Lead Opinion
Opinion
We granted review in this case to consider important issues concerning the liability of apartment owners and other business enterprises to persons injured on their premises by the criminal acts of others, a liability based solely on the business owners’ negligent failure to provide adequate security measures to protect those who enter their property. The difficulty in resolving these issues is enhanced by the need to balance two important and competing policy concerns: society’s interest in compensating persons injured by another’s negligent acts, and its reluctance to impose unrealistic financial burdens on property owners conducting legitimate business enterprises on their premises.
Standard of Review
Because plaintiff appeals from an order granting defendants summary judgment, we must independently examine the record to determine whether triable issues of material fact exist. (Code Civ. Proc., § 437c, subd. (c); see Guz v. Bechtel National, Inc. (2000)
We recently observed in Guz that amendments to the California summary judgment statute may have modified the foregoing traditional rule by clarifying that “a moving defendant could obtain summary judgment solely by showing after opportunity for discovery, that the opposing plaintiff had failed to present triable evidence crucial to his case [citation].” (Guz, supra,
We agree that the amendments to Code of Civil Procedure section 437c have modified the rule recited in Sharon P. As stated in Scheiding v. Dinwiddie Construction Co. (1999)
Scheiding continued, pointing out that “The 1992 and 1993 amendments . . . did not change the fundamental requirement that the moving party prove its right to summary judgment, but did adopt the federal mechanism of burden shifting. The new statute expressly provided that the burden does not shift to a responding party until the moving party (in this context, as usual, a defendant or cross-defendant) has been able to ‘show’ that a cause of action has no merit ‘because an element of the claim cannot be established or there is a complete defense.’ Thus, the amended language of [Code of Civil Procedure] section 437c, like its counterpart Federal Rules of Civil Procedure, rule 56 (28 U.S.C.), now places the initial burden on the moving party, and shifts it to the opposing party upon a ‘showing’ that one or more elements of the cause of action cannot be established. [Citation.]” (Scheiding, supra, 69 Cal.App.4th at pp. 71-72, italics added; see also Union Bank v. Superior Court (1995)
Therefore, we must determine whether defendants in the present case have shown, through the evidence adduced in this case, including security records and deposition testimony, that plaintiff Saelzler has not established, and cannot reasonably expect to establish, a prima facie case of causation, a showing that would forecast the inevitability of a nonsuit in defendants’ favor. If so, then under such circumstances the trial court was well justified in awarding summary judgment to avoid a useless trial. (See Guz, supra,
In performing our de novo review, we must view the evidence in a light favorable to plaintiff as the losing party (Molko v. Holy Spirit Assn. (1988)
Facts
On March 15, 1996, plaintiff Marianne Saelzler was an employee of Federal Express. Defendants were owners of the Sherwood Apartments, a 28-building, 300-unit apartment complex located on a several-acre site in Bellflower. Plaintiff came
Plaintiff’s attempt to deliver the package proved unsuccessful because the resident was not at home. When plaintiff returned down a walk path with the package in hand, the three men confronted her, and one of them asked, “Where do you think you’re going?” When she failed to reply, another one said, “You’re not going anywhere.” Then the three of them beat her and attempted to rape her, inflicting serious injuries. After assaulting plaintiff, her assailants fled and were never apprehended.
Plaintiff’s complaint alleged that defendants, knowing that dangerous persons frequented their premises, nonetheless failed to maintain the premises in a safe condition, failed to provide adequate security, and failed to warn others of the unsafe conditions. Defendants moved for summary judgment on the basis that plaintiff was unable to establish any substantial causal link between defendants’ omissions and plaintiff’s injury. Plaintiff offered no evidence showing the identity of her assailants, whether they were gang members, whether they trespassed on defendants’ property to assault her, or whether they were tenants of the building who were permitted to pass through the security gates. Similarly, plaintiff submitted no evidence showing that the propped-open security gate was actually broken or otherwise not functioning properly, or whether her assailants entered through the gate or themselves broke it and entered. Finally, plaintiff offered no evidence that defendants reasonably or effectively could have warned members of the public such as plaintiff of unspecified dangers from unknown assailants frequenting the area.
As the trial court found, plaintiff presented evidence that defendants knew of frequent recurring criminal activity on the premises of their 28-building apartment complex. The community of Bellflower was itself a high-crime area, with considerable juvenile gang activity occurring both on and off defendants’ premises. Plaintiff provided police reports and security logs showing that within the year prior to her assault, defendants received 41 reports of trespass, and 45 reports of occasions in which various perimeter fences and gate doors were broken or rendered inoperable. The list of criminal activity on the premises included incidents of gunshots, robberies, and sexual harassment of women, including sexual assaults and rapes.
