*717 Opinion
When Robert was released from prison on rehabilitative parole after having been convicted of felony child molestation four years earlier, his family might have disowned him, but they didn’t. They accepted him back. And when he found a girlfriend named Helen—who had an eight-year-old boy named Eric—they did not tell Helen about Robert’s previous conviction, no doubt hoping against hope that he had reformed himself.
Unfortunately, and unbeknownst to any members of the family or Helen herself, Robert began molesting Helen’s son early on in his relationship with her. Helen, acting as Eric’s guardian, has now sued various members of Robert’s family for not telling her of his previous conviction. Because some of the sexual abuse occurred on property owned by family members, Helen has asserted premises liability as well as general negligence as her two theories of liability.
The trial judge granted the family members’ motion for nonsuit, and we now affirm the ensuing judgment. As we explain below, under the circumstances of this case, premises liability is a make-weight because there was no relationship between the harm and any premises owned by family members on which the harm occurred. The state was willing to take a chance on Robert by releasing him on parole, and so were his family members by accepting him back, so he cannot be legally equated, as Helen would have us do for purposes of premises liability, to a dangerous animal.
As to general negligence, the family members cannot be held liable for their “nonfeasance” in failing to warn Helen because to do so would contravene one of the most important, long standing, and recently reaffirmed principles of American tort law: You are not responsible for mere inaction without some sort of special relationship which creates a duty to take some action; the law does not require people to be Good Samaritans (i.e., the traditional “no duty to aid” rule).
Facts and Litigation Background
In 1978 Robert was arrested for the misdemeanor of “annoying” a minor. He pled no contest and served six months, and was on probation for the next three years. 1 During that time he committed one probation violation for taking four high school freshman boys to dinner without supervision. Again he served some time in jail and was placed on probation.
*718 Then in 1984 he was arrested for molesting a 10-year old boy. He again pled no contest, this time to a felony count of violating Penal Code section 288, subdivision (a) (lewd or lascivious act with or upon body of child under the age of 14). He served four years in state prison, getting out in August 1988.
In June 1989, Robert met Helen and her eight-year-old son Eric at Magic Mountain. A relationship developed between Robert and Helen, and, by Thanksgiving 1989, Robert invited Helen and Eric for an overnight stay at the home of his mother Dorothy in Big Bear so she and Eric could meet some of the rest of his family.
Besides Dorothy, Robert’s family consists of his father Edwin, his father’s wife Betty, Robert’s three brothers Frank, Phillip and Eddie, Frank’s wife Jean, and a sister named Diane. Dorothy and Diane are not parties to this appeal. 2
The members of Robert’s family concluded that Helen was his “girlfriend.” Their relationship continued until early 1992, when Robert moved to Las Vegas.
Later that year, one of Helen’s friends saw a special on television regarding convicts on parole, which showed a picture of a younger, beardless Robert and revealed that he was a convicted molester. 3 She told Helen about the program, and a few days later, Helen took Eric to a police station. There, Helen learned that Robert had been molesting Eric. In June 1993 Robert was convicted of 23 counts of child molestation. He had never told Helen of his criminal history.
Helen, acting as guardian ad litem for Eric, sued various members of Robert’s family. The case came to trial, during which it was learned that on several occasions Eric was molested on property owned by some of Robert’s family members: Eric was molested at the Huntington Harbor home of Robert’s father Edwin during a Christmastime gift exchange; Robert molested Eric for about two minutes while the two of them were apart from the others in a room where Frank and Jean’s baby was sleeping. There were *719 several other occasions when Eric was similarly 4 molested by Robert at Edwin and Betty’s house, but the record does not reveal any more details (Eric could not recall any). Eric was also molested twice on a yacht owned by Edwin and Betty that was moored near their home. Once it was in the “driver’s area” of the vessel, at a time when only Robert, Eric and a friend of Eric’s named Jeff were around, and Jeff was cutting a rock with a rock cutter in front of the home, unable to see what was going on. Another time it was in the engine room of the yacht at a family gathering, when most of the members were on the dock; again the molestation lasted about two minutes.
