*1 Dec. S063612. 1999.] [No. P., Plaintiff and
SHARON Appellant, al.,
ARMAN, LTD., et Defendants Respondents.
Counsel O’Brien, L. of Peter B. Peter B. O’Brien and Duenckel Kelly Offices Law for Plaintiff Appellant. Martin, Maslach, Robinson; Greines, Baukol, & E. Stein Price
Early, Larry Richland, A. Olson and Respon- Marc J. Poster and Robert for Defendant & Arman, Ltd. dent Acker,
Acker, & Johnson and Kowalick Jerri Stephen Lynn Whipple, *4 APCOA, and Inc. A. Gina for Defendant Hogtanian Respondent Prindle, on & Amaro E. Yardumian as Amici Curiae behalf Decker and Gary APCOA, and Inc. of Defendant Respondent McCutcheon, Jr., Pacific and R. Legal
Sharon L. Browne Stephen and as Amicus Curiae on behalf of Defendants Respondents. Foundation Liebeler; Washington Daniel and Richard A. Susan J. Samp Popeo; Curiae and Foundation as Amici on Foundation Allied Educational Legal Defendants and behalf of Respondents. as Amicus for the for California Tort Reform
Fred J. Hiestand Association behalf of Defendants and Respondents. Curiae on Brobeck, B. for International & Harrison and Nicholas Waranoff Phleger Curiae on behalf of Defendants and Centers as Amicus Council Shopping Respondents. Charchut, Bonesteel, Thomas N. Rita Brown & G. Roy Weatherup,
Haight, S.A., America, N.T. & for Bank M. Caine Stephen Gunasekaran N.A., Association, Bank, Association Parking Parking National Fargo Wells Counsel as Defense and Association of Southern California of California on behalf Defendants and Respondents. Amici Curiae DeJean D. S. Fogel Bradley Roach Paul & Heafey, May, Crosby, Association, American Protective Guard Contract Security for California Pinkerton’s, Services, Inc., Inc., Protective Services Borg-Warner Corp., as Amici Curiae behalf of Defendants and Respondents.
Opinion BAXTER, J. Ann M. v. Center Shopping Plaza Pacific M), 863 P.2d we discussed the Cal.Rptr.2d 207] care commercial landlord’s and affirmed it includes duty taking of “reasonable secure common areas steps third
acts of occur in absence of such likely precau parties (6 tionary measures.” Cal.4th at p. case,
In this an unknown assailant assaulted sexually gunpoint in a commercial owned We defendants. must operated decide whether and to what extent defendants’ of care to their tenants that they when no had required provide security assaults garage, occurred on the premises during the attack years preceding upon We conclude that the plaintiff. occurrence of violent third sexual party assault in the subject garage was foreseeable to sufficiently support We therefore reverse the Court of requirement. contrary judgment of the and remand the Appeal matter to court with directions to judgment enter in favor of defendants. Background
Factual and Procedural Plaintiff Sharon P. conducted business in a Los accounting Angeles *5 office She a fee building. monthly in an paid assigned space park underground reserved for of the parking garage building. tenants office 8, 1993, a.m.,
On Thursday, 11:00 April approximately plaintiff parked in her car, As was assigned space. she leave her a masked preparing head, behind. assailant came from He held her up a forced her back gun car, into her assaulted her. sexually Arman,
Plaintiff (Arman), sued defendant Ltd. the owner of the premises, Inc., Services, and defendant doing business as Apcoa, Parking Inc. (Apcoa), which for provided parking services Arman. The complaint alleged, among other things, defendants’ failure to for users adequate security of the resulted in the attack parking garage Plaintiff upon plaintiff. sought distress, severe compensatory damages emotional pain suffering, medical and loss of income. expenses defendants moved for on the
Following discovery, summary judgment basis that neither of them to make the more owed garage not secure the attack on her was foreseeable. reasonably because in to defend- was submitted in of and following opposition evidence support motion. ants’ There
Arman the office 1982. purchased building parking garage entrance south- facing a bank on the floor of the with its ground building, building To the is a lot for west. north of surface building parking A on the side of the leads to a one-level building visitors. east driveway tenants. The tenant building garage subterranean reserved garage parking marked stalls. 200 feet 225 feet and contains 79 approximately corner of attendant from booth at northwest operates Apcoa’s parking lot, to the driveway the visitors’ several hundred feet from the entrance tenant garage. Arman, Simantob, a for daily
Zacaria
was
general
responsible
partner
8,
incident,
of no
from 1982 to
management
building.
April
He knew
in which
assaulted on
was
premises
anyone
physically
informed that armed
confronted with a firearm the tenant
He was
garage.
but,
at the
on the
floor
to his knowl-
ground
robberies had occurred
bank
injury.
none had
edge,
activity
garage
personal
involved
had been
seven times between
The bank’s internal records show it
robbed
one
February
January
1991 and
with
report
physical injury.
of 363
Records of the Los
Police
reflect
a total
Angeles
Department
crimes,
the 50
blocks
surrounding
occurred in
including
rapes,
square
office
for all of 1992.
first
During
just prior
building
quarter
assault,
crimes,
but no
were recorded.
plaintiff’s
rapes,
that the overall condition
claiming
Plaintiff submitted declaration
months
her
tenant
had deteriorated
several
garage
during
preceding
out,
It was
unusual for
to be
which would leave
lights
attack.
several
attack,
her
“had
day
darkened in several
On
places.
garage
from which someone
vantage
darkened areas
provided
points
several
could
a lone
in wait until after
influx
tenants
observe
lying
morning
areas
car
darkened storage
woman
in her
Several
arriving
easy prey.”
at various
as she
to hide. Plaintiff smelled urine
times
place
provided
She never saw defendants’ employees
walked
and from
garage.
*6
clean,
view,
or
and in her
the
was not
garage
monitor
the garage,
inspect
attack,
lit,
the
camera
safe
After the
she learned that
security
well
or secure.
not been
for several months.1
garage
working
in the
had
consultant,
from a
security
Defendants submitted
declaration
private
McGowan
the
Chief
H.
inspected
retired Pasadena Police
Robert McGowan.
attack
garage 18
after
the
and submitted
attorney
1Plaintiffs
examined the
months
the
objections
declarations
substantially
plaintiff’s.
declaration
Arman filed
found the lighting
tenant
17 months after
assault and
garage
plaintiff’s
from
of the
the other in
garage
any
“sufficient to
view
one side
clearly
underground
he conceded in his
direction.” Although
deposition
wait, he
facilities are
for criminals to lie in
believed
potential places
burden on
would have been an unreasonable
security guard
posting
because
the
small size and its minimal
no criminal
garage’s
defendants
and the
activity,
relatively
garage,
the
unobstructed view
the
throughout
He
it
been
of drivers
and
also
would have
entering
leaving.