Defendants’ security manager acknowledged that during the year preceding the assault on plaintiff, several nighttime assaults, and actual or attempted rapes, occurred on the premises. Plaintiff produced evidence that a gang called the 706 Hustlers was reportedly “headquartered” in one of defendants’ apartment buildings, conducting drug transactions, and hitting and intimidating other people on the premises. In the year prior to the incident involving plaintiff, sheriff’s officers came to the Sherwood Apartments approximately 50 times. Much of this criminal activity was reported to defendants’ manager, either in daily incident reports from their nighttime security officers or in police reports. Some pizza parlors refused to deliver to apartments in the complex, insisting residents come to the sidewalk if they wanted delivery of pizzas ordered by phone. Defendants’ apartment manager used security personnel to escort her to her vehicle whenever she left the premises.
Plaintiff observes that police officers advised both defendants’ apartment manager and the head of the security firm they employed that they should hire daytime as well as nighttime security patrols. Plaintiff filed a lengthy declaration from a security expert, Robert Feliciano, who had reviewed the security logs and depositions and had personally visited the Sherwood Apartments complex. His qualifications included service as Director of Police and Safety for the Housing Authority of Los Angeles County, as well as advanced education in public safety and several years in law enforcement. At the time he made his declaration, he was a full-time instructor in criminal justice and police science at a community college. Feliciano expressed the opinion “that this attack, assault and battery, and attempted rape on the plaintiff would not have occurred had there been daytime security and a more concerted effort to keep the gates repaired and closed. . . . It is my opinion that the premises were a haven for gangsters and hoodlums which further encouraged criminal activity as evidence [sz'c] by the long history of criminal activity in the only one year prior to this incident.”
The trial court granted summary judgment for defendants, finding plaintiff had failed to show defendants’ breach of duty to safeguard her was a proximate cause of her assault. Based on the parties’ submissions, the court found “overwhelming evidence” of prior incidents of trespass and broken or inoperable perimeter fences or gates, and a “long list” of criminal activity on the premises, including a juvenile gang possibly “headquartered” there. But despite establishing the “high foreseeability” that violent crime would occur on the premises, and defendants’ resultant duty to provide increased security, the court found that plaintiff failed to establish a “reasonably probable causal connection” between defendants’ breach of duty and plaintiff’s injuries.
A majority of the Court of Appeal reversed, concluding that plaintiff’s showing was sufficient to raise a triable causation issue for the jury. In summary, the majority held, relying primarily on commonsense and ordinary experience, that defendants’ “complete absence of required security measures” by itself reasonably could be deemed a contributing cause of any criminal activity in the area.
The Court of Appeal majority also held that defendants’ failure to provide additional security justified shifting the burden of proof to defendants, for purposes of their summary judgment motion, to conclusively establish the absence of a causal relation between their breach of duty and the assault on plaintiff by showing this particular assault would have occurred
Finally, according to the Court of Appeal majority, the testimony of plaintiff’s expert, opining that the assault on plaintiff would not have occurred but for the lack of daytime security measures, was “both admissible and credible” on the causation issue.
The Court of Appeal dissent reasoned that although security measures such as guards, lights, or gates may lessen the general probability of crime occurring on the premises, plaintiff presented no evidence that such measures would have succeeded in thwarting her assailants. The dissent observed that “Neither appellant nor anyone else knows who the attackers were; they may have lived in the complex and possessed keys to the gate. Even if the attackers were nonresidents, a functioning gate would not necessarily have kept them out. The attackers might have followed [plaintiff] or some other tenant in while the gate was open, or climbed over the gate. The complex had numerous auto and pedestrian entrances through which the attackers might have come.
“Likewise, it cannot be known whether more security guards would have prevented the attack. A 300-unit, 28-building apartment complex contains many rooms, halls, entries, garages and other spaces where a rape could take place despite extensive security patrols. Again, though one can generalize that increased security patrols probably would have lessened the incidence of crime in the complex, we can never know whether they would have prevented the attack on appellant. The security officer’s logs in evidence did show that there were regular security patrols on the premises, and despite these, the attack on [plaintiff], and other crimes as well, occurred.”
Discussion
As indicated, in this case plaintiff, injured on defendants’ premises by the criminal assault of unknown assailants, seeks to recover damages from defendants on the theory that they breached their duty of care toward her. In a recent case, we explained that to prevail in such a case, the plaintiff must show that the defendant owed her a legal duty of care, the defendant breached that duty, and the breach was a proximate or legal cause of her injury. (Sharon P., supra,
In Sharon P., the plaintiff was criminally assaulted by unknown assailants in an underground parking garage. She sued the garage owner for failure to provide adequate security measures for its tenants and, as here, the trial court granted summary judgment against her. Although in Sharon P. we were concerned with the question of the defendants’ duty to provide security guards and other security measures, we also spoke briefly on the separate subject of causation, observing that it was “questionable whether plaintiff’s proposed
In Sharon P., supra,
In Noble, the plaintiff was assaulted in a parking lot at Dodger Stadium and sued the stadium owner on the theory it failed to provide adequate security for its patrons. At trial, the plaintiff’s expert witness opined that the owner should have employed more security guards to patrol the area, and the jury awarded the plaintiff substantial damages. On appeal, the court reversed, holding that “abstract negligence,” without proof of a causal connection between the defendant’s breach and the plaintiff’s injury, is insufficient to sustain the award. (Noble, supra, 168 Cal.App.3d at pp. 916, 918.)