Besides being molested at the home of Edwin and Betty several times, Eric was quickly molested once at each of the homes of Robert’s three brothers: There was a birthday party at Phillip’s house; the molestation took place in an entertainment room while the rest of the clan were in various other rooms. Another molestation occurred at brother Eddie’s house, when Robert and Eric came to pick up some “stuff’ Robert owned; at the time Eddie was working on his stereo. Similarly, when Robert and Eric came over to pick up some stuff from the home of brother Frank and his wife Jean that Robert had left, Robert molested Eric in the garage while Frank and Jean were in the house.
Each of the relatives had various degrees of knowledge of Robert’s history. Father Edwin knew the most. He knew about the 1978 and 1984 convictions. Robert came to Uve with him and Betty for a short period after Robert’s release from prison in 1988, and was visited by a parole officer shortly thereafter; she told Edwin that in her opinion Robert was a “pedophile.” The parole officer also told Edwin that Robert had agreed to be put on a state parole rehabilitation program obligating him to report for psychiatric counseling, obtain gainful employment, not be alone with an unsupervised child, and allow for unannounced inspections of his residence. Edwin told Betty about the visit and the conversation.
Edwin also believed that his son was, as he would later testify in trial “truly repentant of his unfortunate situation back in 1984, that he was trying to adhere to his parole very, very vigorously.” Indeed, Robert had voluntarily “participated” in the television special regarding convicts on parole against his father’s advice because, as he told his father, “Dad, I want to do it to show we can succeed . . . .”
The parole officer also visited brother Frank and his wife Jean when she learned that Robert was going to live with them for a while. She told them *720 that Robert was a sex offender and reiterated the same parole conditions she told Edwin.
Brother Eddie learned sometime in 1989 or 1990 that Robert had been incarcerated on a molestation charge, and “wished to find out no more about it.” By contrast, Robert’s youngest brother Phillip thought that Robert had been in jail for kidnapping a child and understood he was on parole for that offense. He would later testify that he had “no knowledge that Bob was a felon.”
The testimony was uncontroverted that none of the defendant family members ever told Helen about Robert’s convictions.
After the evidence had been completed the trial court granted nonsuit motions made by the defendants in this appeal; Helen then filed a timely notice of appeal from the judgment in their favor. On appeal Helen now argues that the evidence was susceptible to liability based on either premises liability or general negligence theories.
Discussion
Premises Liability
The most common situation where landowners may be held liable in tort for the criminal actions of another person on their property merely because of their status as landowners entails commercial, business or otherwise public property, with the criminal action being tied in some way to either the nature of the business or the property, and in a context where the actual perpetrator of the crimes was personally unknown to the landowner. (See, e.g.,
Isaacs
v.
Huntington Memorial Hospital
(1985)
In “public” or business property, liability has been allowed when there is something foreseeably dangerous about the nature of the activity conducted on the property or the property itself which fixes on the landowner the duty to take some sort of precaution (e.g., Cantwell [operation of a bar]). Or the area may be such that the presence of miscreants is generally a foreseeable risk (Isaacs [drug addicts drawn to emergency room in high-crime area], Francis T. [project was experiencing “crimewave”], O’Hara [rapist targeting females in particular apartment complex], Kwaitkowski [high-crime area, previous attack], Constance B. [highways breed “highwaymen”], Zuniga [gangs in public housing project]), and Onciano [unguarded parking lot late at night 6 ]), or the owner has in some way undertaken, as part of the organized activity on the land, care for the safety of the plaintiff as against criminal acts of third parties (Wallace [summer camp] and Winn [restaurant]).
*722
The need for a connection to the actual property itself, or some activity organized upon it, is underscored by the rationale in cases where
no
liability has been allowed. Absence of actual notice of any prior incidents on the property was dispositive in
Sharon P.
v.
Arman, Ltd.
