Opinion
Review Granted Oct. 22, 1997.
Previously published at 56 Cal.App.4th 266
Peter B. O'Brien and Kelly L. Duenckel, Los Angeles, for Plaintiff and Appellant.
Early, Maslach, Price & Baukol, Larry E. Robinson, Los Angeles, Greines, Martin, Stein & Richland, Marc J. Poster, Beverly Hills, Robert A. Olson, Acker, Kowalick & Whipple, Stephen Acker and A. Gina Hogtanian, Los Angeles, for Defendants and Respondents.
CROSKEY, Acting Presiding Justice.
In this case, we deal with an issue left unresolved by the Supreme Court in Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 25 Cal.Rptr.2d 137, 863 P.2d 207, to wit, the extent to which commercial parking garages can be fairly characterized as inherently dangerous, and the impact which that circumstance has on the duty of the owners and operators thereof to take reasonable precautions to protect users from the criminal acts of third persons.
Plaintiff Sharon P. appeals from a summary judgment granted to defendants Arman, Ltd. and APCOA, Inc. ("Arman," "Apcoa," collectively "defendants"). Plaintiff filed this suit after she was attacked and sexually assaulted at gunpoint in a subterranean parking garage in the commercial office building where she worked. The building and garage are owned by Arman and the garage is managed by Apcoa. The summary judgment was based on the trial court's determination that defendants owed no duty of care to plaintiff. After reviewing plaintiff's evidence of various crimes in the surrounding neighborhood, including a number of robberies in the bank located above the parking garage, the court determined that such evidence was "not sufficient to raise a triable issue of fact in that it does not establish the degree of foreseeability necessary to impose upon the defendants a duty to the plaintiff." For the reasons set forth in this opinion, the trial court's conclusion reflected an incorrect analysis and application of relevant case law.
We conclude defendants did owe a duty of care to plaintiff to provide reasonable security measures in the commercial parking garage which was owned and operated by them and in which plaintiff was attacked. Whether the manner in which they operated and maintained that garage constituted a breach of that duty and, if so, whether such breach was a legal cause of the damages suffered by plaintiff, are issues which must be addressed upon remand. We therefore reverse the judgment and remand for further proceedings consistent with the views expressed herein.
PROCEDURAL AND FACTUAL BACKGROUND
l. Procedural History
According to plaintiff's complaint, she rented an assigned parking space in the subterranean parking garage which is at issue in this case. The parking area is reserved for tenants of the Coast Savings building at 1180 South Beverly Drive, in Los Angeles. The complaint alleges plaintiff conducted accounting business activities in a suite in the office/bank building. The complaint further alleges that on Thursday, April 8, 1993, at around 11:00 a.m., the day and time she was attacked, defendants failed to take appropriate security measures for this parking garage, and their inaction resulted in the attack upon her and in her consequent pain, suffering and extreme emotional distress, as well as past, present and future medical expenses and loss of income.
This suit was filed on March 11, 1994. Apcoa filed its motion for summary judgment on December 21, 1994, contending that neither it, nor Arman, owed a duty to make the garage more secure because the attack on plaintiff was not reasonably foreseeable. Apcoa also contended it had no liability to plaintiff as it owed no duty to her. It justified 2. Evidence Presented to the Trial Court
a. Plaintiff's Evidence
In her declaration filed in opposition to defendants' summary judgment motions, plaintiff stated she had entered the underground parking garage on the day in question at 11:00 a.m., and parked in her assigned space. She exited her vehicle, leaned back into the car to remove items from the back seat, and when she turned around, a man in a ski mask was pointing a gun at her. She tried to talk her way out of harm, but was forced back into the car and sexually assaulted. Her attacker was not caught. Plaintiff stated that for several months preceding her attack, the overall condition of the garage had deteriorated. It was not unusual for several lights to be out, and this would cause darkened areas in the garage. There were lights out in the immediate area of her parking space. On the day of her attack, the garage "had several darkened areas that provided vantage points from which someone lying in wait until after the morning influx of tenants could observe a lone woman arriving in her car as easy prey." Several darkened storage areas would provide a place to hide. She smelled urine at various times during her walks to and from the garage. The garage was not kept clean. Plaintiff never saw defendants' employees monitoring or inspecting the garage. After the attack on her, she learned the security cameras in the garage had not been working for months.
Several declarations were filed in support of plaintiff's opposition to the motions for summary judgment. There is no indication in the record that defendant Apcoa filed evidentiary objections to these declarations. Although defendant Arman did file such objections, the record contains no ruling on those objections. The result is that we deem waived any objections which defendants may have had to the declarations. (Code Civ. Proc., § 437c, subds. (b), (c) & (d); Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 670, 25 Cal.Rptr.2d 137, 863 P.2d 207, fn. l.) Indeed, the order granting the motions states that the trial court considered all the evidence set forth in the papers submitted by the parties, and the inferences reasonably deducible from that evidence.
The majority specifically excludes from this definition single-level, uncovered surface parking lots and private multi-residential parking garages which have restricted access.
Plaintiff does not indicate when these lights near her parking space were out [i.e., whether they were out before, after, and/or on the day of her attack], but she says generally that the parking garage was not well lighted.
