Anaya v. Turk

• Decision Date: 16 February 1984
• Citation: 199 Cal.Rptr. 187,151 Cal.App.3d 1092
• Court: California Court of Appeals Court of Appeals
• Parties: Roberto ANAYA, Plaintiff and Appellant, v. Charles TURK and Patricia Turk, Individually, and dba Turk's Import and Export, Defendants and Respondents. Civ. 67762.

Page 187

199 Cal.Rptr. 187

151 Cal.App.3d 1092

Roberto ANAYA, Plaintiff and Appellant, v. Charles TURK and Patricia Turk, Individually, and dba Turk's Import and Export, Defendants and Respondents.

Civ. 67762.

Court of Appeal, Second District, Division 5, California.

Feb. 16, 1984.

Kim H. Pearman, a Law Corp., Los Angeles, for plaintiff and appellant.

Yusim, Stein & Hanger and Jeffrey G. Keane and Michael Tancredi, Beverly Hills, for defendants and respondents.

FEINERMAN, Presiding Justice.

Plaintiff, Roberto Anaya, appeals from a summary judgment in favor of defendants Charles and Patricia Turk, as individuals, and doing business as Turk's Import and Export. In his first amended complaint, plaintiff sought damages for severe personal injuries suffered when, as a social guest in defendants' apartment, he was shot by another defendant, Stanley Wilson (Wilson). ¹ As a result of his injuries, plaintiff is now a paraplegic.

Plaintiff's first amended complaint contained two causes of action pertaining to defendants. In the first cause of action, plaintiff alleged that defendants were lessees ² of the premises at 10225 Regent Street, Apartment 4, in the City of Los Angeles. Plaintiff alleged that defendants were negligent in maintaining, supervising and controlling said premises in that they allowed Wilson on the premises when they knew that he possessed vicious and dangerous propensities--in that he was inclined to attack, rob, injure and murder persons in his vicinity. Plaintiff claimed that defendants also negligently failed to warn him of Wilson's known dangerous propensities. Plaintiff further alleged that on August 27, 1979, while plaintiff was a guest at defendants' apartment, as a direct result of defendants' failure to bar Wilson or to warn plaintiff of Wilson's known dangerous propensities, Wilson fired a handgun at plaintiff and severely injured him.

Plaintiff's second cause of action is based on the same facts, but in this cause of action plaintiff alleged that defendants had been engaged in the sale and purchase of "restricted dangerous substances such as heroin and cocaine" with members of the general public between May 9, 1977 and August 27, 1978. He alleged that defendants knew or should have known that customers and prospective customers of defendants' illegal drug transactions were likely to be narcotic addicts and to possess vicious and dangerous propensities in that they were likely to be armed and would attack, rob, and injure persons in the vicinity of the drug transactions. It is alleged that defendants knew or should have known that sales and purchases of narcotics involve a high risk of death and great bodily injury to unknowing and innocent persons present during a drug transaction. Plaintiff alleged that on August 27, 1978, he was present in defendants' apartment when defendants attempted to sell narcotics to Wilson, that plaintiff knew nothing of any illegal drug activity on the premises, that defendants negligently failed to warn him about the dangerous activity being carried out at the apartment, and that as a result of defendants' negligence, plaintiff was severely injured when Wilson fired a handgun at him.

Summary Judgment as to the First Cause of Action.

Plaintiff's first cause of action tenders this question: Does a lessee of property have a duty to control criminal conduct of third persons on the rented premises or a duty to warn social guests who come on the premises about criminal propensities of other persons also on the premises?

"As a basic general principle, in the absence of a special relationship or circumstance, a private person has no duty to protect another from a criminal attack by a third person [citations]." (Totten v. More Oakland Residential Housing, Inc. (1976) 63 Cal.App.3d 538, 541, 134 Cal.Rptr. 29; Annot., Duty and Liability--Attack by Another 10 A.L.R.3d 619, 626; Rest.2d Torts, § 315.) However, a special relationship giving rise to such a duty has been found to exist between common carrier and passenger, innkeeper and guest, landowner and invitee, custodian and ward. (Rest.2d Torts, § 314A.)

The only relationship between plaintiff and defendants revealed in the affidavits of the parties submitted in support of and in opposition to the motion for summary judgment is that of a social guest on the premises of a friend or acquaintance. While plaintiff alleges that defendants maintained an import-export business on the premises of their apartment, it is clear from the evidence that plaintiff was not there as a business or public invitee, but merely as a licensee.