thought
presence
and to
unreasonable to
of a closed circuit television
operation
require
require
someone monitor
that looked
investigate anything
suspicious.
view,
did
McGowan’s
the bank robberies
the
floor
not indicate
ground
crime
of a sexual
in the
greater likelihood
assault
occurring
underground
because the bank is located on the other end
structure from
garage
of the
the
the
entrance and
“behavior” of a bank
is to
garage
immediately
robber
area,
the
to lie
not
in wait
a victim.
escape
The trial court
the motions based
the
granted
foreseeability analysis
upon
articulated in Ann
supra,
The Court of reversed a divided vote. The by majority determined Appeal Ann that M. was not because commercial structures controlling such parting and, nature, the one as here are dangerous” their “inherently very facilitate of crime commission and increase its likelihood. The majority concluded notwithstanding the absence of incidents sexual assault the tenant criminal assaults on garage, were patrons a matter highly of law given inherently dangerous nature of commercial underground garages, number of criminal increasing assaults structures occurring generally, conditions ex- physical at this isting (robberies) seven felonies particular garage, serious occurring floor ground during bank two-year period preceding foreseeable, assault. After that the assault plaintiff’s determining set forth majority analyzed policy considerations in Rowland v. Christian Cal.2d 443 P.2d A.L.R.3d 496] concluded that defendants owed a of care to plaintiff “reasonable” in the tenant which garage, “might might include The matter was remanded to allow a security guards.” jury court, rulings her counsel trial but the record contains no on those objections. objections having We plaintiff’s therefore deem waived and view evidence as admitted part purposes been in evidence as appeal. record 437c, 1; Proc., (b), (c).) at p. Code Civ. subds. § *7 based on totality determine the issues of breach causation the case. circumstances presented a matter of
The dissent it foreseeable as majority finding criticized for underground law that criminal conduct will occur commercial always view, the Ann M’s structures. In its majority improperly parking replaced duty “inherently dangerous” based on with concept foreseeability numerous condition That dissent theory. theory, argued, apply structures, subways, other residential including parking types properties, theaters, office residential and movie building hallways, building hallways, used for other and could be broadly expand concept foreseeability laundromats, rooms, college such as banks and emergency facilities all-night dormitories.
We defendants’ for review. granted petitions
Discussion To her action in must show prevail negligence, plaintiff and that the defendants owed her a breached the legal duty, they duty, M., (Ann her supra, breach was cause of proximate legal injuries. in their 673.) defendants summary Cal.4th Since obtained judgment favor, de to determine [they “we review the record novo whether have] case or demon negated necessary element conclusively plaintiff’s that under a material issue of fact that requires strated there hypothesis (Id. 673-674.) trial.” process (Kentucky is a court.
The existence of a of law question Cal., (1997) 14 Chicken Inc. v. Court Superior Fried 1260]; P.2d 6 Cal.4th at Ann Cal.Rptr.2d Likewise, the existence when determine “[fjoreseeability, analyzed of law to be decided the court.” duty, by is a question issue in this case is whether 6 Cal.4th at The critical sufficiently assault a third in the tenant a sexual party defendants secure that area against foreseeable to requirement support crime. affirming offers rationales for the judgment Plaintiff two principal First, that, because commercial she contends underground Court Appeal. a higher them inherently they carry structures are with dangerous, obligation of violent criminal attacks with corresponding claims' Although more than minimal measures. security just she asserts that security guards,” requiring “is not asking she
1189 Second, that, the court find.” she even argues “is should so guards justified, if the the violent her hiring was not attack security guards required, upon nature of the dangerous was foreseeable—due to the sufficiently inherently the bank the and the robberies elsewhere on parking garage, premises statistical crime rate of the area—to defendants a surrounding impose upon words, minimal like a duty things protection. plaintiffs “[sjimple cameras, clean, lit with walk brightly garage, working security periodic [by all that someone cares throughs existing give personnel], appearance about criminal this and sends a to message go potential elsewhere.”
A. Ann M. and the Hiring Security Guards now it is
By well established landowners must maintain their condition, landlord, ain safe and that the case premises reasonably the general of maintenance includes “the take duty reasonable duty steps common secure areas acts of third parties M., to occur in absence likely (Ann of such precautionary measures.” added.) 6 Cal.4th at italics p.
To resolve whether the sexual attack
was
upon
sufficiently
plaintiff
M.,
foreseeable to
Ann
require
hiring
security guards, we consider first
supra,
Emphasizing foreseeability factor” in the exist- determining ence of Ann duty, M. determined that “a action duty take affirmative control the of a third wrongful acts will be where party imposed only conduct (6 can reasonably Cal.4th at Ann M. then anticipated.”2 revisited Huntington Isaacs v. Hospital Memorial Cal.3d foreseeability, 2In addition to other determining factors considered courts in the exist “ ence degree in a case particular certainty include ‘the that the injury, suffered closeness connection between the and the defendant’s conduct (Isaacs), P.2d had which abandoned traditional 653] incidents’’ rule of favor “prior approach “totality focused on circumstances.” *9 law, 677-678.) In a from case Isaacs had concluded that departure prior pp. of of harm should be determined consideration ordinarily foreseeability upon is in of all the and that the absence of “what reasonable circumstances” light did existence a duty. similar incidents of crime not the of negate prior 135.) (Isaacs, 38 Cal.3d at The occurrence of similar incidents supra, p. prior “not to was deemed to determine but “helpful” foreseeability, required (Ibid.) establish it.” M.,
As courts s noted in Ann lower had the wisdom of Isaacs’ questioned to of and California be the lone totality the circumstances approach appeared (Ann in such a rule the business landowner context. jurisdiction utilizing 677-678.) to at M. was not reluctant Isaacs Cal.4th Ann revisit supra, pp. the the been because of circumstances had viewing totality unnecessary (6 is, 678.) the result case. at That the factor in that Cal.4th p. could met the rule have been in Isaacs under traditional requiring prior (Ibid.) similar incidents. Isaacs, of