A declaration from plaintiff's attorney, Kelly Duenckel, states that on October 25, 1994 (18 months after the attack on plaintiff), Ms. Duenckel examined the parking garage in question and found that at least 12 light bulbs were burned out and four lights were out in the row of parking spaces where plaintiff used to park. She observed that the storage spaces in the garage were dark and would provide an ideal hiding place, and at least one smelled of urine and had a cot by it. Both Duenckel and plaintiff stated in their declarations that these storage spaces were cordoned off with chain link fence; however, Duenckel indicated it appeared that "anyone could have access to these storage spaces." Duenckel also observed that the video cameras above the elevator doors were not functioning. She stated the garage bore no indication that it was regularly maintained.
Retired Pasadena police chief, Robert McGowan, was deposed. McGowan testified that underground parking lots are potential places for criminals to lie in wait. His department worked with a mall and a department store in Pasadena that have underground parking facilities. The purpose was to warn of the dangers of such facilities. He stated that covered parking structures, underground or overground, present a more In his deposition testimony, Zacaria Simantob (whom plaintiff's papers describe as being "from [defendant] Arman"), stated that the subject garage had a camera but it did not function because Arman was not legally required to have a functioning camera. In an answer to an interrogatory propounded by plaintiff, Arman asserted that pursuant to the contract between Apcoa and Arman, Apcoa is responsible for injuries occurring in the parking garage and Arman is not responsible.
Mr. Simantob is a general partner of Arman.
Other evidence was presented by plaintiff. Coast Savings' records show that the branch of that institution where the parking garage in question is located had nine robberies, including an armed robbery, between February 1991 and February 1994, with two occurring in 1991, four in 1992, two in 1993 (January and August), and one in January 1994. An injury occurred in one of the robberies.
b. Defendant Apcoa's Evidence
Apcoa presented a declaration from the aforementioned retired police chief, Robert McGowan. He stated he is a self-employed security consultant, working in that capacity for nine years. He has investigated or overseen investigations for many parking lot assaults and has been retained as an expert witness on 29 matters involving parking lots and structures. On September 7, 1994 (17 months after the assault on plaintiff), he inspected the subject parking facility and found its size to be around 200 feet by 225 feet. It has 79 parking spaces. He found the lighting "sufficient to clearly view from one side of the garage to the other in any direction." Although there are support columns in the garage, they "do not seriously obstruct the overall view of the garage from any point within the garage." There is an electronically operated gate for vehicles entering the garage, two passenger elevators to the building lobby, and a stairwell to the lobby.
McGowan offered several opinions. He stated that because there are at least three entrances to the garage through which an assailant can enter, and because people come and go during the business day, "there is no effective way to prevent a person from entering the garage or to confirm each person's identity and reason for entering the garage." Closing the garage door is not effective because a person can wait for a car to pass through the gate and then walk into the garage while the gate is closing, or enter in a vehicle himself if he is a tenant. There is no way to completely guard against the type of assault experienced by plaintiff. Because of the small size of the garage, the "minimal or no criminal activity," the relatively unobstructed view throughout the garage, and the presence of drivers coming and going, posting a security guard would be an unreasonable burden on defendants. The bank robberies at Coast Savings are "not an indication that there is any greater likelihood of a sexual assault crime occurring in the subterranean garage" because the bank premises are located "on the other end of the structure from the entrance to the parking garage and the behavior of a bank robber is to immediately escape the area where his crime is committed, not to lie and wait for a victim."
Regarding the matter of whether Apcoa was responsible for security provisions in the underground parking area, Arman's general partner Zacaria Simantob stated in his deposition that he did not think Apcoa and Arman have an agreement for Apcoa to provide security services for the underground parking garage. A copy of the contract between Arman and Apcoa was presented to the trial court. The contract provides for Apcoa to manage the underground garage as well as two surface lots, one located at the building premises and one located nearby. Apcoa is to act as the exclusive manager of the three parking facilities, as an independent contractor, and "manage, supervise, and operate" them for Arman. Regarding the underground garage, Apcoa is to "supervise the proper and efficient parking" therein. Apcoa is required to supply and pay a full time Zacaria Simantob's declaration states Arman purchased the subject building in 1982 and he, together with other general partners, is responsible for managing it. He knows of no attack on anyone in the parking garage from the day the partnership purchased the building until the assault on plaintiff. He was informed of the bank robberies but has never known any of the robberies to involve criminal activity in the garage. He did not state when he was informed of the robberies.
However, as discussed below, a landowner has a duty to "exercise reasonable care to discover that criminal acts are being or are likely to be committed on its land." (Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at pp. 679-680, 25 Cal.Rptr.2d 137, 863 P.2d 207 (hereinafter "Ann M.").)
ISSUE ON APPEAL
The critical issue in this case is whether defendants owed a duty of care to plaintiff with respect to the security of the commercial parking garage owned and operated by them.
DISCUSSION
1. Standard of Review
(1)To prove that she has a valid cause of action against defendants for negligence, plaintiff must show (1) defendants owed her a duty of care, (2) defendants breached that duty, and (3) she suffered injuries which were proximately caused by defendants' breach of duty. (Ann M., supra, 6 Cal.4th at p. 673, 25 Cal.Rptr.2d 137, 863 P.2d 207.) (2)In an appeal from a summary judgment, the order granting the motion for summary judgment must be reviewed de novo. (Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 474, 261 Cal.Rptr. 735.) A motion for summary judgment is properly granted where "all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) A defendant meets "his or her 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, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action." (Id., subd. (o).) If the defendant meets this 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 or a defense thereto." (Ibid.) (3) The responsibility of the trial court is to discover whether the litigants possess evidence which would require the weighing procedure of a trial. (Miller v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463, 1478, 232 Cal.Rptr. 668.) The affidavits of the moving party are strictly construed and those of the opposing party liberally construed, and any doubt as to whether the motion should be granted results in the denial of the motion. (Michael J. v. Los Angeles County Dept. of Adoptions (1988) 201 Cal.App.3d 859, 866, 247 Cal.Rptr. 504.)