In Constance B., the plaintiff was assaulted at night in the restroom at a state highway rest area. The appellate court affirmed a grant of summary judgment in defendant state’s favor, holding that the plaintiff, who saw her attacker watching her when she entered the restroom, failed to submit evidence showing that additional lighting would have prevented the attack. (Constance B., supra, 178 Cal.App.3d at pp. 211-212.) The court observed that “If liability may be premised solely on this notion [that criminals are generally deterred by strong lighting], proprietors will become the insurers of the safety of persons on their premises, subject only to the caprice of particular juries. [Citation.]” (Id. at p. 212.)
In Ñola M., the plaintiff was raped on a college campus and sued the college on the theory it should have provided more campus security. On appeal from a judgment in the plaintiff’s favor, the Ñola M. court reversed. The court assumed for purposes of argument that the plaintiff had submitted sufficient evidence that the defendant breached a duty of care toward her, but concluded that she failed to prove the breach was a legal cause of the assault. (Nola M., supra, 16 Cal.App.4th at pp. 427-428.) The court observed that to demonstrate actual or legal causation, the plaintiff must show that the defendant’s act or omission was a “substantial factor” in bringing about the injury. (Id. at p. 427; see Mitchell v. Gonzales (1991)
In addition to the foregoing three appellate cases cited in our Sharon P. decision, other California cases support the rule that the plaintiff must establish, by nonspeculative evidence, some actual causal link between the plaintiff’s injury and the defendant’s failure to provide adequate security measures. (See Leslie G., supra, 43 Cal.App.4th atpp. 480-488; Thai v. Stang (1989)
Although each of the foregoing cases supports defendants’ position here, Leslie G. is perhaps closest on point, being an appeal following summary judgment for the defendant. There, the plaintiff alleged she was raped by an unknown assailant while in the garage of her apartment building. She sued the building owners, asserting their negligence in failing to repair a broken security gate might have allowed her assailant to enter the garage. As in the present case, the plaintiff’s security expert testified at his deposition that the apartment was located in a high-crime area, that functioning security gates were critical to ensuring tenants’ safety, and that the nonfunctioning gates allowed the assailant to enter and ultimately assault the plaintiff. The expert stated his opinion that the defendant should have hired an on-site manager to perform regular inspections and repairs of the gate and other entrances, to ensure the building’s continued safety. He also opined that the assailant had selected the garage because of its isolated, remote nature, and the opportunities to hide and escape if necessary. (Leslie G., supra, 43 Cal.App.4th at pp. 478-479.)
In Leslie G., as here, the trial court granted the defendant summary judgment on the ground the plaintiff had failed to establish a sufficient causal connection between the defendant’s negligence and the assault. Unlike the present case, in Leslie G. the Court of Appeal affirmed summary judgment, holding that the security expert’s opinions were too speculative to furnish a causal link between the defendant’s negligence and the assault. The court also observed that “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), [plaintiff] cannot survive summary judgment simply because it is possible that he might have entered through the broken gate. [Citations.]” (Leslie G., supra,
As here, the plaintiff in Leslie G. had argued that her expert’s opinion testimony was sufficient to create a triable issue of fact regarding causation. The court disagreed, observing that expert opinion resting solely on speculation and surmise is inadequate to survive summary judgment because it fails to establish a “ ‘reasonably probable causal connection’ ” between the defendant’s negligence and the plaintiff’s injury. (Leslie G., supra,
Leslie G. and the other cases cited above fully support the trial court’s summary judgment ruling in this case. Here, by reason of the prior criminal assaults and incidents on the premises, defendants may have owed a duty to provide a reasonable degree of security to persons entering them. For purposes of discussion, we assume defendants breached that duty by failing (1) to keep all entrance gates locked and functioning, and (2) to provide additional daytime security guards to protect persons such as plaintiff. But the evidence fails to show that either breach contributed to plaintiff’s injuries in this case. As Professors Prosser and Keeton observe, “A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.” (Prosser & Keeton, Torts (5th ed. 1984) § 41, p. 269, fns. omitted, italics added.)