In contrast to Ann M. concluded in the light vague the ness of to deter crime and obligation the to provide patrols adequate costs in an and social that are significant monetary implicated imposing of in order to find obligation, “high degree foreseeability” required the of the a landowner’s of care includes duty hiring security guards of scope (6 679.) Ann M. violent crime third Cal.4th protect against parties. p. ever, if can be cautioned that the requisite degree foreseeability “rarely, the absence incidents of violent crime on the similar proven prior otherwise,” omitted.) “To M. (Ibid., fn. hold Ann landowner’s premises.” and, in be to unfair burden landlords “would emphasized, impose upon effect, the safety, would force landlords become insurers public (Ibid.) state.” to well-established in this contrary policy record, M. that the its to the Ann determined analysis plaintiff Applying high degree foreseeability necessary require there failed to establish the (6 the areas the center. the common security guards shopping posting First, had there no evidence the defendants 679-680.) Cal.4th at conduct, suffered, policy injury preventing attached to defendant’s the the moral blame harm, community of to the consequences extent of the burden to the defendant future cost, breach, availability, resulting liability for and the imposing to exercise care with ” 6 Cal.4th at insurance the risk prevalence involved.’ Christian, other factors may dictate 69 Cal.2d Rowland quoting These against party duty to include third against expanding protecting of a landowner’s crime, foreseeability. even evidence of where there sufficient assaults, occur- notice of the and bank robberies allegedly purse snatchings Second, notice, had been ring assuming even there premises. had conceded were not in nature crimes prior violent assault she suffered. neither the evidence Finally, regarding transients, crime nor evidence statistical rate presence area, surrounding was of sufficient to establish foresee- type requisite (6 ability. case,
If we were foregoing to apply analysis present were defendants their required security guards garage. robberies, Significantly, which all a bank targeted specifically on the elsewhere did not involve violent attacks premises *10 were not similar the sexual assault anyone, sufficiently inflicted upon to establish a plaintiff high degree of would justify M., (Ann 680.) of such an 6 imposition obligation. Cal.4th at supra, p. Moreover, the analysis forecloses the that evidence of the statis possibility area, tical crime rate of the even if surrounding 50-block considered combination with the bank robberies the evidence that a person assault, urinated and in or about the to the persons garage slept prior (Ibid.) sufficient establish requisite foreseeability. foreseeable, argues Plaintiff that her injury of the absence regardless violent attacks on the She prior relies on a footnote in Ann M. in premises. that, which we commented: “Ann M. offered no evidence to like a show store, or an parking garage all-night convenience a retail store in a located ‘ center “an creates crimi- shopping especial temptation opportunity ’ 622, nal (Gomez misconduct.” v. Ticor [(1983) 145 Cal.App.3d 628 [193 killed to car in v. Cal.Rptr. returning garage]; Cohen parking 600]] [victim 130, Corp. (1984) Southland 157 141 Cal.App.3d Cal.Rptr. 572] [rob- [203 Therefore, bery all-night store].) convenience we need consider this case whether some commercial are dangerous so types property inherently that, incidents, even absence of similar security guards providing M., will (Ann fall within of a landowner’s of care.” 6 scope duty supra, 680, addition, Cal.4th at fn. In quotes extensively from Gomez (1983) v. Ticor 145 622 Cal.App.3d (Gomez) to Cal.Rptr. argue [193 600] that violent crime in an commercial underground parking garage highly foreseeable because very nature of such structures makes them prone third criminal attacks on their and users. party patrons deliberation, careful we the view that
Upon reject underground parking are structures “so inherently dangerous even in absence of prior incidents, within will fall providing security guards 680, landowner’s of care.” 6 Cal.4th at Several into considerations factor our decision.
1192
First, we not directed to evidence or authorities from which we are structures, underground regard conclude that all might confidently locations, of their characteristics and are physical prone less individual Moreover, a are in nature.3 dangerous and therefore inherently violence cited and amici indicates of the decisions to us curiae survey by parties are and residential aboveground buildings just prone commercial sex third Ann 6 (E.g., violent crimes unknown parties. store]; 42 (1986) Green Owners Assn. Village 671 Frances T. v. [mall 490, 456, 573, P.2d 723 59 A.L.R.4th Cal.Rptr. Cal.3d 498 447] [con [229 950, unit]; (1994) 25 Cal.App.4th dominium Pamela W. v. Millsom 953 [30 unit]; (1981) Riley v. Marcus 125 Cal.App.3d Cal.Rptr.2d 690] [condominium 103, Trading v. Superior 105 Kwaitkowski Cal.Rptr. [apartment]; [177 827] 324, (1981) lobby]; 325 [apartment Co. 123 Cal.App.3d Cal.Rptr. [176 494] Stores, (1981) v. 123 39 Wingard Cal.Rptr. Inc. Safeway Cal.App.3d [176 warehouse]; Venture Hollywood Superior Blvd. 320] [commercial (1981) Court Cal.App.3d Cal.Rptr. [apartment]; 528] [172 O’Hara v. Seven Trees Corp. Cal.App.3d Western the absence of for the categori solid support [apartment].) 487] are inherently dangerous, cal conclusion that all parking garages we are reluctant to so in to other distinctly types comparison premises, out of the substantial monetary owners for single imposition guards. social costs associated with the hiring *11 Second, Gomez, does not support adoption Cal.App.3d cases underground a se in foreseeability involving parking rule per in a garage court that violent crime parking structures. The opined Gomez car and in (1) be because: cars and stereos contents located may foreseeable thieves; walls, for the low “high garages tempting targets such present and give and cars’ owners” in thieves garages the absence ceilings “deserted, tasks; (3) their labyrin- vandals time and privacy complete for at them night, likely thine nature” of makes garages, places “especially wait”; (4) a to lie in and who patron interrupts robbers garage rapists (145 crimes attacked criminal. violently by such could progress 628.) But did not hold that the consider- foregoing at Cal.App.3d p. Gomez a matter of crime in structures foreseeable as ations render violent parking law, or in at issue. either in general particular case, a who was shot
Unlike involved garage patron the instant Gomez a robbery occurring underground he inadvertently when interrupted parking data the crime rate in comparing record contains statistical appeal 3The court, the dissent types parties In garages properties. with for other this the rates by Department United published statistics States refer to criminál victimization various matter, request proper to consider statistics since a procedural As a we decline Justice. event, are any drawn from the statistics judicial never made. In conclusions for notice was reasonably subject dispute. commit There was no crime had been garage. indication Gomez of at acts ted in the but there was evidence least 16 garage previously, (145 theft and above the building garage. p. vandalism in the Cal.App.3d evidence, 628.) could In of that court concluded that a light jury Gomez find that acts of theft and vandalism foreseeable in the struc were parking ture an act or while and that who of theft vandalism patron interrupted would be attack the thief or subject car violent returning parked (Ibid.) vandal. found it that the there had insignificant court patron vandalism, than of theft “the rather an act since interrupted robbery, harm, i.e., fatal incident fell within the of the alleged scope (145 attack on a act.” who criminal patron interrupts Cal.App.3d 1.) incident, To its buttress conclusion regarding foreseeability added; structure, court its of a very defendant operation “[I]n Gomez be said to may have created ‘an especial temptation opportunity misconduct,’ thus of the attack. increasing (Prosser, (4th 1971) Torts ed. note this observation we making nature of a invites acts theft and unique which parking complex, structures, stereos, vandalism. In such (car numerous targets car tempting contents, thief; walls, themselves) the cars for the low displayed high and the ceilings absence cars’ owners the thief vandal to allow work in him time to his task. Such circumstances privacy give complete addition, deserted, increase the likelihood of criminal misconduct. In structures, nature labyrinthine of these at night, makes them especially likely places robbers and to lie rapists in wait. and violent Robbery, rape, crimes, who consequences anyone these thus also be interrupts (Gomez, foreseeable.” Cal.App.3d matter,
