing 61 Cal.2d of busi supra, concept court stated Schwartz’s “elastic ness is to the vendor whose commercial uniquely premises appropriate are shifting activities conducted from a mobile vehicle at locations on However, streets. we know of no decision which has this public applied standard to one is in a fixed whose business conducted on private property Indeed, location. it is difficult to how such a rule could be fashioned.” perceive (Ste Commerce, City Stockton Chamber at supra, inmetz of p. 1146.)
Generally, “a has right manage landowner no to control and premises Commerce, by City owned another.” v. Stockton Chamber (Steinmetz of In supra, at Steinmetz the court concluded there Cal.App.3d p. 1147.) any duty was no factual to find of care to the decedent basis while owned, decedent on by not defendant. premises possessed or controlled The court noted defendant tenant had no to station right security guards on control, it did not or premises right own to in a place lighting parking own, area other than its no right and to control the activities of their owned, invitees or third parties occurring off or premises possessed con trolled defendant. Here Donnell has no evidence Cal Western presented had any to control or right manage city-owned sidewalk.
G In whether Cal considering duty Western owed a to William under the “ ‘ here, circumstances one factor to be “the extent weighed burden defendant and to the consequences community duty imposing ’ ” care liability exercise with for breach.” resulting (Peterson San Francis Dist., Community College сo 36 Cal.3d at Don supra, p. 806.) Accepting nell’s contention Cal Western should have on placed lighting monitors to influence affect the or condition of the adjoining beyond sidewalk would go any limits of case law and would existing an undefinable impose landowner Cal Western. scope upon (Stein Commerce, metz v. City Stockton Chamber at location, on Depending building configurations technology, may have the influence or affect condition of potential or adjoining property various distances from its own property property. However, the existing legal standard does not Cal Western to seek rеquire to exert such influence effect In may or wherever it have such potential. stead, The premises liability is based on or control. ownership, possession or owned influencing affecting property
mere condition possibility of such property. others does constitute “control” possessed liability, for existing ownership, posses- standard based control, reasonably clear limits. Such sion or provides predictability under- general policy limits are also consistent with the on premises may injuries of tort be liable for occur- lying Although persons much law. various their control or ring under circumstances on undеr elsewhere, statutory require- others in absent actively peril specific putting right) attempt ments have no indeed often no generally (and persons *11 may occur on another’s any injury property. which prevent possible of or ownership, possession has established the absence Summary injured. judgment control of the where Donnell was (Isaacs v. Memorial Huntington Hospital, Cal Western favoring proper. was Com 134; City 3d at Steinmetz v. Stockton Chamber supra, 38 Cal. of merce, 169 1145-1147.) Cal.App.3d pp.
Disposition The is judgment affirmed.
Scherer, J.,* concurred. WIENER, J., majority is at two with the Dissenting.—My disagreement they levels. reach their analytic process through The first which more The itself. I am far concerned conclusion. second is conclusion liability determination of tort judicial with the former than the latter. The I objective should which believe are absent principles, principles rest had majority I be far less concerned if the majority opinion. would reasonably that Cal Western acted or that its simply negligence said 193 injuries (1987) cause of v. McDonald’s legal (see Lopez Donnell’s however, say, To that Cal Western 495 Cal.Rptr. 436]). [238 and the precedent had to Donnell both well-established ignores facts. undisputed Judi- of cannot be overstated. opinion our difference of importance in Civil section rejection expressed
cial of the fundamental Code principle by their injuries negligence 1714 that all are for caused persons responsible (Rowland evaluation a number requires policy of of considerations. 561, P.2d Christian to the 496].) foreseeability factors include “the harm A.L.R.3d These * Assigned Chairperson of the Council. Judicial close- injury, suffered certainty that the plaintiff degree plaintiff, injury conduct and the the defendant’s the connection between ness of conduct, suffered, policy to the defendant’s the moral blame attached harm, the burden to the defendant the extеnt of future preventing exercise care with community of imposing consequences breach, availability, prevalence cost resulting (Id. involved.” at insurance for the risk factors the well-recognized these to avoid the application
In an effort merely “Cal Western had that stating offer a semantic majority explanation City’s (Maj. ability property.” the condition influence affect is no difference By meaningful definition there added.) italics opn. p. of control.1 concept “influence” and “affect” and between considerations de- rely do not on the majority policy The reason the Evеry factor guiding should be obvious. scribed Rowland Christian duty in this case. finding issue favors a judicial resolution of this *12 in of the known incidence of light The assault on Donnell was foreseeable a few in area a recent assault on a law school including employee crime in Donnell suffered harm the form of feet from where Donnell was attacked. wounds, wages bills and lost as a suffering,