Plaintiff admits she cannot prove the identity or background of her assailants. They might have been unauthorized trespassers, but they also could have been tenants of defendants’ apartment complex, who were authorized and empowered to enter the locked security gates and remain on the premises. The primary reason for having functioning security gates and guards stationed at every entrance would be to exclude unauthorized persons and trespassers from entering. But plaintiff has not shown that her assailants were indeed unauthorized to enter. Given the substantial number of incidents and disturbances involving defendants’ own tenants, and defendants’ manager’s statement that a juvenile gang was “headquartered” in one of the buildings, the assault on plaintiff could well have been made by tenants having authority to enter and remain on the premises. That being so, and despite the speculative opinion of plaintiff’s expert, she cannot show that defendants’ failure to provide increased daytime security at each entrance gate or functioning locked gates was a substantial factor in causing her injuries. (See Nola M., supra,
This case differs substantially from Rosh v. Cave Imaging Systems, Inc. (1994)
Plaintiff, citing her expert’s declaration, opines that her injuries could have been avoided if defendants had hired roving security guards to patrol the entire premises during the day as well as at night. Aside from the inordinate expense of providing such security for a 28-building apartment complex, the argument is entirely speculative, as assaults and other crimes can occur despite the maintenance of the highest level of security. (See Sharon P., supra,
Finally, as Ñola M. asks, “where do we draw the line? How many guards are enough? Ten? Twenty? Two hundred? ... To characterize a landowner’s failure to deter the wanton, mindless acts of violence of a third person as the ‘cause’ of the victim’s injuries is (on these facts) to make the landowner the insurer of the absolute safety of everyone who enters the premises.” (Nola M., supra,
Plaintiff argues that a footnote in an earlier case supports her argument that the trial court’s findings of the foreseeability of plaintiff’s injury necessarily also establishes the element of causation. (See Isaacs v. Huntington Memorial Hospital (1985)
The Isaacs footnote was written in the context of an assault occurring in a dark, isolated parking lot lacking security guards or proper lighting, under circumstances in which the defendant could clearly foresee that its omissions would contribute to the very assault which occurred there. We did not intend to suggest in Isaacs that a general finding of the foreseeability of some kind of future injury or assault on the premises inevitably establishes that the defendant’s omission caused plaintiff’s own injuries. Actual causation is an entirely separate and independent element of the tort of negligence. (See Sharon P., supra,
Plaintiff also argues in favor of the Court of Appeal majority’s practical approach to the causation issue. As previously noted, the majority held that common sense and common experience should lead us to conclude that a defendant’s “complete absence of required security measures” is necessarily a “contributing cause of most crimes occurring on that property.” Defendants observe, of course, that the evidence fails to show any such complete absence of security, as defendants provided, among other things, nighttime roving security patrols and regular daytime inspections to repair broken gates.
More fundamentally, we hesitate to adopt a rule of common sense that seemingly would prevent summary judgment on the causation issue in every case in which the defendant failed to adopt increased security measures of some kind. Ñola M. observes that “it would be grossly unfair to permit a lay jury, after the fact, to determine in any case that security measures were ‘inadequate,’ particularly in light of the fact that the decision would always be rendered in a case where the security had, in fact, proved inadequate . . . .” (Nola M., supra,
Leslie G. and Ñola M. explain that, to demonstrate actual or legal causation, the plaintiff must show that the defendant’s act or omission was a “substantial factor” in bringing about the injury. (Leslie G., supra,
Plaintiff overstates her case when she contends that adopting the “substantial factor” approach to the causation issue would make it virtually impossible to recover from landlords or other property owners for negligence in failing to take reasonable protective measures to safeguard others from the criminal assaults of third persons. Plaintiff asserts that a
Thus, in a given case, direct or circumstantial evidence may show the assailant took advantage of the defendant’s lapse (such as a failure to keep a security gate in repair) in the course of committing his attack, and that the omission was a substantial factor in causing the injury. Eyewitnesses, security cameras, even fingerprints or recent signs of break-in or unauthorized entry, may show what likely transpired at the scene. In the present case no such evidence was presented, but the circumstances in other cases may well be different. (See Leslie G., supra,
Ñola M. lucidly explained that “We think it comes down to this; When an injury can be prevented by a lock or a 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. (Noble v. Los Angeles Dodgers, Inc., supra,
Plaintiff also urges us to adopt the Court of Appeal’s novel approach of shifting the proof burden on the causation issue to defendants. As previously noted, the Court of Appeal majority held that defendants’ flagrant failure to provide daytime security justified shifting the burden of proof to defendants to conclusively establish the absence of a causal relation between its breach of duty and the assault on plaintiff; by showing this particular assault would have occurred even if reasonable security measures had been taken.
We think such a drastic shifting of the proof burden is unjustified by either the evidence in this case or prior statutory and case law. First, and contrary to the Court of Appeal’s hyperbole, the evidence discloses no flagrant failure in this case. As we have seen, most of the assaults and similar incidents of crime plaintiff has cited occurred during the night, and the record indicates defendants did provide extensive nighttime security. Moreover, plaintiff’s own evidence showed that defendants at least attempted to keep all security gates in working order, performing regular inspections and repairs.