As a we preliminary observe erred in that foresee- holding Gomez when ability, to determine analyzed the existence or is a duty, *12 Gomez, of fact for question 145 jury. at (Compare supra, Cal.App.3d p. 628, M., Gomez, with Ann 678.) 6 Cal.4th supra, at More p. significantly, review, close to upon fails us that and are persuade robbers more rapists in to lie wait in likely underground than structures elsewhere that parking “ of an operation underground creates structure ‘an parking especial ” for temptation opportunity’ sexual assaults and other crimes of a Gomez, (See 628, violent nature.4 added.) at supra, p. italics Cal.App.3d In Ann we acknowledged unfortunate circumstance that is “[i]t difficult, if not to envision locale to the impossible, where public open indicated, 4As “especial phrase. credited Prosser on for the Gomez temptation” Torts (Gomez, 628, Prosser, supra, (4th 174.) Cal.App.3d p. 1971) at quoting ed. The p. Torts Keeton, phrase (Prosser in appears also the latest edition of & Prosser Keeton on Torts. (5th 1984) 201.) Torts posits types ed. Neither premises § treatise that certain create crime the occurrence of violent seems improbable.” random, at Not today’s violent crime “endemic in only (ibid,.), one a host society” easily but can think of of locations and businesses another, the crimi- one reason attractive to present opportunities all society. nal element of As one commentator has observed: “Because extent, all be businesses attract crime to some could characterized they as times, At various courts have described ‘inherently dangerous.’ parking facilities, facilities, laundromats, banks, col- room all-night emergency as attract that a dormitories facilities that crime. mere fact lege being conclusion, crime has almost one to draw the after always occurred allows fact, Moreover, that the inherently dangerous. any duty were premises on the idea that the business attracts crime the fact ignores premised because do not such businesses are viable many economically precisely they are security on-site labor. Once forced require any proprietors machines, at or at teller laundromats bank those guards all-night operations which, rather cease become It serves no one profitable. impose customers, than they forces the businesses which protecting frequent (Kaufman, close.” Business to Protect Pays: Duty When Crime Landlords’ Tex. Customers Criminal Acts Committed on the Premises 31 S. from 112-113, omitted.) that the L.Rev. fns. Were we find occurrence fore- underground highly violent crime commercial structures law, virtually seeable matter of we the door to opening as a would charac- limitless over other could also be litigation what types property terized as “inherently dangerous.”
Moreover, crime that violent be foresee- might while recognized Gomez structures, notion that able it underground parking implicitly rejected are so guards such structures inherently dangerous security required that, most, Indeed, their court held safeguard users. Gomez there have been to take what it viewed owner required crime, i.e., “minimal maintaining operational precautions” against 632-633.) (Gomez, monitors and intercoms. Cal.App.3d crime in underground parking the view violent Finally, adoption lead to as a matter of law would incongruous structures is highly misconduct, but more recent treatise especial temptation opportunity (Id. two conduct of the defendant did so. particular cites cases in which police detained driver after the had One involved a vehicular death caused an intoxicated keys ignition. negligently him to remain in his car with permitted the driver but then *13 461].) (Green other City Livermore The Cal.App.3d v. of dynamite the had a that defendant involved deaths from bomb made thieves with Co., 1981) (Bridges Kentucky Inc. Stone (Ind.Ct.App. 408 N.E.2d negligently stored. (Ind. 1981) 125.) garages involving parking cases lots or 425 N.E.2d Of those few vacated phrase, none holds accompanying “especial temptation" are the that cited in discussions inherently dangerous. premises that such case, instance, results. In the the record reflects that the under- present had of to tenant incidents crime for 10 ground garage years reported prior the assault evidence of criminal acts on the only upon plaintiff. prior bank street of the consisted of seven robberies on the level premises discussed, office located above the structure. As building already of Ann M’s this record leads to the conclusion application analysis defendants’ of care did not for the duty hiring security guards include because the bank robberies were not sexual sufficiently assault crime to Nor such a degree establish high foreseeability. be found if the assault duty had occurred in other areas of the office of the common building instead or at garage (e.g., hallway business). plaintiff’s place
Yet, under rule advocated by plaintiff, defendants would be saddled with the significant burden of under- hiring security guards to patrol ground garage because it is simply without underground garage, regard of the dissimilarity criminal incidents elsewhere on the premises Indeed, to the garage’s 10-year history crime-free existence. a rule would burden all virtually owners commercial underground garages landlords, contravention of settled state should not be policy they, M, forced to become the (See insurers of Ann 6 Cal.4th public safety. at
B. Other Measures Security
In Ann we reaffirmed our commitment to the that the principle landowner’s third provide protection against crime is party determined in part by balancing of the harm foreseeability against “ ‘ burden be (6 Cal.4th We imposed. cases explained: “[I]n where the burden of future harm is preventing great, high degree hand, foreseeability bemay On the required. other cases where [Citation.] harm, there are reasons strong can policy harm be preventing means, prevented by a lesser simple be re degree foreseeability may Or, quired.” as one court has accurately appellate explained, duty [Citation.]’ in such circumstances determined by balancing ‘foreseeability’ ‘burdensomeness, criminal acts vagueness, efficacy’ or, (Gomez measures. proposed security v. Tic supra, 145 Cal.App.3d 631.)” (Ann 678-679.) Plaintiff relies on the even if foregoing argue passage defendants Were not to hire required guards because a high degree established, cannot the occurrence of violent third party crime in underground garages defendants sufficiently
1196 burdensome means. were to less provide protection by simple required under a “minimal to obligation” keep to defendants were According plaintiff, clean, installed lit and to hook a brightly up previously tenant garage over and to require camera located the elevator security garage, rea- Plaintiff’s garage. to walk existing through personnel periodically is flawed. soning
