Are Property Owners Responsible for Sexual Crimes in California ?
In Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, the court declined to impose a landowners' duty to provide additional security in a case in which the plaintiff was sexually assaulted by an unknown assailant, in a commercial building's underground parking garage, below a bank which had been robbed repeatedly.
The problem in that case was that there was insufficient evidence in that record of the foreseeability of a violent attack, to justify using a heightened foreseeability test, because:
(1) sexual assault is not a reasonably foreseeable risk associated with the previous bank robberies;
(2) there was no other evidence of crimes against property or persons on the premises;
(3) underground parking garages are not inherently dangerous so as to require security guards;
(4) the defendants were not required to undertake other proposed measures (improving lighting and cleanliness in the garage, requiring other employee walk-throughs, or providing operative security cameras), because it was not shown those measures were actually less burdensome than hiring security guards, nor that they would have protected against the sexual assault. (Id. at pp. 1196-1197.)
The Court acknowledged that even where there is no evidence that prior similar crimes took place on the premises owned by the defendants, foreseeability can nevertheless be found where there were other circumstances to provide a heightened degree of foreseeability (including similar violent crimes occurring at a neighboring similar business establishment). (Id. at pp. 1196-1197; Delgado, supra, 36 Cal.4th at p. 240, fn. 19.)
Accordingly, "perfect identity of prior crimes to the attack on plaintiff is not necessary." (Tan v. Arnel Management Co. (2009) 170 Cal.App.4th 1087, 1101 (Tan).)
"The court's task in analyzing the foreseeability aspect of duty 'is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.' " (Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1219 (dis. opn. of Epstein, J.).)
In Castaneda v. Olsher (2007) 41 Cal.4th 1205, the Supreme Court drew from previous case law, such as Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666 and Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, to outline this three-part analytical test for legal duty questions:
"'First, the court must determine the specific measures the plaintiff asserts the defendant should have taken to prevent the harm. This frames the issue for the court's determination by defining the scope of the duty under consideration. Second, the court must analyze how financially and socially burdensome these proposed measures would be to a landlord, which measures could range from minimally burdensome to significantly burdensome under the facts of the case. Third, the court must identify the nature of the third party conduct that the plaintiff claims could have been prevented had the landlord taken the proposed measures, and assess how foreseeable (on a continuum from a mere possibility to a reasonable probability) it was that this conduct would occur. Once the burden and foreseeability have been independently assessed, they can be compared in determining the scope of the duty the court imposes on a given defendant. The more certain the likelihood of harm, the higher the burden a court will impose on a landlord to prevent it; the less foreseeable the harm, the lower the burden a court will place on the landlord.'" (Castaneda, supra, at p. 1214, citing Vasquez, supra, 118 Cal.App.4th 269, 285.)
In applying standards for imposing a duty on a landowner, we seek to emphasize that the unusual situation presented in Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, is not supported by the record before us, for purposes of finding a duty inherent in the special relationship between a landowner and users of the premises, based on specific knowledge of "unfolding circumstances." (Id. at pp. 245-247.)
That unusual situation was deemed to support a finding of duty, in that the agents of the proprietor had knowledge sufficient to support imposition of a duty to provide protective measures, for the following reasons. In Delgado, the special relationship of a tavern proprietor and its security agents, to a patron, was present and resulted in a finding of a duty to respond to certain "unfolding events" that obviously posed a threat to the patron. The Supreme Court analyzed those undisputed facts as justifying the existence of the proprietor's duty to take "reasonable, relatively simple and minimally burdensome steps to attempt to avert that danger." (Id. at pp. 249-250.)
There, the high court did not reach the issues of breach of duty or causation of harm, instead sending them back to the lower courts for analysis of certain remaining foreseeability considerations. (Id. at p. 250.)