stab medical surgery, pain a matter the attack. “That a thrives in dark is mugger public places result of International Angeles Airport (1976) v. Los knowledge.” (Slapin of common It is therefore reasonable to Cal.Rptr. 296].) a between Cal Western’s failure to provide conclude there was connection The of by policy and the harm suffered Donnell. requested lighting liability future harm be served on Cal West- imposing would preventing Ave- exterior on the Third installing lighting ern. economic burden of minimal; testimony also indicated nue side of the law school was There is little question video monitors could be installed at a modest price. by Donnell. commonly injury available for the suffered type insurance is blame, an indictment of With of moral it is perhaps respect question its em- society rejected that a law school litigation-minded repeatedly our security for increased and other lighting and students’ ployees’ requests of nominal of criminal assault because measures in the face of known risk liability if were assuming lights and the the school would be danger expense installed. in duty analysis only required one small part—a part—of
Control can a more liability. Obviously play control the determination of premises over; direct; regulate.” authority dominating influence “Control” means exercise “[t]o Diet, College 1981) p. (The English Language (New ed. Heritage American over; (Id. p. 674.) power affect.” “Influence” is have “[t]o in in the of control is the notion role cases where absence
significant implicit are, fаct, in they not be to take action where that can people expected words, fix Cal Western to In other we could powerless. expect blocks from the school en- adjacent away two law buildings use “Control” in routinely trance even students those sidewalks. though conclusionary way a that we nothing saying that situation is more than Here Cal makes do not burdens on impose impossible people. did, fact, in it It install lighting. claim is powerless improve shortly after the assault on Donnell. lighting requested analysis in those cases may duty Lack of also be relevant to the control are making tort-proof prоhibi- associated which costs with safety here to install only way If the of students was improve tive. sensors, well might device with the cost expensive radar electronic complete of tort outweigh the benefits to served such device and extension involve an in the education with might legal increase cost However, Cal exterior society. say resultant effect on Western does not was too no control eliminates one lighting At most expensive. finding several factors to be considered in the first establishing place. Here conclusion no majority’s failure to explain implied concerned how the gives legitimately owed little assistance to those with If are in the objectively process. societal costs balanced decisional respective significant policy failure to define and examine the anything, the sharply increases the may majority’s considerations which underlie the conclusion liability—or that thereof—is based on popular tort limitation perception *13 that tort nothing subjective judges more than the individual responses Su liability why is the expanded should be or decreased. This California the confusing Court has cautioned lower courts about preme repeatedly that must analysis. nature of thе “The assertion misleading the ‘duty’ ... bears to plaintiff ‘begs denied because defendant are to legal essential the interests entitled question—whether plaintiff’s . . . [Duty] the defendant’s conduct. is a shorthand protection against conclusion, . an in . . analysis statement of a rather than aid to itself. [I]t itself, only that in an “duty” should be is not sacrosanct but recognized lead the of the sum total of those considerations of which expression policy ” say is (Dillon law to that the entitled to particular plaintiff protection.’ 912, 441 P.2d Legg (1968) 68 Prosser, 332- (3d pp. A.L.R.3d Law of ed. 1316], quoting 1964) Torts Western The the of this case. Here Cal majority ignores also facts oрinion the to only installing the means of over lighting approaches controlled fact, had, in law virtue of of the but by ownership building, the school and other means lighting through control over the approaches exercised which building occupies The law is situated a large the school past. by side- city three sides the city block. The is bordered on entire east, west, on Avenue Third Avenue on the Fourth along walks freeway building abuts a Street on The north side of the Cedar the south. small Cal illuminated the law school entrance with right-of-way. on gas also two building. lamp poles There were floodlights attached to manager the business Street in front of school which the Cedar sidewalk Western. The back of the by and maintained Cal testified were owned The security gates discourage to transients. building was sealed off with side building. attacked the darkest of the west side where Donnell was was noted, of control that right por- Cal Western exercised its limited over As by shortly after the installing lighting tion of the to the law school approach there at visibility “to increase out January night.” attack limited control over the sidewalks Cal Western also exercised its right early as security as instructing personnel law school approaching escort their cars dark on bеcause of persons request 1978 to after “If it was that had a neighborhood. place, nature of the a student parking If that on they go then would lot. it was a student had parking parked street, Avery then have to Dean observed the they go would the car.” front door law school in when security view personnel kept the Cedar guard stayed the escort service. The Street sidewalk providing away her car in and drive and then “watching woman out to go get back to did not coming building.” majority assertion Western exercise at limited control over the responsibility ap- assume for or least building, school proaches including law incorrect. injured, factually
where on the I judgment. Based would reverse the foregoing July Court was for review denied Appellants’ petition Supreme 1988.