In first it is whether measures plaintiff’s proposed place, questionable that been effective of violent assault protect against type would have record, instance, contains no evidence that occurred here. The camera at issue was even aimed toward the area security Moreover, do not was attacked. surveillance cameras where garage that deter crime and criminals do not confine their activities locations all are or untidy unkempt. been
It is whether the identified measures would have also questionable As defendants guards. burdensome than the hiring security less out, be surveillance cameras ineffectual may protect correctly point are to continuously crime unless there who available employees effectively monitor transmissions and when respond suspicious video contention that Similarly, garage criminal behavior is observed. plaintiff’s “minimal have to arrange owners and a operators obligation” periodic that have existing they assumes walk-throughs garage by personnel But trained to deal with violent crime. workers available who are readily costs are monetary even if are available and higher such employees commercial under- owners and operators implicated, requirement through existing monitoring ground garages provide security “adequate” where, define, vague impossible especially personnel here, has been free crime a substantial garage period particular issue of users ever raised the time and there no evidence with the owner or the safety operator. personal addition, the view that “adequate a number of courts have criticized that is effective and well-defined measure security lighting” simple Blvd. Hollywood 7735 Venture injuries. (E.g., crime-related preventing Court, aof vagueness [noting Superior supra, Cal.App.3d Co., Trading Kwaitkowski v. Superior lighting]; provide adequate as a utility light [agreeing Cal.App.3d Gomez, at p. cf. Cal.App.3d measure security is questionable]; intercoms, unlike monitors 632 [suggesting operational warning effect preventing bulbs have light appreciable moreover, courts, abstract negligence have claims of crimes].) rejected Other no connection and maintenance of where property lighting pertaining
1197 to alleged was shown.5 Nola M. v. injuries (E.g., University Southern of 421, (1993) 16 if 435-439 Cal.App.4th Cal.Rptr.2d [20 97] [even California defendant owed a and untrimmed and duty lighting protection, foliage trees did not cause where there was no evi proximately injury plaintiff’s bush]; dence that her in attacker hid the shadows or behind a tree or 200, B. (1986) Constance v. State 178 Cal.App.3d [223 211-212 of California was not a cause of Cal.Rptr. [lighting injury proximate plaintiff’s 645] she in because saw her attacker at her staring standing light prior attack]; (1985) Noble v. Los Inc. Angeles 168 Dodgers, Cal.App.3d 915-916 a Cal.Rptr. assuming [214 protect, plaintiffs 395] [even must than more abstract unconnected to prove negligence the injury].) aside
Setting concerns regarding burden efficacy plaintiff’s measures proposed security questions regarding issue proximate cause, the record remains deficient in establishing foreseeability of violent attacks one such in the against plaintiff. record Viewing light most favorable to it shows that robbers a plaintiff, repeatedly targeted bank on floor of the in ground the 27-month subject premises period incidents, the sexual preceding assault. from those there is no Apart evidence of other crimes or on the in against property either persons premises, the office or building Since sexual underground parking garage. assault is not a risk foreseeable associated with bank robberies reasonably (see People (1993) 21 Nguyen 533 Cal.App.4th Cal.Rptr.2d [26 323] that [observing consummated rapes during the of a bank robbery appear be a rarity]), the bank robberies did not the vicious assault commit- portend ted upon plaintiff. decisions,
Two Cohen v. Southland Corp. Cal.App.3d Gomez, (Cohen) and supra, 145 Cal.App.3d support 572] somewhat broader with to assaults concept regard occurring cases, that have some of nonassaultive crime. In those properties history the courts it be indicated would reasonable to that anticipate person be he violent attack if or she were be at an subject otherwise present foreseeable crime on the he or if or she were to premises such interrupt Thus, reasoned, crime in progress.6 they violent assaults that occur in manner “minimal” may sufficiently taking require case, plaintiff 5In this inadequate lighting contends the tenant resulted in provided hiding several darkened places vantage points areas from which her attacker , record, however, lying could been have wait for a victim like her to contains no arrive. actually any evidence her attacker used darkened areas to facilitate his assault. accept, argument, 6We for purposes apparent robbery conclusion that a crime of Gomez’s a parking be foreseeable in at least structure when 16 crimes of theft vandalism have Gomez, (See premises occurred on the building the office above the structure. p. 628.) Cal.App.3d before even had never though subject expe- measures premises (Cohen, an Cal.App.3d rienced assault crime. injury-producing Here, 139-140, 142-143; Gomez, supra, 145 Cal.App.3d course, offered no evidence that her attack had suggesting (i.e., foreseeable crime on the bank premises connection to otherwise falls the broader the incident outside even robbery). Accordingly, *16 reasonable in Cohen and foreseeability contemplated Gomez. 50 records crimes in the occurring the
Finally, police department square case. this blocks the do not aid On surrounding parking plaintiff’s violent crime we note that Ann M. left that possibility point, open in the similar incidents if foreseeable on a business absence of property prior occurred on the substantially violent crimes previously premises its 6 Cal.4th supra, business establishment in immediate proximity. 679, here no information at But the evidence contains provided p. the location of crimes within identified regarding reported to the Nor has plaintiff sector and no indication their proximity garage. that statistics. defendants were aware the police department shown short, tenable basis establishing In such evidence provides foreseeability.7 that Village have not overlooked the fact Frances T. v. Green Owners
We
Assn.,
Community
42
Peterson v.
Francisco
supra,
College
Cal.3d
San
1193], and
v.
(1984)
Dist.
36 Cal.3d
685 P.2d
Cal.Rptr.
Slapin
799 [205
(1976)
484
Airport
Los
International
Angeles
Cal.App.3d
[135
tort
296], allowed victims of violent crime to maintain
actions premised
or maintenance
Those
theories of insufficient
upon
lighting
property.
decisions, however,
in
of demurrers
com-
were all decided
the context
which,
true,
if
would establish the
containing allegations,
plaints
proved
(Frances
Village
of crime on the
T. v.
Green Owners
foreseeability
premises.
Assn.,
alleged
at
facts
Cal.3d
victim’s
[rape
complaint
Clohesy
Supermkts.
substantially
case
from that in
v. Food Circus
7The record in this
differs
Jersey
(Clohesy),
in
Supreme
a case
which
New
1017]
It is difficult to with the abstract quarrel that proposition provision maintenance, and improved lighting surveillance cameras and operational periodic the tenant walk-throughs owned and defend- garage operated by ants have diminished risk might of criminal attacks occurring But absent garage. any incidents other indications of a location, reasonably foreseeable risk of violent criminal assaults in we cannot conclude defendants were secure the area required against crime.
Disposition The contrary of the Court judgment and reversed the matter Appeal is remanded to that court with directions to enter in favor of judgment defendants. J., Kennard, Chin, J., J., Brown, J., C.