But again, even assuming a triable issue existed regarding the extent or reasonableness of defendants’ security efforts, even a flagrant failure to provide such
Indeed, the Court of Appeal’s burden-shifting approach seems directly contrary to the state’s summary judgment statute, which provides that a defendant meets its 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 . . . cannot be established . . . .” Once the defendant meets the foregoing burden, “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 . . . [and] set forth the specific facts showing that a triable issue of material fact exists as to that cause of action . . . .” (Code Civ. Proc., § 437c, subd. (d)(2).) As stated in Leslie G., supra,
In short, plaintiff cannot prove that defendants’ omissions were a substantial factor in causing her injuries, and no proper basis exists for shifting the burden of proof on that issue to defendants. Plaintiff has had ample opportunity, through pretrial discovery, to marshal evidence showing that defendants’ asserted breach of duty actually caused her injuries. The evidence at hand, however, merely shows the speculative possibility that additional daytime security guards and/or functioning security gates might have prevented the assault. Plaintiff’s evidence is no less speculative because she offered a security expert’s testimony. Because he was equally unaware of the assailants’ identities, his opinion regarding causation is simply too tenuous to create a triable issue whether the absence of security guards or functioning gates was a substantial factor in plaintiff’s assault.
The judgment of the Court of Appeal is reversed with directions to affirm the award of summary judgment in defendants’ favor.
George, C. J., Baxter, J., and Brown, J., concurred.
Dissenting Opinion
The majority upholds the trial court’s grant of summary judgment to defendants, at whose apartment complex plaintiff, a Federal Express employee who was trying to deliver a package, suffered a brutal sexual assault by three men who were never apprehended. Only by bending both the rules of summary judgment and the legal causation element of negligence can
I
After the sexual attack described above, plaintiff sued defendants, seeking • damages for personal injury. She alleged that defendants knew of dangerous persons frequenting their property, yet failed to maintain the premises in a safe condition, failed to provide adequate security, and failed to warn of unsafe conditions.
Defendants moved for summary judgment, asserting that plaintiff could not show that they had caused her injuries. In opposition, plaintiff presented the following evidence; Pizza parlors refused to deliver to the apartment complex. Defendants’ own apartment manager relied on security personnel to escort her to her car whenever she left the property. During the year before the attack on plaintiff, security personnel reported to the building’s management 45 instances of broken fences or gates and 41 trespass incidents, and police responded to the complex some 50 times. Criminal activities on the property included gunfire, robberies, rapes, and other sexual assaults. The premises were the headquarters for the 706 Hustlers, a gang that conducted drug transactions and assaulted and threatened others on the property. Although security guards patrolled the complex at night, defendants provided none during the day even though the police had suggested that they do so.
After reviewing defendants’ security logs and depositions and visiting the complex, plaintiff’s security expert concluded that the attack would have been prevented had defendants provided daytime security at the complex.
The trial court found “overwhelming evidence” of recurring criminal activities on defendants’ property, making it highly foreseeable that violent crime would occur on the property. The court nevertheless felt compelled to grant defendants’ motion: “The Court notes that the facts of this case are particularly troubling and may warrant the Court of Appeal reviewing the status of the law as it relates to the Nola M. [v. University of Southern California (1993)
The Court of Appeal in a split decision reversed the summary judgment in favor of defendants. We granted defendants’ petition for review. Today, a majority of this court in turn reverses the Court of Appeal’s judgment.
II
The majority concludes that plaintiff cannot show a causal connection between her injuries and defendants’ breach of the duty of reasonable care they owed plaintiff unless she establishes that her assailants “would not have succeeded in assaulting her if defendants had provided additional security precautions” (maj. opn., ante,
Even at trial, a plaintiff need not establish causation with certainty. (Valdez v. J. D. Diffenbaugh Co. (1975)
Thus, under well-established law plaintiff here need not prove with certainty that the presence of security guards would have prevented the sexual assault.
Ill
After imposing on plaintiff the burden of showing causation with certainty, the majority also concludes that defendants are entitled to summary judgment unless plaintiff proves “it was ‘more probable than not’ that additional security precautions would have prevented the attack.” (Maj. opn., ante, at p. 776.) Again, the majority is wrong.
At the summary judgment stage, the plaintiff need only produce evidence sufficient to permit a reasonable trier of fact to infer that it is more probable than not that the defendants caused the injury. A motion for summary judgment may be granted only when no “triable issue of one or more material facts” remains for trial. (Code Civ. Proc., § 437c, subd. (o)(l) & (2), italics added.) A triable issue of material fact exists when the evidence as a whole is sufficient to permit a reasonable trier of fact to infer the existence of the requisite fact. (Code Civ. Proc., § 437c, subd. (c); CalvilloSilva v. Home Grocery (1998)
This distinction is critical. Surely some reasonable jurors could conclude that it is more probable than not that the presence of security guards would have deterred the attack on plaintiff here. Although there may be some criminals so reckless as to attack a person in broad daylight notwithstanding the presence of security guards, common sense suggests that such criminals are a minority. Knowing nothing about plaintiff’s never-apprehended assailants, a jury might reasonably conclude that such individuals are more likely to be among the typical class of criminals who would be deterred by the presence of security guards instead of among the reckless few who would not.