In the landmark case of Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561, the California Supreme Court held that the liability of an owner or occupier of land for negligence in the management of his property should not be dependent solely on the status of the plaintiff as a trespasser, licensee or invitee. The court stated (69 Cal.2d at p. 119, 70 Cal.Rptr. 97, 443 P.2d 561), "The proper test to be applied to the liability of the possessor of land in accordance with section 1714 of the Civil Code is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others, and, although the plaintiff's status as a trespasser, licensee, or invitee may in the light of the facts giving rise to such status have some bearing on the question of liability, the status is not determinative." ³ In Rowland, the plaintiff was a social guest on the premises of defendant's lessee's apartment when his hand was injured on a defective faucet which defendant was aware of but failed to repair and failed to warn plaintiff about.

In the case before us, plaintiff does not seek to establish that defendants had a duty to make their property safe against the criminal acts of others, but rather that they had a duty to protect plaintiff from the criminal acts of others on the premises either by refusing admittance to known dangerous characters or by warning plaintiffs about the known dangerous propensities of other persons on the property.

The determination as to whether a particular duty exists is a question of law and is essentially a public policy decision. Guidelines for such a determination were set down by the court in Rowland v. Christian, supra, 69 Cal.2d 108, at page 113, 70 Cal.Rptr. 97, 443 P.2d 561, where the court stated that the decision is made by balancing a number of considerations, including: "[T]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. [Citations.]" (See Shelton v. City of Westminster (1982) 138 Cal.App.3d 610, 617, 188 Cal.Rptr. 205.)

While all the factors mentioned in Rowland are important, it has often been said that the issue of duty rises or falls primarily on the question of foreseeability. With respect to the degree of foreseeability necessary to charge a landowner with liability for the actions of third persons, the court in 7735 Hollywood Blvd. Venture v. Superior Court (1981) 116 Cal.App.3d 901 stated at page 905, 172 Cal.Rptr. 528, "A proprietor of premises is not the insurer of the safety of persons on those premises. His duty to control the acts of third persons is a duty of reasonable care to protect against known or reasonably foreseeable risks. He is not required to take precautions against attacks by third persons which he has no reason to anticipate. [Citations.]"

In Wingard v. Safeway Stores, Inc. (1981) 123 Cal.App.3d 37, 176 Cal.Rptr. 320, the defendant owned a warehouse and plaintiff was an employee of the security guard service hired by defendant to guard the warehouse. Plaintiff was sexually assaulted by an intruder while patroling the warehouse premises and sued defendant for negligence in maintaining its warehouse. The appellate court affirmed a summary judgment in favor of defendant stating (123 Cal.App.3d at page 43, 176 Cal.Rptr. 320): "The cases are many which hold that, in the absence of prior similar incidents, an owner of land is not bound to anticipate the criminal activities of third persons, particularly where the wrongdoer was a complete stranger to both the landowner and the victim and where the criminal activity leading to the injury came about precipitously. [Citations.] Here, the record is clear that there were no previous assaults or even threats of violent criminal activity. The previous thefts at the warehouse neither provided notice nor created any reasonable foreseeability of the sexual attack which was inflicted upon plaintiff. [Citation.]" (See Riley v. Marcus (1981) 125 Cal.App.3d 103, 109, fn. 2, 177 Cal.Rptr. 827; Jamison v. Mark C. Bloome Co. (1980) 112 Cal.App.3d 570, 576, 169 Cal.Rptr. 399.)

In the case at bench, plaintiff alleged in his first cause of action that defendants knew or should have known that Wilson possessed dangerous propensities in that he was inclined to attack, rob, injure, etc. persons in his vicinity. The evidence presented in the summary judgment procedure fleshed out the incident. In his declaration, defendant Charles Turk stated that in the early hours of the morning on August 27, 1979, he called plaintiff and asked if plaintiff could give him a ride to the airport later in the day. Plaintiff said he wouldn't be available later, but he could give him an immediate ride. Plaintiff went to the Turk apartment and Charles Turk asked him to come in while he finished packing. Shortly thereafter, Stanley Wilson, a man whom Charles Turk had been in prison with, phoned. He wanted to...