George, and concurred. WERDEGAR, J., Like the Concurring Dissenting. I majority, fully embrace that “the proposition provision of and main improved lighting tenance, operational surveillance cameras and periodic walk-throughs tenant garage owned by defendants have diminished the operated might
1200 ante, attacks garage.” (Maj. opn., risk occurring measures, such as imagined, Such or others might readily alarms, enhance intercoms or strategically security clearly placed his her safety security user’s sense when personal car and an exit. traversing facility above, landlord in the ab
Notwithstanding has absolute duty, measures; stract, rather, a to take some or all such landlord’s take “duty affirmative acts third action control the will be wrongful party (Ann can be M. v. reasonably where such conduct only anticipated.” imposed 666, (1993) 6 Center 676 Shopping Cal.Rptr.2d [25 Plaza Pacific 137, M.), T. (Ann Village 863 P.2d Frances v. Green Owners citing 207] 490, 573, 456, (1986) 42 Cal.3d 501 723 P.2d 59 Cal.Rptr. Assn. [229 this, 447].) of tort A.L.R.4th As stated in Ann “In as in other areas we law, is a crucial factor in the existence determining duty.” 676, (6 (1985) Hospital Cal.4th at Isaacs v. Memorial 38 citing Huntington 356, 112, (Isaacs); P.2d Lopez Cal.3d 123 Cal.Rptr. [211 653] (1987) 436].) Corp. Cal.App.3d McDonald’s than mere rests more Foreseeability, regards duty, possibility or a measures diminish the might one combination assorted taking any Rather, determined risk of criminal attacks. such circumstances is “duty ‘burden of the criminal acts by balancing ‘foreseeability’ someness, measures.” vagueness, efficacy’ proposed v. Ticor citing Cal.App.3d Gomez *18 600].) to the test set I the adheres forth
Consequently,
majority correctly
believe
M.,
it
“absent
similar incidents
other
in Ann
when
states
any prior
criminal
in
foreseeable risk of violent
assaults
reasonably
indications of
location,
were
to secure the
we cannot conclude defendants
required
added;
ante, at
italics
see Ann
area
such crime.”
against
(Maj.
p.
opn.,
I therefore concur in the majority’s reversal below. judgment dissent, however, I from the to the extent its majority opinion exaggerated on, of, treatment emphasis a measure the separate security guards, ante, majority “is not for” acknowledges asking (see plaintiff maj. opn., 1188), be read analytically distinguish question whether landlord is such from obligated guards question scope duty, There is no generally. distinction. The analytical scope landlord’s “to take reasonable to secure common areas steps against (Ann M., foreseeable criminal acts third parties” supra, 6 Cal.4th at p. 674) and, noted, on the depends circumstances “is determined previously aby balancing the criminal ‘foreseeability’ acts the ‘burden- someness, vagueness, (id. efficacy’ measures” proposed security 679). In Ann in a context where the contended were the patrols (id. “first line of defense” the 673), landlord owed we determined a high degree to find required provision of security guards to be within the doing, landlord’s so duty. Isaacs, “revisit[edj” “refin[edj” we 38 Cal.3d which had relevant, essential, determined that similar incidents but were *19 not, however, a existence of such We did create duty. thereby a form special duty analysis such claims. Both after “before and our decision Isaacs, we have that recognized of the is determined in duty part balancing harm the burden duty be at imposed.” supra, p.
I further dissent as the insofar be read majority may opinion impliedly a reinstitute similar incidents rule such as we demonstrated in pure prior (Isaacs, Isaacs flawed in numerous 38 Cal.3d at “fatally respects.” 125; 125-126.) see at p. generally, id. we As majority acknowledges, have “left that violent crime a open foreseeable on possibility crimes similar incidents if violent
business absence property prior similar business substantially occurred the premises previously ante, 1198, citing its immediate (maj. p. establishment in proximity” opn., 7) there are “other Ann 6 Cal.4th at or where risk criminal assaults indications of a foreseeable of violent reasonably therefore, ante, case, 1199). that In this location” (maj. opn., relevant, but to the attack on absence of incidents similar prior plaintiff care duty conclusion “that defendants’ not and majority’s dispositive, the bank did because hiring security garage not include the guards crime to establish not similar to sexual assault sufficiently robberies were correct, ante, 1195) is but high foreseeability” degree (maj. opn., indications of the record “other only [legally because discloses sufficient] in that location” foreseeable risk of violent criminal assaults reasonably (id. 1199).1 at p. not, incidents rule would a landlord is as
Emphatically, it, one assault before the failure to take appropriate have entitled to free liability. him or her to the risk of civil subjects measures security MOSK, To hold that the of this underground garage, I dissent. operator J. cameras, broken lights, with its alleged hiding places, missing lacked neglect, any duty absence of and other evidence supervision, for business in a fit and safe condition matter of law maintain the premises that lacks such so as not to attract crime—and implicitly operator unjust. And the result is demonstrably duty—defies logic. I that was assaulted in an sexually underground Sharon P. she alleged at- that dilapidation She claimed in essence the garage’s parking garage. not owed a duty The trial court ruled was tracted her assailant. that the for defendants. It reasoned of care and entered summary judgment to a of care. crime rise sufficiently give A action, wrongful of another’s To recover for the consequences purportedly care, that it breached owed a duty the victim must show the tortfeasor proof case—police department in this majority proffered agree plaintiff’s 1I with the surrounding the square in the 50 blocks during previous crimes months records of *20 crimes)—does not a tenable basis establish (recording out rapes 2 of 363 ante, 1186, 1198.) ing foreseeability. (Maj. opn.,
1203 harm, its that the breach caused the victim duty, is proximately entitled result. damages (1998) to as a v. Inc. 18 money (Artiglio Corning, 604, 479, 1313].) Cal.4th 614 This 957 P.2d is the bedrock Cal.Rptr.2d [76 elements, law. these is a negligence ordinarily duty Of only question court.1Thus, law to be resolved that the we existence of by routinely say Cal., is a duty legal (Kentucky Fried Chicken Inc. v. question. Superior 756, 814, (1997) Court 14 Cal.4th 819 927 P.2d Cal.Rptr.2d [59 1260] Chicken).) Fried (Kentucky courts the requirement duty gives ability to limit for reasons liability of social Vacaville policy (e.g., Hoff v. Unified 925, 811, (1998) School Dist. Cal.4th 522]), 19 933 968 P.2d Cal.Rptr.2d [80 lest the infinite reach of tort with a theoretically liability paralyze society harm, rule that any action no matter eventually leading how is remotely, Thus, actionable. an actor has no legal avoid unforeseeable harm. duty (Ann (1993) 666, M. v. Center 6 678 Shopping Cal.4th Plaza [25 Pacific 137, (Ann P.2d M.).) 863 Cal.Rptr.2d 207] case, however,