As we have already noted, the resolution of this appeal primarily involves the question whether defendants owed a duty of care to the plaintiff, given the factual circumstances shown by the evidence when that evidence is examined under the foregoing standards.
2. The Concepts of "Duty" and "Foreseeability" in Negligence Law
Civil Code section 1714 states in relevant part: "Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management
The rules just stated have general application to negligence cases. The existence of a duty of care and its scope, i.e., its boundaries, are questions of law to be determined by the trial court on a case-by-case basis. (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 124, 211 Cal.Rptr. 356, 695 P.2d 653, modified in part on another point in Ann M., supra, 6 Cal.4th at p. 679, 25 Cal.Rptr.2d 137, 863 P.2d 207, and disapproved on another point in Ann M. 6 Cal.4th at p. 678, 25 Cal.Rptr.2d 137, 863 P.2d 207.) When examined by an appellate court, duty and scope are reviewed de novo. (Ann M., supra, 6 Cal.4th at p. 674, 25 Cal.Rptr.2d 137, 863 P.2d 207.) Duty " 'is a shorthand statement of a conclusion, rather than an aid to analysis in itself.... But it should be recognized that "duty" is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.' (Prosser, Law of Torts, [3d ed. 1964] at pp. 332-333.)" (Dillon v. Legg (1968) 68 Cal.2d 728, 734, 69 Cal.Rptr. 72, 441 P.2d 912.)
Landowners are required to "maintain land in their possession and control in a reasonably safe condition." (Ann M., supra, 6 Cal.4th at p. 674, 25 Cal.Rptr.2d 137, 863 P.2d 207 [citing Civ.Code, § 1714 and Rowland v. Christian ].) "In the case of a landlord, this general duty of maintenance, which is owed to tenants and patrons, has been held to include the duty to take reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures. [Citations.]." (Ibid.; italics added)
The Ann. M. court found that the duty to protect from wrongful acts of third persons also benefits employees of commercial tenants. (Ann M., supra, 6 Cal.4th at p. 675, 25 Cal.Rptr.2d 137, 863 P.2d 207.)
The several Rowland factors are considered "in determining the existence and scope of a [landowner's] duty in a particular We have previously stated that the existence and scope of a defendant's duty of care are questions of law for the court to determine. Likewise, "Foreseeability, when analyzed to determine the existence or scope of a duty, is a question of law to be decided by the court. [Citations.]" (Ann M., supra, 6 Cal.4th at p. 678, 25 Cal.Rptr.2d 137, 863 P.2d 207.) Thus, it also is examined de novo by the reviewing court. (8) In Isaacs v. Huntington Memorial Hospital, supra, 38 Cal.3d at p. l24, 211 Cal.Rptr. 356, 695 P.2d 653, the court relied on the Restatement Second of Torts, section 344, comment (f), pages 225-226, to detail the "foreseeability" circumstances under which the duty of a landowner to protect others from the wrongful acts of a third party arises: " 'Since the [owner of land] is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.' " (Italics omitted.)
The jury also considers the matter of foreseeability, however in "two more focused, fact-specific settings. First, the jury may consider the likelihood or foreseeability of injury in determining whether, in fact, the particular defendant's conduct was negligent in the first place. Second, foreseeability may be relevant to the jury's determination of whether the defendant's negligence was a proximate or legal cause of the plaintiff's injury." (Ballard v. Uribe, supra, 4l Cal.3d at p. 573, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624.)
Legal foreseeability does not mean what one court described as "objective foreseeability," i.e., "the logical opposite only of impossibility." (Sturgeon v. Curnutt (1994) 29 Cal.App.4th 30l, 306, 34 Cal.Rptr.2d 498.) Using objective foreseeability, "[o]n a clear day you can foresee forever. [Citation.]" (Id. at p. 307, 34 Cal.Rptr.2d 498.) Thus, courts temper objective foreseeability with subjective reasonableness and apply this "reasonably foreseeable" standard in calculating whether a defendant owed a plaintiff a duty of care, thereby "bring[ing] imposition of duty in line with practical conduct." (Id. at pp. 306-307, 34 Cal.Rptr.2d 498.) The court determines whether "the degree of foreseeability is high enough to charge the defendant with the duty to act on it." (Id. at p. 307, 34 Cal.Rptr.2d 498.) However, " 'foreseeability is not to be measured by what is more probable than not, but includes whatever is likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it in guiding practical conduct.' (2 Harper & James, Law of Torts [1956] § 18.2, at p. 1020.)" (Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 57, 192 Cal.Rptr. 857, 665 P.2d 947.)