The majority’s errors deprive plaintiff of her constitutional right to a trial by jury. A judge ruling on a motion for summary judgment is not sitting as a trier of fact. When, as here, the plaintiff has a triable issue of material fact it is the jury that must decide the issue. (Reeves v. Sanderson Plumbing Products, Inc. (2000)
IV
Here, plaintiff offered evidence from which a reasonable trier of fact could find that defendants’ failure to maintain their property in a safe condition was more than a minimal cause of plaintiff’s assault. (See dis. opn. of Werdegar, J., post, at pp. 792-794.) Plaintiff need show nothing more to avoid summary judgment.
I would affirm the judgment of the Court of Appeal.
Werdegar, J., concurred.
Dissenting Opinion
I respectfully dissent.
The narrow question presented in this case, which comes to us on summary judgment, is whether defendants have demonstrated, with respect to the proximate cause element of plaintiff’s claim, that “there is no triable issue as to any material fact and that [defendants are] entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) The majority clouds the issue with repeated references to Sharon P. v. Arman, Ltd. (1999)
The majority thus mistakenly identifies our primary concern in this case as “the need to balance . . . competing policy concerns” (maj. opn., ante, at p. 766). The question of causation long has been recognized as a factual one, and it is only “ ‘where reasonable men [and women] will not dispute the absence of causality’ ” (Constance B. v. State of California (1986)
In its recent premises liability jurisprudence—including Sharon P. (landlord has no duty to secure premises absent “indications of a reasonably foreseeable risk of violent criminal assaults in that location” [
Contrary to the majority’s implication, were this case permitted to proceed it would not go to the jury on “ ‘abstract negligence [alone]’ ” (maj. opn., ante, at p. 773), nor, emphatically, would allowing trial on causation “ ‘make the landowner the insurer of the absolute safety of everyone who enters the premises’ ” (id. at p. 774). Plaintiff’s causation evidence, including her own testimony and that of her expert, is both detailed and nonspeculative. And affirmance on plaintiff’s causation theory would vindicate nothing more than the established principle that, “[w]here the occupier of land is aware of a concealed condition involving in the absence of precautions an unreasonable risk of harm to those coming in contact with it . . . , the trier of fact can reasonably conclude that a failure to warn or to repair the condition constitutes negligence.” (Rowland v. Christian (1968)
We do not in this case confront a difficult line-drawing problem. (See maj. opn., ante, at p. Ill, wondering “ ‘[h]ow many guards are enough? Ten? Twenty? Two hundred?’ ”) Defendants failed to provide any regular daytime security personnel—except, significantly, for their own manager. Had defendants’ guard, charged with escorting their manager, escorted plaintiff, it is difficult to imagine that the attack on plaintiff would have occurred. And, to the extent providing a single guard charged with escorting daytime deliveries might have discharged defendants’ obligation to plaintiff, that is all we need to say. Obviously, what constitutes reasonable care in a future case remains a factual question dependent on the circumstances.
It bears emphasis that if a defendant has taken reasonable care in the discharge of its duty, then no breach will be found even if a plaintiff nevertheless suffers injury. Our permitting this case to proceed, therefore, would not make a landlord the “insurer” of all who enter its premises. In suggesting otherwise, the majority engages in an emotional argument devoid of legal analysis.
The majority
First, the majority’s argument depends on false premises. It is not plaintiff’s position that defendants were negligent in failing to post guards at the complex gates in particular. Rather, she alleges in her complaint that defendants “failed to maintain their premises in a safe condition and failed to provide adequate security to persons on their property.” Her expert testified that “daytime security [guards] and a more concerted effort to keep the gates repaired and closed” (italics added) would have deterred the attack she suffered. The majority mischaracterizes plaintiff’s position apparently because it wishes to argue “she cannot show that defendants’ failure to provide increased daytime security at each entrance gate or functioning locked gates was a substantial factor in causing her injuries” (maj. opn., ante, at p. 776), but the argument is a non sequitur. Plaintiff does not have to prove that security lapses “at each entrance gate” contributed to her injuries; she has only to raise a triable issue as to whether she would have been attacked “if defendants had provided [reasonable] additional security precautions” (id. at p. 767).
The majority also relies on the patently false assumption that “[t]he primary reason for having . . . guards stationed at every entrance would be to exclude unauthorized persons and trespassers from entering.” (Maj. opn., ante, at p. 776.) To the contrary, I submit, it is plain that defendants’ primary reason (as ordinarily it would be any landlord’s primary reason) for having security guards was to deter all criminal behavior, not just trespassing, by any person (including tenants, not just unauthorized entrants).