In this decide that had majority wrongly defendants duty maintain the as not so premises guard against attacks on people therein. That is settled Civil utterly contrary legal Code section principles. 1714 in relevant one . . provides part: “Every is . for an responsible injury occasioned another by his want of care ordinary or skill the manage Thus, ment of his . . . .” “California law property landowners to requires maintain land in their in a possession control safe reasonably condition.” 666, 674.) 6 supra, Cal.4th This obligation “includes a to take ‘duty [i.e., affirmative action to control guard wrongful acts third against] which threaten persons invitees where the has reasonable cause to occupant [i.e., anticipate such acts and the probability injury resulting foresee] ” Chicken, 814, (Kentucky turn, therefrom.’ Fried 14 Cal.4th “ ‘foreseeability . . . includes whatever is likely enough setting modem life that a take reasonably thoughtful account of it in [person] Moreover, guiding conduct.’ . . . practical it settled that what is required to be foreseeable is the general character of the event harm . . . [and] its nature or manner of precise occurrence.” v. & Tel. (Bigbee Tel. Pacific 49, 857, (1983) Co. 34 Cal.3d 57-58 947].) 665 P.2d Cal.Rptr. [192 this,
As to a case such which victim sues pertinent the possessor land for a crime committed her a third ... “duty party, Whether defendants breached their is a for the question jury of fact to decide. (Mexicali 617, 145, (1992) v. Superior Rose Court Cal.Rptr.2d 822 P.2d [4 1292].) questions So are the whether proximately plaintiff’s defendants’ conduct caused 508, injuries (1978) (Hoyem City v. Cal.Rptr. Manhattan Beach Sch. Dist. 22 Cal.3d 520 [150 (Torres 851]), City 585 P.2d compensation and the amount of owed them Los Angeles 906]). 58 Cal.2d P.2d
1204 the criminal acts of of the ‘foreseeability’ determined a balancing ‘burdensomeness, mea of the efficacy’ and vagueness, proposed 666, M., M.’s (Ann balancing Ann sures.” 6 Cal.4th supra, Applying test, increase that a land of its neglect property one observes possessor’s conduct, a and thus create of third criminal the party invites violent crime. or deterioration that ameliorate any dilapidation 112, (1985) 38 Cal.3d 129 (Isaacs v. Memorial Huntington Hospital [211 666, & 356, 653]; cf. 6 Cal.4th 677-679 P.2d Ann 695 Cal.Rptr. increases, the 7.)2 as the burden on imposed & does Foreseeability fns. 6 acts, to the extent that third land to guard against parties’ possessor a reasonable land pos three were and would notify those factors present the its invitees could be injured. sessor of potential known, As on is well summary judgment. This case comes before us meets the if the granted moving party motion is summary judgment properly and that it is triable issues fact burden of there showing Inc., supra, 18 (Artiglio Corning, as a matter law. v. entitled judgment 604, if, if, the meets burden 612.) Thus but the land only possessor law, the as a matter the character property showing in the aggregate, on the viewed vicinity, crime history property land of the potential notice to a reasonable give possessor would invitees, granted. motion summary to its is the judgment properly harm burden, course, to meet. should difficult The foregoing Block (Hayman for a trial.” v. is not “a substitute full Summary judgment 629, 293].) “The (1986) purpose Cal.App.3d [222 discover, but is not to issues try merely summary judgment procedure affidavits, are issues to be tried whether there medium through of trial.” analysis evidence which demands whether parties possess (Colvin Gardena Cal.App.4th v. City this, in a case such 234].) factually Especially complex Cal.Rptr.2d in the form of all of their evidence cannot be expected present parties affidavits. case, this it facts of alleged outlined above
Applying principles It motion was summary that granting judgment improper. clear have possessor land foreseen that whether reasonable 2In Isaacs we held nature, factors, following among “the others: depends conduct possibility of criminal (Isaacs Huntington Hospital, Memorial premises.” and location of defendant’s condition 112, 129.) totality of circumstances test about a expressed Ann M. doubt 38 Cal.3d indeed, Isaacs, regard; M. noted that under in this Ann but did not overrule Isaacs contained here, high degree plaintiff might alleges P. establish to those Sharon circumstances similar foreseeability. supra, 6 Cal.4th *22 whether, determine a to evaluate the evidence and under all jury conflicting circumstances, knew of or should have the defendants anticipated of criminal conduct in their and failed to garage, guard possibility it it or even invited the deteriorate. against by letting premises the But notion there limits to the limits on tort that courts liability absent the analysis. They is from iron rule may impose majority’s impose of no of and potential liability despite strong neglected evidence plaintiff’s err.3 They unsupervised property.
B The rest their decision on the of majority principle unforeseeability. understand, But their is difficult and I reasoning believe confuse they sure, the two different in which is ways foreseeability To be applied. “[t]he (Brewer is has Teano bedeviled v. problem complex, (1995) 40 many.” 1024, 348].) Cal.App.4th 1030 The now count Cal.Rptr.2d majority may [47 themselves them. among
The
contend that
majority
when used as a
foreseeability,
of
component
determining
defendant’s
is a
of
the
duty,
matter
law for
court to decide.
correct,
That
is
but it
rule
is a
of limited
All it means is
as
application.
matter,
if
general
of harm
is too remote a
type
alleged
of
consequence
(Ballard
of misconduct
type
v. Uribe
alleged,
defendant
not liable.
564, 573,
664,
41 Cal.3d
624].)
715
P.2d
It is
conduct,
much the
law,
same as
that the
as a matter of
saying
was not the
M.,
3Nothing
supra,
in Ann
contrary.
question
is to the
presented
The
in Ann
M. was narrow:
a shopping
duty, despite
knowledge
whether
center
prior
had
a lack of
crime,
security
incidents of
guards
protect
violent
a tenant’s employee—or as
Ann
language,
stated in M.’s own
whether it “had
to anticipate
reasonable cause
that criminal
conduct such as rape
shopping
premises
security
would occur in the
provided
center
unless it
(Id.
patrols
676.)
in the common
at p.
high
areas.”
We
concluded
because of the
cost of
guards
needed,
security
difficulty
knowing
many
might
high
degree
how
“a
required
in order to find that the
scope
landlord’s
of care includes
hiring
security guards.” (Id.
p.at
degree
foreseeability rarely,
“requisite
if
ever,
proven
can be
prior
the absence
similar incidents
violent crime on the
premises.” (Ibid.)
landowner’s
But
is the extent of M. As
Appeal
explained,
Ann
the Court of
herein
M. did
“Ann
incidents,
totally rewrite
only
Isaacs
the issue of
but
addressed that issue
(Italics
necessity
preventative
vis-a-vis
claimed
of a specific
security guards.”
measure:
deleted.) What M.
require
Huntington
Hospital, supra,
Ann
does
is what Isaacs v.
Memorial
stated,
required:
Cal.3d
“a
balancing
‘foreseeability’
of the criminal acts
‘burdensomeness,
vagueness,
(Ann
efficacy’
proposed
measures.”
666, 679;
Isaacs,
112, 125,
supra,
6 Cal.4th
supra,
engages
cf.
A
Cal.3d
court
in that
balancing
determining
test in
land possessor’s duty.
supra,
6 Cal.4th
678-679.)