3. The Ann M. Case
Defendants rely heavily on Ann M. to support the judgment, and the record shows the trial court considered that case in making
In Ann M., the court addressed the narrow question of whether the owner of a strip mall shopping center, in fulfilling its duty to maintain the common areas of its premises in a reasonably safe condition, must provide security guards for those areas. The court determined that on the facts of the case before it, the scope of duty owed by the defendant to the plaintiff did not include providing security guards for the common areas of the shopping center. The court based its conclusion on the absence of prior incidents similar to the one which injured the plaintiff. Plaintiff had been raped while working in a store in the shopping center. The store, a photo processing service, was located in a secluded area of the shopping center. The shopping center generally contained about 25 commercial tenants. The lease between the photo processing service and the defendant owner of the strip mall gave the defendant the right to police the common areas of the mall, but did not impose a duty on the defendant to do so. The plaintiff was raped, and the store robbed, at 8 a.m. There was evidence that prior to the assault, there had been incidents of bank robberies, robberies of shoppers, violent purse snatchings, break-ins and assaults by a man who would come up behind women shoppers and pull down their pants. The defendant responded with evidence that its records contained no references to violent criminal acts in the shopping center prior to the rape of the plaintiff and that it was defendant's standard practice to record instances of violent crimes. There was also evidence that prior to the rape, employees and tenants in the shopping center were concerned about (10) Noting that landlords have a duty to take reasonable steps to secure the common areas of their property against foreseeable criminal acts of third parties (Ann M., supra, 6 Cal.4th at p. 674, 25 Cal.Rptr.2d 137, 863 P.2d 207), the court stated that the heart of the case before it was whether the defendant "had reasonable cause to anticipate that criminal conduct such as rape would occur in the shopping center premises unless it provided security patrols in the common areas." (Id., at p. 676, 25 Cal.Rptr.2d 137, 863 P.2d 207; italics added.) In revisiting Isaacs, the court set down two general rules regarding a landowner's duty to provide security guards. First, because of the expense, the social impact (i.e., the monetary effect on small businesses in high crime areas, where residents are often not able to bear the rise in the cost of goods and services necessary to pay for security patrols), and the vagueness of how many patrols are necessary to curb crime, "a high degree of foreseeability is required in order to find that the scope of a landlord's duty of care includes the hiring of security guards." (Id. at p. 679, 25 Cal.Rptr.2d 137, 863 P.2d 207, emphasis added.) Second, this "requisite degree of foreseeability rarely, if ever, can be proven in the absence of prior similar incidents of violent crime on the landowner's premises." (Ibid., fn. omitted; italics added.) However, the court left open the "possib[ility] that some other circumstances such as immediate proximity to a substantially similar business establishment that has experienced violent crime on its premises could provide the requisite degree of foreseeability." (Ibid., fn. 7.)
Indeed, review was granted in Ann M. for the expressed and limited purpose of determining "whether the scope of the duty owed by the owner of a shopping center to maintain common areas within its possession and control in a reasonably safe condition includes providing security guards in those areas." (Ann M., supra, 6 Cal.4th at p. 670, 25 Cal.Rptr.2d 137, 863 P.2d 207; italics added.)
The Ann M. court found that the evidence presented by the parties in that case precluded a finding that violent criminal assaults were sufficiently foreseeable to impose a duty on the landlord to provide security guards in the common areas. First, even assuming the landlord knew of the previous criminal activities at the shopping center, they were not similar in nature to the crime plaintiff suffered--rape. Second, none of the plaintiff's other evidence (the presence of transients and the statistical crime rate in the surrounding area) was "sufficiently compelling to establish the high degree of foreseeability necessary to impose upon [the landlord] a duty to provide security guards in the common areas." (Ann M., supra, 6 Cal.4th at p. 680, 25 Cal.Rptr.2d 137, 863 P.2d 207.)
Thus, Ann M. is a case which considers when the scope of a landlord's duty of care to keep its property in a reasonably safe condition will include the duty to provide security guards to protect persons against crime perpetrated by third parties. The Ann M. court (1) set a specific level of foreseeability (i.e., a high degree of foreseeability) and (2) prescribed how that level of foreseeability must be shown (by prior similar incidents or something equally compelling). However, Ann M. did not totally rewrite Isaacs on the issue of prior similar incidents, but only addressed that issue vis-a-vis the claimed necessity of a specific preventative measure: security guards. (Ann M., supra, 6 Cal.4th at pp. 670, 673, 674, 676, 679, 680, 25 Cal.Rptr.2d 137, 863 P.2d 207.) Ann M. thus does not preclude the application of Isaacs 's directive to analyze foreseeability using the totality of circumstances in a case where those circumstances include, as they do here, such factors as an inherently dangerous premises and a history of prior (although not similar) criminal acts on nearby premises. 4. The Issue Left Unresolved By Ann M.
Our conclusion that a lack of prior similar incidents is not dispositive of this appeal is supported not only by Ann M.'s narrow focus on the existence of a duty to provide security guards, but also upon the fact that the court expressly left open the question of "whether some types of commercial property are so inherently dangerous that, even in the absence of prior similar incidents, providing security guards will fall within the scope of a landowner's duty of care." (Id. at p. 680, fn. 8, 25 Cal.Rptr.2d 137, 863 P.2d 207.) Although the court phrased the question only in terms of a duty to provide security guards, the basic issue it left unresolved is whether certain types of commercial premises may be so inherently dangerous as to present a reasonable foreseeability that crimes against customers or tenants will be committed by third persons if the landowner does not take reasonable preventative measures which may or may not include security guards. The court specifically mentioned two particular types of such commercial property--all-night convenience stores and parking garages. The court stated that the plaintiff had "offered no evidence to show that, like a parking garage or an all-night convenience store, a retail store located in a shopping center creates ' "an especial temptation and opportunity for criminal conduct." ' " (Ibid., italics added.)
This express reservation by the Ann M. court is significant but has been ignored by our dissenting colleague.