(1999)
As one might expect, far fewer cases involve criminal activity occurring on nonpublic residential property against social guests of the owners who live or whose tenants rent there. The typical case of premises liability in the residential context is, of course, the standard slip and fall or some other occurrence arising out of the condition of inanimate matter on the property. (E.g.,
Rowland
v.
Christian
(1968)
One case relied on by Helen involving the guest-residence scenario,
Pamela L.
v.
Farmer
(1980)
The plaintiff in another guest-residence case,
Chaney
v.
Superior Court
(1995)
Anaya
v.
Turk
(1984)
Anaya, however, is of only limited use on the point. There, the defendants invited both the plaintiff and another guest, who was an ex-convict, to their apartment. The reason they invited the ex-convict was to sell drugs to him. The ex-convict turned violent, and shot both the plaintiff and one of the defendants. The plaintiff asserted two causes of action based on two theories *724 of liability: (a) the defendants had a duty to warn him of the other guest’s “criminal propensities”; and (b) the defendants were conducting an activity—drug dealing—which increased the risk of harm to the plaintiff. (See 151 Cal.App.3d at pp. 1097, 1101.)
The Anaya case came to the Court of Appeal after summary judgment, and the court affirmed the judgment as to the first theory (failure to warn)— which it styled as based on “mere nonfeasance (failure to intervene for the benefit of plaintiff),” reasoning that “as a matter of law” the defendants’ “generalized knowledge” of the ex-convict’s criminal history could not support a finding of foreseeability. (See 151 Cal.App.3d at pp. 1100-1102.) “Mere knowledge that [the ex-convict] had been in federal prison did not constitute reasonable cause to anticipate his violent conduct,” said the court. {Id. at p. 1101.)
The Court of Appeal reversed, however, as to the second cause of action predicated on the dangerous activity of drug dealing, because, as one expert stated in a declaration opposing the summary judgment motion, it is “a common occurrence in drug transactions that the person buying the drugs will attempt to take them by force without paying for them, and will shoot or kill anyone in his way.” (See
While the holding of the Anaya case on the first cause of action would appear to be dispositive of any premises liability of brother Phillip, who had only the most “generalized knowledge” of Robert’s past crimes, it does not speak to the other defendants here, who all knew at least (in contrast with the defendants in Anaya) what Robert had been convicted of. Nor is its holding on the second cause of action much use: Family gatherings are most assuredly not drug deals, and there is nothing in this case to suggest that—absent the mere fact the Robert and Eric (and often Helen) would show up together—there was any activity conducted by any of the defendants on the premises that would increase the risk. Robert’s family could hardly be responsible for supervising him every moment during an innocent family gathering such as a Christmas gift exchange.
What Anaya does is to make reference to the plaintiff’s “contention” that the ex-convict’s “dangerous propensities” (the phrase is used at least three times, see 151 Cal.App.3d at pp. 1098-1100) established some sort of duty on the part of the landowner, though the opinion never explores the idea of the “dangerous propensities” of specific human beings in detail.
There was obviously a subtext, however, that ran through the plaintiff’s argument in Anaya, that Stanley Wilson—the ex-convict in the case—was *725 the functional equivalent of a dangerous animal. The argument is even closer to the surface in the present case, where the leitmotif of Helen’s appellate argument is that Robert—because he had once been convicted of felony child molestation and once been convicted of misdemeanor annoyance of a child 7 —was, when he was on the defendants’ property, to be treated as if he were a vicious pit bull, for whom a landowner might be liable just for allowing it on the landowner’s property.
Now, maybe in retrospect Robert
was
the
moral
equivalent of a vicious pit bull, and there is no doubt that, as a sex offender, he represented a threat. (See
Wright
v.