But
is no
of such remoteness
of the harm.
there
question
cause
proximate
whether,
case,
of this
to decide
under the facts
here. It is
the jury
conduct.
of defendants’
consequence
harm to Sharon P. was
distinction,
need
but
look
they
not to
Uribe,
The majority appear
perceive
Teano,
II about crime comments unsupported I also with disagree majority’s safety. public cause, the majority proximate addressing question
Apparently measures plaintiff’s whether proposed announce that “it questionable of violent assault that would have been effective to the type protect instance, record, that the occurred contains no evidence here. the area at issue was even aimed parking camera toward Moreover, do not where attacked. surveillance cameras was plaintiff deter all not confine their activities to locations that crime and criminals do ante, untidy unkempt.” (Maj. opn.,
Of course surveillance cameras do not deter all crime. One to be question is the to which defendants’ resolved trial extent have on they entirely And of course criminals do not confine their conduct premises. dark, dank, struc- neglected, underground and unmonitored gloomy tures. Crime occur in unlikely in 1982 intruder awakened places: Queen II in Elizabeth her bedroom Palace. The Buckingham question, assaulted ultimately, whether environment which invited crime in her way damages. entitles These are questions fact for to resolve. jury
Casual theorizing straw-figure demolition pervade majority’s discussion. The that majority “surveillance cameras be inef- speculate fectual to crime unless there protect against are who are available employees monitor video transmissions and when continuously respond effectively ante, suspicious or criminal behavior is at (Maj. observed.” opn., also, They with notable lack of efficacy good persuasiveness, question (Id. trial, 1196-1197.) But at a lighting. there might testimony That trial will not occur questions. now. One item of the is commentary social almost incor- majority’s certainly rect. their They decision excuse defendants in justify part by announcing ” ante, that “violent crime in ‘endemic today’s society.’ (Maj. opn., [is] 1194.) The that crime strange is ever rates a new implication higher justify rule. But legal data belie observation: crime empirical violent majority’s has declined to the levels of decades “National Crime Victimization ago. Survey [1998] violent crime rates ... lowest recorded since “the survey’s 1973.”4 And homicide rate was inception 1991 peak than lower crest and close with the Great during even trends par Statistics, Justice, 4Bureau of Department Justice United States Criminal Victimization 25, 1999) (as (Aug. page <http://www.ojp.usdoj.gov/bjs/abstract/cv98.htm> Sep 21, 1999). tember Moreover, 1991, rate has to levels regressed since murder Depression. not seen since the 1960s.”5
Moreover, If crime is crime majority’s prevalance analysis illogical. area, endemic in then the it is heightened, a particular protect defendants’ not diminished. The relevant this whether regard question was in an to certain crimes so as to sufficiently prone located area so, fact, make a attack on an foreseeable. If regardless invitee potential statistics, call for more to their would defendants protection “ invitees, not To . includes whatever is ‘foreseeability likely less. . . repeat, that a of modem life enough setting reasonably thoughtful [person] ” take of it in conduct.’ (Bigbee account guiding practical Pacific Co., & Tel. Tel. Cal.3d
Ill The Court of declared that this case presented question Appeal can be character- whether “commercial underground parking garages fairly ized as “the criminal acts of third dangerous” inherently attracting It be so characterized. they held could persons.” the trial court’s the Court reversing grant summary judgment, and, narrow it led found two factors first was significant. though Appeal conclusion, fact that court Sharon P. legal alleged specific. defendants had it was located in a neglected high-crime property area. into account the conditions at this presented par- “[T]aking physical history including ticular location as well its recent activity, *25 (robberies) seven felonies bank during least serious the adjacent premises hold, as a matter of two-year the assault we preceding plaintiff, period law, that a of that of the defend- degree foreseeability existed high patrons third ants’ commercial become victims of might person parking garage robberies, assaults, or some other form criminal such shootings, rapes, that, such We further hold all of necessarily given aggression. physical circumstances, is not evidence of similar criminal misconduct specific prior in reasonable order for defendants have a duty required circumstances, which, on the total might measures depending preventative omitted.) (Italics security guards.” include might it was analysis legal: The second factor Court of Appeal’s purely nature, their that as matter of law underground parking garages, by held 3, Statistics, (1998) of Criminal Justice Statistics Section 5Bureau Justice Sourcebook <http://www.albany.edu/sourcebook/1995/ and of Known Offenses Nature Distribution 21, 1999). (as September sec3intro.html> “ structure, invite crime. its of a defendant very may operation parking ‘[I]n be and said to have created “an for criminal especial temptation opportunity misconduct,” thus In attack. increasing foreseeability [Citation.] observation, this note the nature of a making we unique parking complex, structures, which acts of invites theft and vandalism. In numerous stereos, contents, (car themselves) car the cars are tempting targets displayed thief; walls, for the and the absence of the cars’ high ceilings low owners allow the in time to thief vandal to work him privacy give complete his task. Such circumstances increase likelihood of criminal misconduct. addition, deserted, structures, In nature these labyrinthine especially them night, makes for robbers to lie in likely wait. places rapists Robbery, violent who rape, consequences anyone these interrupts ” crimes, also thus be foreseeable.’ The was Court Appeal quoting 622, 600], v. Ticor Cal.App.3d Gomez invoking language quoted we also Isaacs Huntington approvingly Memorial 38 Cal.3d Hospital, supra, 128. were, view,
These conclusions my The erroneous. first conclusion was incorrect for the same reason that the err: the Court majority Appeal decided as a matter law a for the foreseeability question jury, conclusion, but decided it to the The second contrary. that subsurface parking also garages dangerous, was erroneous. fact some inherently such parking garages, because location re they provide security their are not But the quires, dangerous. Court of cannot be faulted for Appeal having addressed issue. It was inevitable that court would do reviewing so after we an aside in Ann 6 Cal.4th some queried “whether that, of commercial are so types even in the property dangerous inherently incidents, absence of will fall within providing security guards (Id. landowner’s of care.” duty suggested We were parking garages inherently that Ann M. had dangerous, observing “offered no evidence to show like a garage or all-night ‘ store, convenience a retail store located in a center creates “an shopping ’ ” especial (Ibid.) temptation conduct.” opportunity noted, Court of “Although court Appeal phrased question [Ann M.] terms of only the basic issue it left provide security guards, commercial unresolved is whether certain types so premises may as to inherently reasonable that crimes dangerous present *26 customers or will be tenants committed third if the persons landowner does not take reasonable measures preventative may which include security guards.”
But the have to the of the Court majority responded questionable aspects with their I with Appeal analysis own errors. majority’s disagree both of the reasoning on this court and that on the Court of majority Appeal.
IV but I would affirm the of the Court of on the judgment grounds Appeal, stated herein.