Daily Development for Thursday, December 23, 1999

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu

LANDLORD LIABILITY; CRIMINAL ATTACKS; "INHERENTLY DANGEROUS PREMISES:" California Supreme Court closes loophole for plaintiffs in Ann M. , commercial underground parking garage is not so "inherently dangerous" that landowner has responsibility to care for the safety of users against criminal attacks.

Sharon P. v. Arman, 1999 WL 1189580, No. S063612 (Cal. 12/16/99)

Hard on the heels of the court of appeals decision in Nicole M. v. Sears, Roebuck & Co., (reported last week on DIRT) where the court of appeals tried to interpret Ann M.'s language regarding parking garages, we have a California Supreme Court decision targeting precisely the question left unanswered in Ann M., whether an underground public parking facility, is so "inherently dangerous" that owners of the premises have a duty to foresee criminal attacks on patrons and take measures (notably the provision of security guards) to protect them from such attacks.

The plaintiff in the instant case sued when she was attacked in the garage while going to her car. She argued that the landlord had a duty to protect against such attacks because of the fact that these facilities were "inherently dangerous."

The court distinguished the 1983 California appeals court decision in Gomez v. Ticor, 193 Cal.Rptr. 600, which had stressed the special character of undergound parking garages and appeared to conclude that they indeed imposed special duties on landlords, even without evidence of prior criminal acts in the garage. The court here pointed out that, in the end, Gomez had also relied upon the fact that there had been a number of criminal attacks in the building above the garage in question. This being said, it is probable that the Court in the instant case effectively overrules Gomez' sweeping language on the landowner's duty in parking garages.

The plaintiff also argued that some "minimal level of security," short of security guards, should have been provided here. The court acknowledged that Ann M. had suggested that there was a balance to be reached the burden on the landowner of providing security measures is to be balanced against the degree of risk of injury from criminal attacks. The plaintiff stated that some level of security less than full blown security guard service might have prevented her attack.

The court first evaluates and discards item by item the various "lesser levels" of security proposed concluding either that they are no less burdensome on the landlord or are not likely top provide much protection. But then it gets to the bottom line a line drawn much more firmly than that in Ann M.: if there is no evidence of prior criminal attacks, then it is a very rare circumstance in which any special measures will be required.

Plaintiff also argued that the premises were poorly lit, but the court noted that an expert for the defense testified that the garage was small, with no "dark corners" and could be viewed in its entirety from most anywhere inside. But the court's willingness to consider this issue separately signalled some acknowledgement that a landlord has a duty to provide adequate lighting to protect tenant safety, even without evidence of prior criminal attacks.

There were concurring and dissenting opinions. The concurrence argued that the court here had not tilted enough against liability for the landowner, while the dissent argued the simple logic that of course there was danger and that the issue should be one for the jury.

Comment 1: There can be absolutely no doubt that this is a social policy decision refusing to impose the cost of criminal attacks on commercial landlords. The court seems very much aware that to let these issues of foreseeability go to the jury is to find, in effect, for the plaintiff every time, since the gruesome details of the attacks themselves puts juries in a antidefendant frame of mind. Defendants rarely will take a chance on a huge jury verdict, and will settle if at all possible once it is dermined that the case is jurybound.

Comment 2: Is there a "right" or "wrong" position outside of the social policy dimension? It is of course accurate to say, as the dissent argues, that criminal attacks do happen and that they are more likely to happen in remote, insulated places. But is the construction of a remote, insulated place per se negligence? Have crime victims no responsibility to make their own judgment, based upon the circumstances of the moment, whether a location presents a special danger?

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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