Superior Court
(1997)
The academic criminologist, James Q. Wilson, once observed that belief in rehabilitation “requires not merely optimistic but heroic assumptions about the nature of man.” 8 It may have been woolly thinking to release Robert in 1988, but he was released, and released under the auspices of a state parole rehabilitation program. Perhaps when he was convicted of felony child molestation in 1984 he should have been incarcerated for life without possibility of parole (i.e., locked up and the key thrown away), 9 but that was not what the law of criminal sentencing provided. When Robert was released rehabilitation was the goal, and it cannot be said as a matter of law, even in the case of individuals who have been convicted of felony child molestation, that the rate of recidivism in such cases is 100 percent. The legislative goal of rehabilitation—embodied in the very fact that Robert was indeed released on parole—cannot be squared, for purposes of landowner liability, with the assumption that Robert was the legal equivalent of a dangerous animal.
The problem of predicting when a specific convict will again commit, a crime was confronted by our Supreme Court in
Thompson
v.
County of
*726
Alameda
(1980)
The Supreme Court affirmed a judgment after a demurrer was sustained without leave to amend, and specifically tackled the “troublesome” (see
If the Legislature was prepared to accept the
possibility
of Robert’s rehabilitation, he cannot be equated with an inanimate, dangerous condition, or that of a dangerous animal. This is not a case of keeping a dog which is likely to attack someone on a piece of property. (E.g.,
Portillo
v.
Aiassa
(1994)
Given that Robert’s mere presence on the property cannot be considered a dangerous condition of the property, there is no basis for premises liability. *727 Nor do any of the other bases for premises liability apply. There was nothing about the nature of any activity conducted on the property to implicate such liability—again, family gatherings cannot be equated with drug dealing or operating a bar open to the public. Nor was there anything about the nature of any of the properties owned by the defendants to implicate liability—they were just homes, and in the case of Robert’s father, a yacht. Nor was there any relationship of entrustment of a child by virtue of an activity conducted on the premises, such as happened in Wallace, the summer camp case. If anyone was responsible for Eric, even at the family gatherings or times when Robert came over to his brothers to pick up his “stuff,” it was Helen. We therefore conclude that the trial court correctly granted the nonsuit motion as to Helen’s premises liability theory.
General Negligence
Absent a “special relationship,” one cannot be held liable for mere nonfeasance, such as not protecting another from a criminal attack by a third party. (See
Totten
v.
More Oakland Residential Housing, Inc.
(1976)
To the degree that Helen asserts a cause of action for negligence disconnected from premises liability, her claim essentially requires this court to depart from the rule against liability for mere nonfeasance. That rule is foundational in California tort jurisprudence. The tort law of California does not impose mandatory Good Samaritanism. (See generally, cases collected at
*728
6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 858, pp. 220-221; cf. ¿so
People
v.
Heitzman
(1994)
Helen argues that
Soldano
v.
O’Daniels
(1983)
Soldano did not abrogate the rule against liability for mere nonfeasance. Rather like Justice Scalia’s observation about the famous contracts case of Hadley v. Baxendale (1854) 156 Eng.Rep. 145, it is an instance of a court knowing the right rule but simply not applying it correctly. 12 The time has come to explain why the result in case is an aberration in American tort jurisprudence.
In
Soldano,
a saloon patron ran across the street to a restaurant to try to phone the police about a threat that had been made in the bar. The patron requested the bartender of the restaurant (in the fairly neutral language which the opinion used to describe the actual facts) to “ ‘either call the police or allow him to use the [restaurant] phone to call the police. That [bartender] allegedly refused to call the police and allegedly refused to allow the patron to use the phone to make his own call.’ ”
(Soldano
v.
O’Daniels, supra,
The appellate court reversed the judgment entered after a summary judgment motion when the son of the man who was shot and killed in the saloon sued the restaurant across the street. The appellate court began its substantive discussion by saying the “facts” of the case before it “come very nearly within section 327” of the Restatement Second of Torts, which the court then *729 paraphrased for the rather noncontroversial point that if you know a third person is going to render aid to another you shouldn’t “prevent[]” that person “from doing so.” (See Soldano v. O’Daniels, supra, 141 Cal.App.3d at pp. 452-453.) The opinion then quoted from a scope note making the same point, except it added the idea that you shouldn’t “interfere” with another person’s attempt to give aid as well as “prevent” it. (Id. at p. 453.)