The record in this case reflects a recognition that parking structures are tempting to criminals. Apcoa's own expert testified that parking garages are potential places for criminals to lie in wait, and they present more difficult security problems than surface parking lots.
In the instant case, we deal with a violent crime committed in just such a commercial location, and so are squarely presented with the issue left open by Ann M. We address that issue by looking at the total circumstances presented by this case, with our primary focus upon the nature, character and condition of the particular premises (i.e., a commercial parking garage ) as well as the history of criminal activity in or about such premises. If we find, given all of the circumstances, that the assault on plaintiff was reasonably foreseeable then we must look to the remaining Rowland factors to determine if the defendants had any duty of care to plaintiff to protect her from the criminal acts of third persons, whether by use of security guards or some lesser means of deterrence.
In our analysis of this issue, we do not include single-level, uncovered surface parking lots because their physical characteristics do not present the level of danger, discussed infra, which is inherent in a covered parking garage.
5. The Inherently Dangerous Nature of Commercial Parking Structures and the Issue of Foreseeability of Harm
Ann M. was not the first case to recognize that commercial parking structures may be dangerous places when it comes to criminal conduct. Gomez v. Ticor, supra, 145 Cal.App.3d 622, 193 Cal.Rptr. 600 (hereinafter "Gomez ") is a wrongful death case brought by relatives of a person shot and killed one night when he entered the parking garage of the defendant's office building and came upon a robbery in progress. The Gomez court addressed "the foreseeability of armed robbery in an office building's commercial parking structure and the existence of minimal precautions to protect the patrons thereof." (Id. at p. 626, 193 Cal.Rptr. 600.) In
In Gomez, the plaintiffs introduced evidence of "the general unsafe character of the neighborhood" and of fourteen thefts and four other nonviolent crimes that occurred in the building within three years prior to the murder. Additionally, they presented evidence that the security system which was supposed to monitor the parking garage was not functioning on the night of the attack (the intercom that connected the parking attendant with the security booth in the lobby of the building was "habitually turned off at the lobby console," the camera that monitored the entry ramp used by the assailants was not working, and the gate to the entry ramp was generally left open at night). (Gomez, supra, 145 Cal.App.3d at p. 626, 193 Cal.Rptr. 600.) The court did not find that the evidence regarding the general unsafe character of the neighborhood would "establish sufficient foreseeability to warrant the imposition of a duty." (Id. at p. 628, 193 Cal.Rptr. 600.) However, it found that based on the evidence of the many previous crimes on defendant's premises in the past three years, theft and vandalism "appear to have been foreseeable in the parking structure" and therefore it may also have been foreseeable that a patron of the parking structure would come upon such a crime and himself be subject to an act of violence. (Ibid.)
This descriptive language from Gomez captures the essence of the physical characteristics of the average commercial parking structure. Like the Gomez court, we find that the peculiar characteristics of commercial parking garages, to which the general public necessarily has full and easy access, increases the likelihood of many types of criminal activity and thus increases the foreseeability of crime in general. (Gomez, supra, 145 Cal.App.3d at p. 628, 193 Cal.Rptr. 600.) Given the opportunity these structures present for criminals to prey on persons utilizing them, the recent history of ever increasing numbers of criminal assaults occurring in such structures, the fact that due to their very nature and their location on private property they are not patrolled by the police, and taking into account the physical conditions presented at this particular location as well as its recent history of criminal activity, including at least seven serious felonies (robberies) at the adjacent bank premises during the two year period preceding the assault on plaintiff, we hold, as a matter of law, that a high degree of foreseeability existed that patrons of the defendants' commercial parking garage might become victims of third person criminal assaults, such as robberies, shootings, rapes, or some other form of physical aggression. We necessarily further hold that, given all of such circumstances, specific evidence of prior similar criminal misconduct is not required in order for the defendants to have a duty to provide reasonable preventative measures which, depending on the total circumstances, might or might not include security guards. 6. Analysis of The Other Rowland Factors for Determining Existence and Scope of Defendants' Duty of Care
We expressly exclude from this finding, multi-residential parking garages which have restricted access and may not necessarily present the problems associated with the public commercial garage. In addition, for the reasons noted in footnote 13, ante, we also exclude single-level, uncovered surface parking lots. That is not to say, as our dissenting colleague incorrectly assumes, that such parking lots or structures may not in a specific case present similar problems. We simply do not have any reason to consider them here. We have excluded them because we expressly limit our analysis and holding to public commercial parking structures.
See, e.g., Lee, Lots Of Trouble-Courts Begin To Award Damages To Victims Of Parking-Area Crime, Wall Street Journal (Apr. 23, 1997), p. A1, col. 6.
This obvious and undisputed characteristic of the commercial parking structure seriously undercuts the argument of our dissenting colleague to the effect that it is unfair to the owners and operators of commercial parking structures to impose upon them the crime prevention burden which, under ordinary circumstances, should be a public responsibility. One of the reasons that parking structures are considered to be inherently dangerous is that they are on private property and are not policed except to the extent that those parties making a profit from their operation can be persuaded to do so.
Having found foreseeability in this case, which is a primary Rowland factor in determining both duty and its scope, we next determine whether this foreseeability, when balanced with other Rowland factors, shows defendants had a duty to provide reasonable security measures to protect plaintiff. We address those Rowland factors which are most relevant when liability is sought to be imposed on owners and managers of commercial parking structures. Those factors are the availability and cost of insuring against the risk, the policy of preventing future harm, the moral blame in the defendant's conduct, and the burden to defendant and the community of imposing a duty to provide security measures and requiring liability for breach of the duty. Do these factors, when balanced with the high degree of foreseeability of crime in general which we have found with respect to defendants' commercial parking structure, cause us to conclude that defendants owed plaintiff a duty of care to undertake reasonable security measures in order to protect her from foreseeable third party criminal acts? We find they do.
