Ann M. v. Pacific Plaza Shopping Center

• Decision Date: 16 December 1993
• Docket Number: No. S030815,S030815
• Citation: Ann M. v. Pacific Plaza Shopping Center, 6 Cal.4th 666, 25 Cal.Rptr.2d 137, 863 P.2d 207 (Cal. 1993)
• Court: California Supreme Court
• Parties: , 863 P.2d 207, 62 USLW 2398, 1994 O.S.H.D. (CCH) P 30,356 ANN M., Plaintiff and Appellant, v. PACIFIC PLAZA SHOPPING CENTER et al., Defendants and Respondents

Page 137

25 Cal.Rptr.2d 137

6 Cal.4th 666, 863 P.2d 207, 62 USLW 2398,

1994 O.S.H.D. (CCH) P 30,356

ANN M., Plaintiff and Appellant, v.PACIFIC PLAZA SHOPPING CENTER et al., Defendants and Respondents.

No. S030815.

Supreme Court of California

Dec. 16, 1993.

Milton J. Silverman, Lemish & Lewis and Carl M. Lewis, San Diego, for plaintiff and appellant.

McInnis, Fitzgerald, Rees, Sharkey & McIntyre, Donald A. Vaughn, Mary Elizabeth DeVoy, Marie A. LaSala and Kevin M. Arnold, San Diego, for defendants and respondents.

PANELLI, Associate Justice.

We granted review in this case to determine 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.We conclude that, under the facts of this case, the owner did not owe a duty to provide security guards.

I.BACKGROUND

This case arises out of a civil complaint filed by Ann M. after she was raped at her place of employment.Unless otherwise indicated, the facts as stated herein are not in dispute.¹

On June 17, 1985, Ann M. was employed by the Original 60 Minute Photo Company, a photo processing service located in a secluded area of the Pacific Plaza Shopping Center (hereafter shopping center).The shopping center, owned and operated by defendants(hereafter sometimes collectively referred to as Pacific Plaza), is a strip mall located on Garnet Avenue in the Pacific Beach area of San Diego.Approximately 25 commercial tenants occupy the shopping center at any one time.

The lease between the photo store and the shopping center granted the owners of the shopping center the exclusive right to control the common areas.²Although the lease gave Pacific Plaza the right to police the common areas, the lease did not purport to impose an obligation to police either the common areas or those areas under the exclusive control and management of the tenants.In fact, Pacific Plaza hired no security guards.

At approximately 8 a.m. on June 17, Ann M. opened the photo store for business.She was the only employee on duty.The door was closed but unlocked.The store was equipped with a "drop gate" that was designed to prevent customer access behind the counter but it had been broken for some period of time.Shortly after Ann M. opened the store, a man she had never seen before walked in "just like a customer."Ann M. greeted the man, told him that she would assist him shortly, and turned her back to the counter.The man, who was armed with a knife, went behind the counter, raped Ann M., robbed the store, and fled.The rapist was not apprehended.

In 1984 and 1985 violent crimes occurred in the census tract in which the shopping center is located.While the record includes some evidence of criminal activity on the shopping center's premises prior to Ann M.'s rape--bank robberies, purse snatchings, and a man pulling down women's pants ³--there is no evidence that Pacific Plaza had knowledge of these alleged criminal acts.In fact, Pacific Plaza offers uncontroverted evidence that it "is the standard practice of [Pacific Plaza] to note or record instances of violent crime" and that Pacific Plaza's records contain no reference to violent criminal acts in the shopping center prior to Ann M.'s rape.

Ann M. presented evidence that the employees and tenants were concerned about their safety prior to her rape.These concerns centered around the presence of persons described as transients, who loitered in the common areas.One of the employees of the photo store called the police on two different occasions prior to the incident involved herein to complain that she felt threatened by persons loitering outside her employer's store.The photo store ultimately granted this employee permission to bring her dog to work for protection.This employee worked a late night shift, while Ann M. worked during the day.During periodic meetings of the merchants' association, an organization to which all tenants belonged, the tenants voiced complaints about a lack of security in the shopping center and the presence of transients.There is no evidence to indicate, however, that Ann M.'s rapist was one of the loitering transients or that the presence of the transients contributed in any way to Ann M.'s attack.

