Donnell v. California Western School of Law

• Decision Date: 22 April 1988
• Docket Number: No. D005003,D005003
• Citation: 246 Cal.Rptr. 199,200 Cal.App.3d 715
• Parties: , 45 Ed. Law Rep. 1163 William S. DONNELL, et al., Plaintiffs and Appellants, v. CALIFORNIA WESTERN SCHOOL OF LAW, et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

Page 199

246 Cal.Rptr. 199

200 Cal.App.3d 715, 45 Ed. Law Rep. 1163

William S. DONNELL, et al., Plaintiffs and Appellants, v. CALIFORNIA WESTERN SCHOOL OF LAW, et al., Defendants and Respondents.

No. D005003.

Court of Appeal, Fourth District, Division 1, California.

April 22, 1988.

Review Denied July 28, 1988.

Thorsnes, Bartolotta, McGuire & Padilla, Kevin Quinn and Suuzen Ty Anderson, San Diego, for plaintiffs and appellants.

McInnis, Fitzgerald, Rees, Sharkey & McIntyre, James E. Chodzko and Virginia R. Gilson, San Diego, for defendants and respondents.

KREMER, Presiding Justice.

Plaintiffs William and Nancy Donnell (Donnell) appeal summary judgment favoring defendants California Western School of Law (Cal Western), its security guard Lloyd Liverman and employee Dennis Avery on plaintiffs' complaint for negligence, conscious disregard of safety, negligent infliction of emotional distress and loss of consortium. We affirm the summary judgment.

I

Donnell's complaint alleged: Cal Western runs a law school at 350 Cedar Street in a San Diego building it owns, possesses and controls. Cal Western provides no parking for its students at or near its law school. On January 30, 1984, Cal Western's library and school grounds were open for student use until midnight. About 10 p.m., Cal Western law student William Donnell left Cal Western's building after studying in its library and headed toward his parked car. While walking along the west side of Cal Western's building, William was attacked, stabbed and injured by an unknown assailant. William called for help, but no security personnel came to his assistance. Cal Western's building had no exterior lights on its west side. No security guards patrolled the building's west side.

Donnell further alleged: Defendants knew criminal activity had occurred in the immediate area but negligently failed to provide adequate lighting and security around the law school building. Students, including William, going to and from the law school were forced to traverse the dangerous area because Cal Western did not provide parking for its students. Despite knowing about prior criminal activity perpetrated on persons and property around its law school premises, defendants did not warn William of the dangerous conditions, provide adequate security forces or otherwise safeguard law school students from criminal acts.

William sought compensatory damages and punitive damages. His wife Nancy sought damages for loss of consortium.

II

Defendants sought summary judgment, asserting as a matter of law defendants had no legal duty to protect William from crimes occurring on the public sidewalk. For purposes of defendants' motion, the parties agreed the following facts were undisputed: About 10:30 p.m. on the night of the attack, William left Cal Western's campus to go home. As he left the law school, William headed to his car parked in Cal Western's faculty parking lot. While on the sidewalk at the corner of Third Avenue and Cedar, William heard the sound of broken glass. William's eventual assailant was breaking into a car parked on Third Avenue near the law school building's northwest corner. William jogged 100 feet up to the car. During a struggle, the assailant stabbed William on the sidewalk. ¹ Third Avenue has been used by the public for more than five years.

After hearing, the court granted defendants' motion for summary judgment. The court held Cal Western had no duty to protect William from criminal assault on the sidewalk bordering its building. Donnell appeals, contending Cal Western's two "coexisting" special relationships with William--the school-student special relationship and the landholder-business invitee relationship--required Cal Western to take reasonable, inexpensive measures to protect him from foreseeable criminal assault on the City-owned sidewalk bordering the school. We disagree.

III

"In considering whether one owes another a duty of care, several factors must be weighed including among others: ' "[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.]" (Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 806, 205 Cal.Rptr. 842, 685 P.2d 1193.)

Generally a person does not have a duty to control another's conduct or to warn those who may be endangered by such conduct. However, a duty may arise where a special relationship exists giving rise to a right to such protection. ( Peterson v. San Francisco Community College Dist., supra, 36 Cal.3d at p. 806, 205 Cal.Rptr. 842, 685 P.2d 1193.)