A foreseeable injury does not necessarily compel the conclusion that a duty of care exists. (Sturgeon v. Curnutt, supra, 29 Cal.App.4th at p. 306, 34 Cal.Rptr.2d 498.)
The evidence in this case shows defendants have already provided between themselves for the purchase of liability insurance for bodily injury and damage to property. Liability insurance has presumably been purchased by Apcoa and its cost has presumably already been passed on to tenants utilizing the parking facilities for themselves and their customers and clients. Indeed, there is no indication that such insurance is not generally available to owners and managers of parking structures.
Next, there is a strong public policy which favors the prevention of future harm in defendants' commercial parking garage. While the Gomez court found in 1983 (the year that case was decided), that "[p]arking structures are relatively new fixtures in 'the setting of modern life,' " (Gomez, supra, 145 Cal.App.3d at p. 629, 193 Cal.Rptr. 600) this is not the case anymore. Absent sufficient and desirable mass transit, parking garages are, and will continue to be, as common as vehicles themselves. They are an entrenched part of our lives, whether in shopping malls, educational institutions, sports facilities, government complexes, or the work environment. The need for such facilities can hardly be avoided, especially given California's love affair with the automobile and its lack of effective mass transportation. Therefore, they should be made to be both functional and safe. However, as they are located on private property, they are not routinely, or even sporadically, patrolled by the police. It must be the responsibility of the owners and operators of commercial parking garages or structures to make them reasonably safe for use by tenants and visitors. Public policy dictates that persons who profit from owning or managing facilities, which by their very nature create "an especial temptation and opportunity for criminal conduct," should supply at least the minimal amount of security warranted under the particular circumstances of the case. Whether or not there is moral blame attached to defendants' conduct in the way they operated and managed the parking garage, the finding of a duty of care furthers public safety.
As for the economic consequences of such a duty of care, there is no evidence that the cost of providing sufficient protection cannot reasonably be passed on to the persons who utilize the parking garage. For example, there is no evidence that such tenants cannot bear the added expenses themselves or pass it along to their customers. The "cost" of parking should include its entire cost, including reasonable security measures. Further, it is more reasonable to have all persons utilizing a commercial parking structure pay for the economic cost of security, and thereby realize the benefit of that security, than it is to make an individual user bear the physical and emotional cost of a criminal act which Defendants argue that there was "no effective way" to keep out persons who might engage in criminal conduct and that any requirement for the posting of a security guard would impose "an unreasonable burden." With respect to the first point, it is not necessary to succeed in order to persevere. That the task of making the garage reasonably safe might well have been difficult of achievement, cannot justify doing nothing. As to the second point, there is nothing in the record, other than the conclusionary declaration of one of defendants' experts, to demonstrate that any "unreasonable burden" would necessarily be involved; as we have already noted, it is not at all clear that security guards would have been required. The record does demonstrate that defendants were operating a commercial parking garage which, by its very nature and actual condition, presented an unreasonable risk of harm to its patrons. It is this circumstance which results in the imposition of a duty of care.
According to the plaintiff's complaint, those persons are the tenants of the associated office building.
We have concluded that a criminal assault on plaintiff was reasonably foreseeable and, after consideration of the other relevant Rowland factors, we hold that defendants owed to plaintiff a duty of care to provide reasonable security.
7. Breach Of Duty And Causation
Whether the defendants have breached their duty to plaintiff by a failure to provide security guards or some lesser security measures will be a question of fact for the jury, unless the state of the evidence permits the trial court to resolve the issue as a matter of law. As the court noted in Cohen v. Southland Corp., imposing a duty to make an all-night convenience store "reasonably safe against criminal activity is not coincident with requiring the hiring of armed guards. Rather, a jury could determine the duty was more than adequately fulfilled by the less onerous, relatively inexpensive robbery and/or violence deterrence measures described in the Southland-commissioned study...." (157 Cal.App.3d at p. 142, 203 Cal.Rptr. 572.) Based upon evidence which will doubtless, and perhaps necessarily, include informed expert opinion, a jury can properly decide what security measures were reasonably required when it reviews the facts of the case and determines whether the plaintiff met her burden of proving the defendant's breach of duty and causation. CONCLUSION
Lesser security measures might include, for example, parking attendants who provide maintenance to the garage and check for loitering (thereby providing a "presence" in the garage); closed circuit monitoring utilizing cameras together with sufficient posted signs to let a would-be criminal know that his actions, including dismantling the cameras, will be detected (the monitoring might possibly be done at a panel at which more than one parking structure is monitored); gates and secured doors; strong lighting, and motion sensitive lights. The court in Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 503, 229 Cal.Rptr. 456, 723 P.2d 573 recognized that lighting can help deter criminal conduct. In Slapin v. Los Angeles International Airport (1976) 65 Cal.App.3d 484, 488, 135 Cal.Rptr. 296 the court stated: "That a mugger thrives in dark public places is a matter of common knowledge. [Citations.]." Slapin involved a personal injury suit stemming from an attack on the plaintiff in a parking lot which the plaintiff contended was made dangerous by insufficient lighting. In Lopez v. McDonald's (1987) 193 Cal.App.3d 495, 514, 238 Cal.Rptr. 436, the court recognized that security cameras are designed to deter crime "because of the potential of identification and capture." In Gomez, supra, 145 Cal.App.3d at pp. 632-633, 193 Cal.Rptr. 600, the court stated: "the peculiar attraction which a large commercial building's unattended parking structure poses for the criminal may necessitate some minimal human or mechanical means of protecting patrons.... Indeed, we are convinced that a monitored parking complex is an infinitely safer place than one which is vacant and unattended." Additionally, a parking, garage which is regularly maintained (cleaned, light bulbs replaced, etc.) gives the appearance that an attendant may appear at any time while one which is left unkempt and dark has just the opposite effect.
