Guralnick & Gilliland, Attorneys At Law

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CASE LAW -

Negligence: Foreseeability of Criminal Activity. Lisa P. v. Bingham (1996) 50 Cal.Rptr.2^d 646 [originally in Guralnick & Gilliland's Eleventh Annual Legislative Update] (In denying review, the Supreme Court ordered that the opinion not be officially published).

CASE FACTS

In 1992, while working as clerks at a Clothestime store, Lisa P. and another employee were robbed at gunpoint. Lisa P. was also raped by the assailant. Both employees brought a negligence action against three parties: (1) the owner of the shopping center which housed Clothestime ("Bingham"), (2) the property management company which managed the shopping center ("Stephens") and (3) the anchor tenant which assumed certain common area maintenance responsibilities ("Albertson's"). All were accused of failing to take reasonable measures to secure the shopping center and by failing to provide reasonable security.

The Superior Court granted summary judgment for all defendants. As to Bingham and Stephens, the court found that neither had a duty to plaintiffs and, even if there had been a duty to provide additional security, the failure to do so was not a cause of the injury suffered. As to Albertson's, the court found it also owed no duty to plaintiffs to provide security of the interior of the Clothestime premises, that it had breached no duties "with regard to security, operation, or maintenance of the common areas", and that it had neither actual nor constructive knowledge "from which it could anticipate the violent criminal acts sufficient to require any action or warnings by Albertson's, Inc."

The Superior Court based its finding of no duty upon its understanding of the analysis set forth in the 1993 case of Ann M. v. Pacific Plaza Shopping Center, 6 Cal.4th 666. In Ann M., the Supreme Court held that a landlord has a duty to take reasonable steps to secure common areas against the foreseeable criminal acts of third parties. In the immediate case, the Superior Court found no sufficient factors to support foreseeability.

Plaintiffs appealed the Superior Court ruling. Thereafter, the appellate court reversed the trial court ruling and held that: (1) high degree of foreseeability of criminal violent assault was established by proof of prior similar incidents of violent crimes and, therefore, duty of care owed to employees included hiring of security guards; (2) defendants failed to establish that their efforts to investigate criminal activity at shopping center were reasonable; (3) material issue of fact as to whether defendants' failure to provide security guards was cause of injuries to employees precluded summary judgment; (4) first two defendants failed to make showing that cause of action for breach of contract had no merit in order to trigger employees' duty to go beyond allegations of their pleading; and (5) material issue of fact as to whether anchor tenant breached alleged contract to provide reasonable security in shopping center precluded summary judgment for anchor tenant.

ANALYSIS

In any negligence action, it must be shown that defendant owed a duty to plaintiff, that defendant breached that duty and, finally, that the breach of duty was the proximate or legal cause of the injury. Foreseeability is a crucial factor in determining the presence of a duty. Additionally, a landowner has a duty to exercise reasonable care to discover criminal acts being committed or likely to be committed on its property.

In this case, the appellate court found sufficient evidence to support a high degree of foreseeability which established a duty to the plaintiffs. For example, similar incidents of robbery had occurred either within the shopping center or surrounding area during the two years prior to the Clothestime robbery and rape. A major point of discussion in the court's brief was how similar do previous incidents need to be before a high degree of foreseeability can be established. In application to the case at hand, the court found that the prior armed robberies were similar because all the stores had comparable physical set-ups and layouts of most retail establishments, a counter where cash was taken, free access to the public, were staffed by young people and were open for long hours. As such, the common thread among all of the incidents was that "from the standpoint of the criminal they all presented a similar opportunity for him to commit his intended crime." Accordingly, defendants had a duty to provide reasonable security measures. Furthermore, the court found that the defendants' efforts to investigate criminal activity were not reasonable. They solely relied on volunteered reports of crime and on conversations among employees.

Finally, the court concluded that the failure to provide reasonable security measures was the cause of plaintiffs' injuries. Apparently, the assailant had patronized the store earlier on the day of the robbery and had also walked by the store fifteen minutes before robbing the store. Additional security guards may have thwarted the robbery in that: (1) the assailant ran the risk of being recognized by attentive security guards and (2) a roving security guard may have suspected something was awry upon seeing the counter and cash register unattended. Therefore, the likelihood of preventing the crime by hiring security guards or implementing other security measures was evident.

In specifically addressing Albertson's role as the manager of the common area, the court found evidence that in the years immediately preceding the Clothestime incident, Albertson's had undertaken some degree of responsibility for common area maintenance and security. Albertson's argued that its Declaration of Restrictions and Common Area Maintenance Agreement did not contractually obligate it to provide common area security. However, the court also determined that, conversely, the documents did not expressly preclude security as a part of common area maintenance. Thus, their actions in the past coupled with no specific preclusion in the CC&Rs related to security, was enough for the court to find Albertson's potentially liable to plaintiffs.

CONCLUSION

Although this case does not directly involve a homeowners association, it is important in light of the ruling related to Albertson's role and potential liability as the entity providing common area maintenance. As we have warned in the past, associations are increasingly being held liable for failure to provide adequate security to prevent criminal acts of a third party. Once an association becomes aware of instances of violent crime within the subdivision or surrounding areas, it should immediately communicate with a security expert to obtain recommendations for security measures to deter future criminal conduct within the community. The association is entitled to rely upon the recommendations of competent experts and will be in a better position to limit its liability exposure if a future act of criminal conduct takes place.

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