As the majority concedes, defendants’ ongoing (day and night) crime problem included criminal activity throughout the premises by tenants and their guests, including possible gang members. (See maj. opn., ante, at p. 770.) The security guards defendants engaged for night duty were charged with patrolling and protecting—and routinely did patrol—the entire premises. Numerous patrol officers’ reports, submitted by both sides, reveal that defendants’ guards secured and monitored vacant apartments, parking lots, carports and parked vehicles, swimming pool areas, a weight room, a storage shed, laundry rooms, and trash bin areas. Indeed, references to “continuous patrol of the complex” appear in almost every patrol report in the record. These same reports reveal that defendants’ nighttime security guards regularly approached and were approached by tenants and their guests, in the common areas and at tenants’ front doors, in connection with suspected criminal activity, such as vandalism, car theft, drug activity, and noise. Dozens of patrol reports note that security guards “checked for any suspicious activity” throughout the complex. Such evidence renders incredible the majority’s pretense that defendants’ nighttime security guards were—and that, impliedly, any daytime security guards would likewise have been— “stationed at every entrance” primarily to “exclude . . . trespassers.” (Maj. opn., ante, at p. 776.)
The
Second, the majority’s attack on plaintiff’s causation evidence is specious. The majority seeks to invoke the rule that “ ‘proof of causation cannot be based on ... an expert’s opinion based on inferences, speculation and conjecture.’ ” (Maj. opn., ante, at p. 775, quoting Leslie G., supra,
Plaintiff’s causation evidence is not suspect merely because it includes expert testimony. The cases are legion in which expert testimony is accepted as competent evidence of causation.
Nor is plaintiff’s causation evidence “ ‘pure speculation or conjecture’ ” (maj. opn., ante, at p. 776) because some of it is probabilistic. “ ‘Proof of the relation of cause and effect can never be more than “the projection of our habit of expecting certain consequents to follow certain antecedents merely because we have observed those sequences on previous occasions.” When a child is drowned in a swimming pool, no one can say with certainty that a lifeguard would have saved him; but the experience of the community is that with guards present people are commonly saved, and this affords a sufficient basis for the conclusion that it is more likely than not that the absence of the guard played a significant part in the drowning. Such questions are peculiarly for the jury. Whether proper construction of a building would have withstood an earthquake, whether reasonable police precautions would have prevented a boy from shooting
Similarly, no one can say with certainty that heightened security would have deterred the attempted rape of plaintiff, nor is this plaintiff’s burden. Contrary to the majority’s implication, plaintiff is not required to show that “roving guards” or any particular security measure or combination of security measures “would have . . . prevented the attack.” (Maj. opn., ante, at p. Ill, italics added.) The experience of the community is that with security guards present such crimes commonly are deterred. “The fact of causation is incapable of mathematical proof, since no man can say with absolute certainty what would have occurred if the defendant had acted otherwise. If, as a matter of ordinary experience, a particular act or omission might be expected to produce a particular result, and if that result has in fact followed, the conclusion may be justified that the causal relation exists.” (Rest.2d Torts, § 433B, com. b, p. 443.) To the extent the majority holds otherwise, it effects a monumental alteration of tort law without explanation or justification.
The mere fact expert testimony is comprised partly of opinion does not render it speculative. (See Juchert v. California Water Service Co. (1940)
Third, the majority flatly misstates the requirements for proof of causation. California’s “substantial factor [causation] standard is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical.” (Rutherford v. Owens-Illinois, Inc. (1997)
Contrary to the majority’s suggestion, we do not require that tort plaintiffs, in order to evade summary judgment, “show some substantial link or nexus between omission and injury” (maj. opn., ante, at p. 778) beyond what “a rule of common sense” (ibid.) as applied by a reasonable jury might reveal. Like other fact questions, that of causation indisputably is entrusted to “the common sense which we have traditionally attributed to that body.” (O’Keefe v. South End Rowing Club (1966)
As noted, the majority speculates “the assault on plaintiff could well have been made by tenants” (maj. opn., ante, at p. 776), but even if accurate that surmise is not determinative. Indeed, the possibility of criminal assaults by tenants would point to the need for heightened daytime security. That tenants by definition are “authorized and empowered to enter . . . and remain on the premises” (ibid.) obviously cannot diminish—or, as the majority effectively would have it, eliminate—a landlord’s duty to “maintain their premises in a reasonably safe condition” (Sharon P., supra,
Defendants, it bears repeating, do not dispute they had a duty to plaintiff, that they breached that duty, and that plaintiff sustained serious injuries. At a minimum, reasonable minds can differ as to the inferences to be drawn from the causation evidence plaintiff has adduced, i.e., as to
The majority’s core authorities on the causation question are neither binding nor persuasive. Nola M., supra,
In any event, Ñola M. and Leslie G. are readily distinguishable. Ñola M., supra, involved only marginal misfeasance (see
Viewed objectively, plaintiff’s causation evidence plainly raises a triable issue of fact. The record reveals that plaintiff presented, aside from her expert’s declaration, considerable direct, nonspeculative evidence on causation. She testified to the circumstances of the assault as follows: She was attacked on a clear, sunny day and was carrying a package at the time. She first saw two of the attackers loitering outside a propped-open gate as she entered the complex, and first saw the third when she was walking through the complex to deliver the package. The apartment to which she tried to deliver her package was on the ground floor, and before
The parties’ separate statements of undisputed facts establish that the assault on plaintiff took place while she was in the walkpath. Plaintiff testified that she stopped and looked at her assailants before they jumped her, that her assailants engaged her in conversation before they physically attacked her, and that what they said to her panicked her.
