Constance B. v. State of California

• Decision Date: 28 February 1986
• Citation: 223 Cal.Rptr. 645,178 Cal.App.3d 200
• Court: California Court of Appeals Court of Appeals
• Parties: CONSTANCE B., Plaintiff and Appellant, v. STATE of California, Defendant and Respondent. Civ. 23157.

Page 645

223 Cal.Rptr. 645

178 Cal.App.3d 200

CONSTANCE B., Plaintiff and Appellant, v. STATE of California, Defendant and Respondent.

Civ. 23157.

Court of Appeal, Third District, California.

Feb. 28, 1986.

Review Denied May 22, 1986.

Patrick R. Beasley, Redding, for plaintiff and appellant

Robert F. Carlson, Ronald I. Harrison, John L. Sullivan, Gail D. Ohanesian and Milton B. Kane, Sacramento, for defendant and respondent.

BLEASE, Associate Justice.

Plaintiff, Constance B., appeals from a summary judgment in favor of defendant, State of California. The issue is whether, on the material facts presented below, the state may be held liable for failure to undertake security measures to protect plaintiff from a criminal assault at a state-owned highway roadside rest area. ¹ The answer is no. We will affirm the judgment.

FACTS

The Dunnigan rest stop on Interstate 5 was constructed in 1967 or 1968 from plans prepared by the State Department of Architecture at the site of a grove of eucalyptus trees. The restroom building is located approximately 15 yards east of the parking area. The north half of the building is the women's restroom and the entrance is at On September 10, 1979, at 12:30 a.m., plaintiff, while driving to Redding, stopped at the northbound Dunnigan facility. She walked from her car to the restroom building. As she approached the women's restroom, she saw Cameron Piles standing at the northeast corner of the building. He stared at her. Another woman came out of the restroom and plaintiff entered. She went into the first stall. When she came out Piles was in the restroom. He beat her viciously, threatened to kill her with the knife he brandished, and forced her to submit to a sexual assault. ²

the northwest corner of the building. The area between the parking lot and the restroom building is dark, but the outside walls of the building are "well illuminated."

Plaintiff filed this action claiming liability of the state for the injuries she suffered from the assault. Her complaint alleges that the rest stop was in a dangerous and defective condition because of improper patrolling, improper lighting, improper maintenance, and insufficient visibility. She alleges that, as a result of the condition of the premises, Piles was able to conceal himself in a place adjacent to the women's restroom, to follow her into the restroom unnoticed, and to attack her.

The state moved for summary judgment on the ground that it had no duty to undertake security measures. The state's showing consisted of the foregoing facts and evidence that no similar incidents had occurred at the Dunnigan rest stop or at any rest stop in the 11-county administrative district of which the Dunnigan facility is a part.

Plaintiff tendered a countershowing that two previous daylight thefts had occurred at the Dunnigan rest stop. Plaintiff also introduced a declaration of a "security consultant" that, in his opinion, placement of the restroom facilities at the Dunnigan rest stop presents "obvious and serious security risks for users...." The consultant cited the following "risks": the placement of the lights and trees cast heavy shadows at night; the restroom building is too far from the parking lot to provide adequate surveillance by other users; the side entrances to the building result in blocked visibility of the entrance by other users; the bulletin board is placed adjacent to the men's restroom [which distracts attention from the women's restroom]; and the building is constructed five feet below the grade of the freeway and "buffered" from sight by numerous trees which obscure vision. This appeal followed a judgment for the state.

DISCUSSION

I

The liability of the state is established by statute. (Gov.Code, § 815, subd. (a).) Plaintiff's complaint tenders a single cognizable theory of liability, personal injury caused by a dangerous condition of the state's property. "[A] public entity is [only] liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred...." (Gov.Code, § 835.) " 'Dangerous condition' means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used." (Gov.Code, § 830, subd. (a).) The material facts produced at the summary judgment proceedings show there was no dangerous condition of property at the rest stop.