The problem with the court’s analysis is that it subtly equated the concepts of prevention and interference as used in section 327 of the Restatement Second of Torts with the fact that the bartender had refused to allow a saloon patron from across the street use the restaurant’s phone. Interference and refusal to allow one’s property to be commandeered, even for a good purpose, are simply two different things. If the English words “prevent” and “interfere” still mean anything, they necessarily convey the notion of some sort of affirmative action, not just refusal to turn one’s property over to someone else. 13
In addition to
Soldano,
Helen also relies on
Pamela L.
v.
Farmer, supra,
Helen invites us to consider the duty question here under the traditional seven factors used by the courts. (E.g.,
Burgess
v.
Superior Court
(1992)
Conclusion
The judgment in favor of the respondents is affirmed. Because we affirm the judgment, the protective cross-appeal is moot.
Rylaarsdam, J., and Bedsworth, J., concurred.
On December 21, 1999, the opinion was modified to read as printed above. The petition of appellant Eric J. for review by the Supreme Court was denied March 15, 2000.
Notes
See Penal Code section 647.6, formerly Penal Code section 647a, making it a misdemeanor to “annoy[] or molest[]” any child under the age of 18.
Dorothy once left Robert and Eric alone in her house to go walk her dogs after Robert went there to fix her television. She did not receive the benefit of the nonsuit granted the other family members. We are informed in the opening brief that the jury awarded $200,000 and that the judgment has been satisfied. In this appeal, there are three sets of defense counsel: one for Edwin and Betty (Robert’s father and father’s wife); one for brother Frank and Frank’s wife Jean, and one for the two brothers Phillip and Eddie.
The friend would later testify. Her testimony seems to indicate that the point of the television special was that there was only one parole officer to supervise 100 convicts.
The record indicates that all these molestations consisted of Robert orally copulating Eric for about two minutes.
The viability of the holding in
Onciano
is questionable in light of the subsequent Supreme Court decision in
Ann M.
v.
Pacific Plaza Shopping Center
(1993)
As mentioned above,
Onciano
may not be viable in light of the subsequent case of
Ann M.
Assuming that is, however, the essential rationale of the opinion goes to the nature of the property. The court reasoned, rather similar to
Constance B.,
that the presence of unattended cars on a parking lot late at night would act as a magnet for criminal activity. (See
Onciano
v.
Golden Palace Restaurant, Inc., supra,
Words are important, exact language makes a difference, and sometimes, Strunk and White notwithstanding, it is better to use more words than less. It would be easy to write that his family knew that Robert was a “child molester,” but in the context of the law in this case, it would be inaccurate and would convey an idea that is not supported by the record, namely that they were aware of the molestation of Eric as it happened. What they knew, precisely, is that their relation had been convicted of the crime of child molestation.
See Boldt, Rehabilitative Punishment and the Drug Treatment Court Movement (1998) 76 Wash. U. L.Q. 1205, 1306, referencing Lipton, The Effectiveness of Treatment for Drug Abusers Under Criminal Justice Supervision 3 (1975) page 14.
For a bibliography of academic critics of rehabilitation, see Norris and Peters, Fiscal Responsibility and Criminal Sentencing in Illinois: The Time for Change Is Now (1993) 26 J. Marshall L.Rev. 317, 361, footnote 69.
A fact which the court used to distinguish the case from
Tarasoff.
(See
Thompson
v.
County of Alameda, supra,
Isaacs
criticized as “fatally flawed” the requirement of “prior similar incidents” set forth in a series of Court of Appeal decisions, among which was
Totten.
(See
Isaacs
v.
Huntington Memorial Hospital, supra,
See Scalia, A Matter of Interpretation (Princeton U. Press 1997) page 6 (“the miller rather than the carrier should have won the case”).
The
Soldano
opinion tried to distinguish between phones in private residences and phones in restaurants open to the public, but cited no statute or regulation that a restaurant’s own phone (as distinct from, say, a pay phone in the bar or hallway that anyone could use) must be made available for emergency situations. (See