The jury will analyze the totality of circumstances of the case to determine breach and causation. These include factors such as the history of crime in the whole of the premises, including the parking garage; the nature of the parking structure itself (e.g., number, size, and layout of parking floors, and whether they are above or below ground); the predominant use made of the parking garage (whether used primarily for purposes where there is a continuous turnover of parking activity [such as at a shopping mall] or for longer-term parking [such as by persons going to their place of employment] ); the nature of the surrounding neighborhood; the effectiveness of the security measures present when the plaintiff was injured, or the lack of any security measures; and other relevant factors in the case.
The criminal assault on plaintiff was reasonably foreseeable and the defendants owed a duty of care to plaintiff to provide reasonable security in their commercial parking garage. Whether the defendants, in their management and operation of the garage, met their duty to plaintiff, and if not, whether the breach of that duty was a substantial factor in plaintiff's injuries are issues which will have to be addressed on remand.
Defendant Arman's duty of care exists because it owns the garage. As for defendant Apcoa, there was sufficient evidence of a contractual duty to act as exclusive manager of the parking structure and "manage, supervise, and operate" it, including supplying liability insurance.
DISPOSITION
The judgment is reversed and the cause is remanded for further proceedings consistent with the views expressed herein. Costs on appeal to plaintiff.
ALDRICH, J., concurs.
KITCHING, Associate Justice, concurring.
I respectfully dissent. I would affirm the trial court's ruling.
The majority has replaced the concept of duty based on foreseeability with an "inherently dangerous" condition theory. The majority finds that commercial parking structures, while never specifically defined, 1 are "inherently dangerous;" and, by their very nature, facilitate the commission of and increase the likelihood of crime. Even though an owner or operator of a commercial parking structure provides sufficient safety measures on a property with no history of prior criminal acts, the majority opinion automatically imposes a duty as a matter of law. This is contrary to established case law.
The issue of duty is a question of law for the court to decide (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674, 25 Cal.Rptr.2d 137, 863 P.2d 207), primarily on the basis of foreseeability. (Id. at p. 676, 25 Cal.Rptr.2d 137, 863 P.2d 207.) Landlords have a duty to reasonably secure common areas against foreseeable criminal acts of third parties. (Id. at p. 674, 25 Cal.Rptr.2d 137, 863 P.2d 207.) However, the majority has now held that it is foreseeable as a matter of law that criminal conduct will always occur in such parking structures.
Under the majority opinion, all commercial parking structure cases will go to the jury, which will then only be required to decide if the duty of care was breached and if that breach was the legal cause of the plaintiff's damage. The better rule is the one adopted by our Supreme Court in Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th 666, 25 Cal.Rptr.2d 137, 863 P.2d 207 which found there was no duty based on a lack of foreseeability. In that case, the issue was "whether [the landlord] had reasonable cause to anticipate that criminal conduct such as rape would occur in the shopping center premises unless it provided security patrols in the common areas." (Id. at p. 676, 25 Cal.Rptr.2d 137, 863 P.2d 207.) Since the cost of providing security guards was significant, the court held that the "requisite degree of foreseeability The majority opinion means that owners of these newly identified "inherently dangerous" properties or businesses now have a higher responsibility than the rest of society to prevent criminal behavior. I believe this is too harsh a rule and it will penalize landowners for the inability of society to control crime since, "[u]nfortunately, random, violent crime is endemic in today's society. It is difficult, if not impossible, to envision any locale open to the public where the occurrence of violent crime seems improbable." (Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 678, 25 Cal.Rptr.2d 137, 863 P.2d 207.) As the court stated in Nola M. v. University of Southern California (1993) 16 Cal.App.4th 421, 437-438, 20 Cal.Rptr.2d 97, "Police protection is, and in our view should remain, a governmental and not a private obligation. Landowners in high-crime areas ought not to be forced out of the area or out of business altogether by an imposition of liability to the victims of violent crimes which the police have been unable to prevent. [Citation]."
We know that "[a]n action in negligence requires a showing that the defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of injuries suffered by the plaintiff." (Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 673, 25 Cal.Rptr.2d 137, 863 P.2d 207.) We also know that the "existence of a duty is a question of law for the court" (id. at p. 674, 25 Cal.Rptr.2d 137, 863 P.2d 207), and that "foreseeability [of the risk] is a crucial factor in determining the existence of duty." (Id. at p. 676, 25 Cal.Rptr.2d 137, 863 P.2d 207.) It is also true that landowners must maintain their land in a reasonably safe condition and "[i]n the case of a landlord, this general duty of maintenance, which is owed to tenants and patrons, has been held to include the duty to take reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures." (Id. at p. 674, 25 Cal.Rptr.2d 137, 863 P.2d 207, emphasis added.) "[A] duty to take affirmative action to control the wrongful acts of a third party will be imposed only where such conduct can be reasonably anticipated." (Id. at p. 676, 25 Cal.Rptr.2d 137, 863 P.2d 207, emphasis added.) "[T]he scope of the duty is determined in part by balancing the foreseeability of the harm against the burden of the duty to be imposed." (Id. at p. 678, 25 Cal.Rptr.2d 137, 863 P.2d 207.)