According to Ann M.'s deposition testimony, the merchants' association invited a security company to address the tenants' concerns at one of its meetings.During that meeting, the security company informed the tenants of different security options and recommended that regular walking patrols be instituted.Ann M. stated in her deposition that she was told that the merchants' association decided not to hire the security patrols, because the cost would be prohibitive.Ann M. further testified that she was told at these meetings that the merchants' association requested that the shopping center provide such patrols.No such patrols were provided.According to the lease, if the shopping center had provided the requested patrols, the tenants would have borne the cost in the form of additional rent.Ultimately, the merchants' association hired a security company to drive by the area three or four times a day instead of arranging for foot patrols.Ann M. was raped sometime thereafter.

After the rape, Ann M. filed a civil complaint for damages in the superior court alleging causes of action for negligence against Amapho Corp.(the owner and operator of the photo store), Glen Hutchinson(the president of Amapho Corp.), the shopping center, and La Jolla Development Co.(the corporation employed to manage the shopping center at the time of the rape).⁴Ann M. alleged that the defendants were negligent in failing to provide adequate security to protect her from an unreasonable risk of harm.This risk specifically was alleged to be the presence of transients and the potential for violent confrontation between transients and employees of the shopping center.

Pacific Plaza filed a motion for summary judgment or summary adjudication of issues, claiming that it owed no legal duty to Ann M., primarily because Ann M.'s attack was unforeseeable.Ann M. countered that a duty was owed: the attack was foreseeable because Pacific Plaza permitted transients to congregate in the common areas of the shopping center.Ann M. contended that "[s]ecurity patrols to roust the center's transient population would have provided the [necessary]'first line of defense' " that Pacific Plaza allegedly had a duty to provide.The trial court granted the motion, finding that Pacific Plaza owed Ann M. no duty of care, and entered judgment in favor of Pacific Plaza.

Ann M. appealed.Following rehearing, the Court of Appeal affirmed the judgment of the trial court, but on different grounds.The Court of Appeal held that Pacific Plaza owed a duty to tenants and their employees to maintain the common areas and leased premises in a reasonably safe condition, including the duty to take reasonable precautions against foreseeable criminal activity by third persons; however, based on the evidence presented, the Court of Appeal held that no reasonable jury could have concluded that Pacific Plaza acted unreasonably in failing to provide the security patrols that Ann M. claims were necessary.

We granted Ann M.'s petition for review.

II.DISCUSSION

A.Standard of Review

Although Ann M.'s complaint is phrased in broader terms, Ann M. concedes that the gravamen of her complaint is that Pacific Plaza's failure to provide security patrols in the common areas constituted negligence.We therefore confine our review to this issue.(Cf.Chern v. Bank of America(1976)15 Cal.3d 866, 873, 127 Cal.Rptr. 110, 544 P.2d 1310["purpose of summary procedure is to penetrate through evasive language and adept pleading and ascertain the existence or absence of triable issues"];FPI Development, Inc. v. Nakashima(1991)231 Cal.App.3d 367, 381-382, 282 Cal.Rptr. 508[pleadings serve as the outer measure of materiality in a summary judgment proceeding].)

An 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.(United States Liab. Ins. Co. v. Haidinger-Hayes, Inc.(1970)1 Cal.3d 586, 594, 83 Cal.Rptr. 418, 463 P.2d 770;6 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, § 732, p. 60.)On review of a summary judgment in favor of the defendant, we review the record de novo to determine whether the defendant has conclusively negated a necessary element of the plaintiff's case or demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial.(Molko v. Holy Spirit Assn.(1988)46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46.)

For the reasons discussed below, we conclude that, under the facts of this case, the scope of any duty owed by Pacific Plaza to Ann M. did not include providing security guards in the common areas.Accordingly, we do not address whether Pacific Plaza's failure to provide security guards was a proximate cause of Ann M.'s injuries (SeeNola M. v. University of Southern California(1993)16 Cal.App. 4th 421, 20 Cal.Rptr.2d 97[hereafter Nola M.].)

B.Duty

The existence of a duty is a question of law for the court.(Isaacs v. Huntington Memorial Hospital(1985)38 Cal.3d 112, 124, 211 Cal.Rptr. 356, 695 P.2d 653[hereafter Isaacs];Southland Corp. v. Superior Court(1988)203 Cal.App.3d 656, 663, 250 Cal.Rptr. 57.)Accordingly, we determine de novo the existence and scope of the duty owed by Pacific Plaza to Ann M.

It is now well established that California law requires landowners to maintain land in their possession and control in a reasonably safe condition.(Civ.Code, § 1714;Rowland v. Christian(1968)69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561.)In the case of a...