Plaintiff's claim of liability is predicated upon the notion that the state provided an opportunity for misconduct by a third party. "There are a number of situations in the law of negligence and breach of statutory duty ... where a defendant is liable for providing or not removing the opportunity for another to do harm or for a natural event to cause it. The 'causal connexion [sic]' between a defendant's act and the harm may be succinctly described by saying that he has 'occasioned' it." (Hart and Honore, Causation in the Law (1959) p. 179.) "Occasioning" harm by maintaining public property in a manner, which increases the risk of a criminal assault may give rise to liability under Government Code section 835. In Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 205 Cal.Rptr. 842, 685 P.2d 1193, an assailant jumped from behind thick untrimmed foliage and trees adjoining the college's stairway to a parking lot and attempted to rape the plaintiff. This modus operandi had previously been used in sexual assaults on the campus. The Supreme Court held that plaintiff stated a cause of action for harm occasioned by a dangerous condition of public property.

We turn to Isaacs v. Huntington Memorial Hospital, supra, 38 Cal.3d 112, 211 Cal.Rptr. 356, 695 P.2d 653 for guidance on the measure of the duty to avoid "occasioning" the assault on plaintiff. The duty arises here, if at all, from "the special relationship between the landowner and the invitee (see Rest.2d Torts, §§ 314A, 315) and the general duty to exercise reasonable care in the management of one's property...." (Isaacs, supra, 38 Cal.3d at pp. 123-124, 211 Cal.Rptr. 356, 695 P.2d 653, citations and fn. omitted.) Isaacs quotes with emphatic approval the following equivocal language regarding this duty from the Restatement Second of Torts section 344, comment (f): "If the place or character of [a landowner's] 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...." (Id., at p. 124, 211 Cal.Rptr. 356, 695 P.2d 653, original emphasis.) On the question whether it is reasonable to anticipate such conduct Isaacs cautions that "Forseeability ' "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." [Citation.] One may be held accountable for creating even " 'the risk of a slight possibility of injury if a reasonably prudent [person] would not do so.' " ' (Bigbee v. Pacific Tel. & Tel. Co., supra, 34 Cal.3d at p. 57 [192 Cal.Rptr. 857, 665 P.2d 947].)" (Id., at p. 126, 695 P.2d 653, 211 Cal.Rptr. 356.)

The state contends that there is no duty whatever to take precautions against assaults at roadside rest areas because such conduct is unforseeable. We are constrained by Isaacs to disagree. The operation of such a facility open to the public at night, may be said to have "creat[ed] an 'especial temptation and opportunity for criminal misconduct....' " (See Isaacs, supra, at p. 130, 211 Cal.Rptr. 356, 695 P.2d 653, quoting from Prosser, Torts (4th ed. 1971) § 33, p. 174.) The state's rest stops are open for public use at all hours of the day and night. Obviously, at times the ebb and flow of traffic will isolate small numbers of users at a stop. The motoring public includes a portion of the criminal element of our society. It is dismally predictable that where there are highways there will be highwaymen--and worse. It is predictable that such malefactors will take criminal opportunities in the course of their travels. We cannot conclude that the degree of predictability of criminal assaults under cover of darkness at rest stops is so low that a reasonably thoughtful administrator would never have a duty to anticipate such conduct and take account of it in guiding practical conduct concerning matters that might enhance the security of innocent users.

II

However, that does not end the analysis. This abstraction achieves life only in the facts of a case. "Actionable negligence involves a legal duty to use due care, a breach of such legal duty, and the breach as the proximate or legal cause of the resulting injury. [Citation.] The duty of care [is] always related to 'some circumstance of time, place and person'...." (See United States Liab. Ins. Co. v. Haidinger-Hayes, Inc. (1970) 1 Cal.3d 586, 594, 83 Cal.Rptr, 418, 463 P.2d 770.) "Breach of duty is usually a fact issue for the jury; if the circumstances permit a reasonable doubt whether the defendant's conduct violates the standard of due care, the doubt must be resolved by the jury as an issue of fact rather than of law by the court. [Citation.]" (Musgrove v. Ambrose Properties (1978) 87 Cal.App.3d 44, 53, 150 Cal.Rptr. 722; cited with apparent approval in Isaacs, supra, 38 Cal.3d at p. 131, 211 Cal.Rptr. 356, 695 P.2d 653; also see e.g. Mosley v. Arden Farms (1945) 26 Cal.2d 213, 217, 157 P.2d 372.) Similarly, "[g]iven a breach of duty by the defendant, the...