I believe the majority opinion would have detrimental, unintended consequences. Although the majority tries to exclude certain types of parking facilities from its holding and analysis, its expansive opinion will be used to argue that any parking structure, whether commercial or residential, is "inherently dangerous." I do not see any principled distinction between an "inherently dangerous" commercial parking structure and "private multi-residential parking garages with restricted parking" which the majority excludes from its analysis. Any "dangerous conditions" which could be found in a commercial parking garage will also be found in a "private multi-residential parking garage".
The majority relies on Gomez v. Ticor (1983) 145 Cal.App.3d 622, 193 Cal.Rptr. 600 which describes "dangerous conditions" in commercial parking garages as places where "numerous tempting targets (car stereos, car contents, the cars themselves) are displayed for the thief" and "high walls, low ceilings and the absence of the cars' owners allow the thief or vandal to work in privacy and give him time to complete his task." (Id. at p. 628, 193 Cal.Rptr. 600.) The Gomez court noted that the "deserted, labyrinthine nature of these structures, especially at night, Whether the parking structure is residential or commercial, the following hypothetical shows the weakness in the majority's opinion. For 30 years Mr. Jones has owned a commercial parking structure which adjoins a dental office. There is a gate at the entrance of the parking structure and an employee who gives out tickets to enter. The parking structure is open from 8 a.m. to 5 p.m. There has not been a criminal event in the parking structure during the 30 years Mr. Jones has owned it. Under the majority's reasoning, Mr. Jones's commercial parking structure is "inherently dangerous," and Mr. Jones cannot prevail at the summary judgment stage on the basis of duty even though no criminal activity has ever occurred on the property.
The fallacy of the majority's analysis is further illustrated when we compare Mr. Jones's dental office parking structure with a 100-unit apartment complex with a multi-level parking structure, where the residents come and go 24 hours a day. The majority finds that the dental office parking structure is "inherently dangerous" while the 100 apartment parking structure is not. It would appear the dental office parking structure is safer than the apartment parking structure, although this is exactly the opposite of what the majority holds.
Furthermore, my colleagues find that the parking structure in this case is "inherently dangerous" based solely on the features of commercial parking structures as emphasized in Gomez. If we were to follow this line of reasoning, then all subways, all hallways in office or residential buildings, all parking garages in residential and commercial buildings, all parking structures at sports events, and all movie theaters, for example, would be inherently dangerous because of their mere existence. Other examples abound; I need not go on.
As one commentator has noted: "Because all businesses attract crime to some extent, they could all be characterized as 'inherently dangerous.' At various times, courts have described parking facilities, [Gomez v. Ticor, supra, 145 Cal.App.3d at p. 628, 193 Cal.Rptr. 600] all-night laundromats, [Castillo v. Sears, Roebuck & Co. (Tex.App. 1983) 663 S.W.2d 60, 66] emergency room facilities, [Isaacs v. Huntington Memorial Hosp. (1985) 38 Cal.3d 112, 129, 211 Cal.Rptr. 356, 695 P.2d 653] banks, [Stalzer v. European Am. Bank (1982) 113 Misc.2d 77, 448 N.Y.S.2d 631, 635] and college dormitories [Mullins v. Pine Manor College (1983) 389 Mass. 47, 449 N.E.2d 331, 335] as being facilities that attract crime. The mere fact that a crime has occurred almost always allows one to draw the conclusion, after the fact, that the premises were inherently dangerous. Moreover, any duty premised on the idea that the business attracts crime ... ignores the fact that many such businesses are economically viable precisely because they do not require any on-site labor. Once proprietors are forced to provide security guards at all-night laundromats or at bank teller machines, those operations cease to become profitable. It serves no one to impose a duty which, rather than protecting customers, forces the businesses which they frequent to close. One could also foresee prohibitively high insurance premiums on businesses which have enjoyed an absence of crime in the past but which are considered inherently dangerous by insurance companies. Although these considerations should be used when dealing with a duty to install simple, inexpensive security measures, ... they should not be sufficient to require landlords to employ expensive security measures, such as private patrol forces." (When Crime Pays: Business Landlords' Duty to Protect Customers from Criminal Acts Committed on the Premises (1990) 31 S. Tex. L.Rev. 89, 112-113).
Our Supreme Court has stated that "[w]hen deciding whether to expand a tort duty of care, courts must consider the potential social and economic consequences." (Macias v. State of California (1995) 10 Cal.4th 844, 859, 42 Cal.Rptr.2d 592, 897 P.2d I would affirm the trial court's ruling.
The Gomez court concluded that the foreseeability of such an attack was a question of fact for the jury. (Gomez, supra, 145 Cal.App.3d at p. 628, 193 Cal.Rptr. 600.) This conclusion was rejected by Ann M., which as noted above, reaffirmed that when foreseeability is being analyzed to determine the existence or scope of a duty of care, it is a question of law to be determined by the court. (Ann M., supra, 6 Cal.4th at p. 678, 25 Cal.Rptr.2d 137, 863 P.2d 207.)