The record also contains the declaration of plaintiff’s expert, Robert Feliciano. Feliciano inspected the premises, interviewed plaintiff about the attack, and reviewed records showing what security was in place at the time of the attack. Feliciano also reviewed depositions given by defendants’ head of security and defendants’ on-site manager. He reviewed police records showing that a massive, ongoing crime problem existed at the premises, as well as private security records revealing that drug trafficking occurred on the premises the day of the attack and describing the general state of security on the premises in the period preceding the attack on plaintiff.
Feliciano further was informed that local police had advised defendants to hire daytime security guards and was apprised of defendants’ manager’s standing request for a security escort whenever she proceeded from her apartment to her vehicle, which request was in place the day plaintiff was attacked. Contrary to the majority’s implication, therefore, Feliciano delivered, not an opinion “resting solely on speculation and surmise” (maj. opn., ante, at p. 775), but an opinion based on direct evidence from several sources about conditions on the day of the attack, the location of the attack, the movements of the persons involved, and details of the attack itself. The majority does not dispute that plaintiff’s expert was qualified to opine on the efficacy of security guards to deter particular types of crimes under particular circumstances. (See maj. opn., ante, at p. 771.) Unquestionably, the evidence on which he relied was sufficient rationally to ground his testimony that plaintiff’s injuries probably would not have occurred if defendants hád supplied daytime security.
In sum, plaintiff submitted sufficient evidence, including expert testimony, to permit a rational jury to find that defendants’ omissions were a substantial factor in causing her injuries. As explained, plaintiff’s testimony included details about the perpetrators, the location, the circumstances and the events of the attack she suffered. A rational jury hearing plaintiff’s testimony alone could find it probable that reasonable daytime security patrols, or an on-call security escort for delivery people (like the one defendants engaged for their manager), would have deterred her attackers. And a rational jury certainly could find a causal link credibly established by the combination of plaintiff’s testimony and her expert’s declaration, which drew on a variety of disinterested sources. To this we must add plaintiff’s evidence that a county sheriff who had “worked closely with the premises during the period of the attack and one year prior to the attack” told defendants they should “hire more security during the daytime.” A rational jury certainly could conclude police would not have given such advice unless they believed daytime security would have diminished crime at the complex. Evidently defendants themselves believed in the efficacy of security guards or they
The majority mischaracterizes plaintiff’s causation theory as depending on the notion that “her assailants were indeed unauthorized to enter” (maj. opn., ante, at p. 776) and, warping both causation and evidence law, requires her to “prove the identity or background of her assailants” (ibid..). The majority fails even to acknowledge, let alone evaluate, the detailed and specific evidence plaintiff presented regarding the perpetrators, location, and circumstances of the attack she suffered. Instead, the majority engages in misdirection, noting there were “other spaces where a rape could take place” (maj. opn., ante, at pp. 772, 111), and in “mere speculation . . . unsupported by any proven facts” (Showalter v. Western Pacific R. R. Co. (1940)
Again invoking policy, the majority expresses concern that “the ultimate costs of imposing liability for failure to provide sufficient daytime security to prevent assaults would be passed on to the tenants of low-cost housing . . . , adding to the financial burden on poor renters.” (Maj. opn., ante, at p. 111.) The majority does not mention the economic cost to tenants of allowing crime to flourish. As noted earlier in this opinion, such policy considerations relate principally to duty rather than causation. But even assuming the relevance of the assertion, and assuming in addition the truth of the majority’s unstated and unsupported premise that neither market forces nor regulation would cause landlords to absorb reasonable security costs, unlike the majority I am unwilling to assume that California renters, of whatever economic status, would elect to live in circumstances where they and their guests are subject to constant fear and, as in this case, the actuality of rampant crime and violent assault, in preference to a marginal upward pressure on rents.
Regrettably, plaintiff’s “assailants were never apprehended and their identity remains unknown to her” (maj. opn., ante, at p. 767). That she should be barred from the courthouse for this very reason, is both cruelly ironic and legally unjustified.
For the foregoing reasons, I would affirm the judgment of the Court of Appeal and allow plaintiff to proceed with her claim.
Mosk, J., and Kennard, J., concurred.
Notes
See, e.g., Bockrath v. Aldrich Chemical Co. (1999)
Nothing in the majority’s dictum discussing the 1992 and 1993 amendments to Code of Civil Procedure section 437c, the summary judgment statute, undermines these principles. (See maj. opn., ante, at p. 768 [conceding the amendments “ ‘did not change the fundamental requirement that the moving party prove its right to summary judgment’ ” and acknowledging that, as before, defendants must make “a showing that would forecast the inevitability of a nonsuit”].)
In Showalter v. Western Pacific R. R. Co., supra,