IV

We decline to extend principles of law arising out of the school-minor student relationship (Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 513, 150 Cal.Rptr. 1, 585 P.2d 851; Raymond v. Paradise Unified School Dist. (1963) 218 Cal.App.2d 1, 10, 31 Cal.Rptr. 847; Satariano v. Sleight (1942) 54 Cal.App.2d 278, 283-284, 129 P.2d 35) to impose on Cal Western a duty to insure its adult students' safety once they have left Cal Western's premises. Mature students are generally considered business invitees. (Peterson v. San Francisco Community College Dist., supra, 36 Cal.3d at pp. 806, fn. 3, 808-809, 205 Cal.Rptr. 842, 685 P.2d 1193; compare Satariano v. Sleight, supra, 54 Cal.App.2d 278, 283, 129 P.2d 35: "[T]he amount of care due to minors increases with their immaturity and consequent heedlessness to danger.") Further, nothing in the record suggests Cal Western voluntarily assumed a duty to protect its students from criminal acts outside its premises. Davidson v. City of Westminster (1982) 32 Cal.3d 197, 206, 185 Cal.Rptr. 252, 649 P.2d 894, citing Hartzler v. City of San Jose (1975) 46 Cal.App.3d 6, 120 Cal.Rptr. 5.)

V

A right to protection from the dangerous conduct of another may arise from the special relationship between a landholder and its invitees. ( Peterson v. San Francisco Community College Dist., supra, 36 Cal.3d at p. 806, 205 Cal.Rptr. 842, 685 P.2d 1193.) Thus, the issue here is the extent of Cal Western's premises liability to its invitee William.

"A defendant cannot be held liable for the defective or dangerous condition of property which it [does] not own, possess, or control. Where the absence of ownership, possession, or control has been unequivocally established, summary judgment is proper." (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134, 211 Cal.Rptr. 356, 695 P.2d 653.)

Donnell contends Cal Western had a duty to take reasonable steps to protect its invitees from foreseeable criminal assaults on sidewalks giving immediate access to its building. Donnell seeks to hold Cal Western liable for a dangerous condition of a City-owned sidewalk adjoining Cal Western's property, asserting Cal Western had the power to "control" the sidewalk by placing lights on its own building to shine on the sidewalk. Donnell also asserts Cal Western should perhaps have mounted exterior monitors on its building walls to permit its students to view the dangerous area before traversing it. However, Donnell attempts to expand the principle of "control" of property to include situations where an adjoining landowner merely has the ability to influence or affect such property. Donnell in effect attempts to hold Cal Western responsible for the dangerous condition of "something with which [its] only connection is the fact of [its] ownership or use of the abutting land." (Kopfinger v. Grand Central Pub. Market (1964) 60 Cal.2d 852, 858, 37 Cal.Rptr. 65, 389 P.2d 529; Ross v. Kirby (1967) 251 Cal.App.2d 267, 270, 59 Cal.Rptr. 601.) The law of premises liability does not extend so far as to hold Cal Western liable merely because its property exists next to adjoining dangerous property and it took no action to influence or affect the condition of such adjoining property.

A

In Kopfinger v. Grand Central Pub. Market, supra, 60 Cal.2d 852, 37 Cal.Rptr 65, 389 P.2d 529, as a result of the defendant merchant's business operation, meat fell to the sidewalk in the course of defendant's activities rendering the walkway dangerous to pedestrians. In reversing a nonsuit, the court held the defendant could be held liable because its business activities affirmatively created a dangerous physical condition on the adjacent public sidewalk which was not timely remedied by the defendant. The court specifically distinguished the "numerous cases to the effect that in the absence of statute there is no common-law duty on the occupant of land abutting a sidewalk to repair or maintain the sidewalk." ( Id. at p. 858, 37 Cal.Rptr. 65, 389 P.2d 529.) Unlike the plaintiff in Kopfinger, Donnell has presented no evidence Cal Western's business activities affirmatively created a dangerous physical condition on the City-owned sidewalk.

B

In Ross v. Kirby, supra, 251 Cal.App.2d 267, 59 Cal.Rptr. 601, the court affirmed an order denying defendants' motion for judgment notwithstanding the verdict. Plaintiff prospective customer tripped on a drainage berm in a private walkway serving as one of the approaches to defendants' restaurant. Defendants had built the restaurant with its back door fronting directly onto an adjoining public parking lot and 3 feet from the berm which was partly on defendants' property. Defendants invited the public to enter from the parking lot, thus deriving "a special benefit apart from the ordinary and accustomed use of the walkway." ( Id. at p. 270, 59 Cal.Rptr. 601.) The berm benefited defendants' property by preventing drainage into their restaurant. Further, defe...