Duarte v. State
| Decision Date | 08 September 1978 |
| Citation | 84 Cal.App.3d 729,148 Cal.Rptr. 804 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Yvonne DUARTE, Plaintiff and Appellant, v. STATE of California et al., Defendants and Respondents. Civ. 16055. |
Krause, Baskin & Shell and Marshall W. Krause, Kentfield, for plaintiff and appellant.
Women's Union at New College of California School of Law and Roberta Achtenberg, San Francisco, amicus curiae for plaintiff and appellant.
Luce, Forward, Hamilton & Scripps and Gerald S. Davee, San Diego, for defendants and respondents.
Plaintiff Yvonne Duarte's complaint sought damages for wrongful death of her daughter, Tanya Gardini. Tanya was raped and murdered in the student residence hall owned and operated by the California State University at San Diego. Duarte's complaint tendered contract, negligence, wanton and wilful misconduct, and negligent misrepresentation as alternative theories of liability.
The trial court sustained demurrers to each of the four causes of action without leave to amend. On appeal Duarte has abandoned her third cause of action.
Duarte's first cause of action is based upon the theory of breach of warranty of habitability arising out of the written rental contract between the university and decedent. The second cause of action, sounds in negligence, charges the university with the failure to meet the duty to protect, care for, supervise, house, assist and otherwise exercise custodial responsibility towards her daughter. The fourth cause of action is for negligent misrepresentation concerning the safety of the university dormitory allegedly relied upon by plaintiff in placing her daughter in the dormitory rather than in a private security apartment.
We assume for the purpose of this proceeding the truth of any properly pleaded factual allegations contained in the complaint. (Serrano v. Priest, 5 Cal.3d 584, 591, 96 Cal.Rptr. 601, 487 P.2d 1241.) However, since the demurrers were sustained without leave to amend, we consider other relevant matters of which the court could take judicial notice (Evid.Code, § 452) as well as matters that are represented in good faith can be cured by amendment. (Minsky v. City of Los Angeles, 11 Cal.3d 113, 118, 113 Cal.Rptr. 102, 520 P.2d 726.)
The facts so pled are:
Tanya Gardini entered the California State University at San Diego in September 1974 as a freshman. She had just graduated from high school. She arranged for living accommodations at the Zura Hall, a dormitory facility operated by the university on its campus. Duarte alleges the university expressly and impliedly represented that the housing facilities were reasonably safe and secure for their occupants; Mrs. Duarte relied upon such representations and by reason thereof took no steps to provide additional safety or security measures for her daughter.
On December 2, 1974, Tanya was raped and murdered in her room at Zura Hall by Lee Ellis Handy, Jr. How the murderer entered is not known but Duarte anticipates such facts will be determined by discovery pre-trial. Handy, a Navy seaman, confessed to the rape and murder, pled guilty, and is now serving a life sentence in the California state prison system.
The complaint alleges the campus of the California State University attracted many nonstudents who were interested in establishing social relationships with the many young women living on the campus. Before Tanya's murder the university was aware there was a chronic pattern of violent assaults, rapes and attacks on female members of the university community, and that this pattern was escalating.
Despite this knowledge, the university failed to take responsible precautions to reduce the hazard and to protect the residents in the university dormitories or to warn the students or to train the students to protect themselves. The complaint charges that defendants not only were aware of the increasing pattern of violence on the campus but engaged in a pattern of covering up these events so that the true extent of the violence on the campus was Tanya was living away from home for the first time; she was subjected to a danger for which she and others were totally unprepared and unwarned in living in the university dormitories; the complaint further alleges that in contracting for a room in Zura Hall, Tanya was required to submit herself to the control of the university far more extensively than does the university student not living in a resident dormitory; limitations are placed on the use or misuse of alcohol or possession of drugs. Dismissal may result from inappropriate behavior. Failure to abide by university residence hall standards could result in expulsion. The university could revoke Tanya's rental agreement on one day's notice. The university reserved the right to enter the students' rooms to inspect for purposes of management, health, safety, and maintenance of rules and regulations; it is alleged the rental agreement provides far greater control of the student than does the ordinary landlord and tenant relationship. Duarte asserted that there develops a "special relationship" between the students and the university arising out of the terms of the contract and that "a dangerous condition" existed on the premises under control of the university for which there is a legal responsibility. 1
not generally known to Duarte or the university campus.
Duarte first asserts that her complaint states or can be amended to state a cause of action for negligence. Duarte contends the university has a duty to provide reasonable security from foreseeable criminal acts against student tenants by third party intruders.
Secondly Duarte contends the university had a contractual obligation to Tanya arising from the terms of the landlord-tenant agreement as well as from an implied in law covenant of habitability requiring the university to provide "a Safe residence." Finally Duarte argues that the sovereign immunity doctrine does not shield defendants from liability. We examine these contentions in order of presentation.
At the threshold of our inquiry into this novel pleading, we search for the fundamental rules, the source of the duty of one person to control the conduct of another or respond in damages.
At the outset of the search we find the "indispensible factor to liability founded upon negligence is the existence of a duty of care owed by the alleged wrongdoer to the person injured, or to a class of which he is a member." (Routh v. Quinn, 20 Cal.2d 488, 491, 127 P.2d 1, 3; Rest., 2d Torts, §§ 281A & B.) Further, a "duty of care" is merely a descriptive phrase, a conclusory statement that in a particular case one party will be adjudged liable for damages done another. As was said in Dillon v. Legg, 68 Cal.2d 728, 734, 69 Cal.Rptr. 72, 76, 441 P.2d 912, 916:
The sum total of those considerations giving rise to the duty of care is expressed in Civil Code section 1714. Liability is to be imposed "for an injury occasioned to another by his want of ordinary care or skill." And the most important of the considerations establishing want of ordinary care, i. e., duty, is foreseeability. (Tarasoff v. Regents of University of California, 17 Cal.3d 425, 434, 131 Cal.Rptr. 14, 551 P.2d 334.)
(Id. at pp. 434-435, 131 Cal.Rptr. at pp. 22-23, 551 P.2d at pp. 342-43.)
Under the common law, as a general rule, one person owed no duty to control the conduct of another (Richards v. Stanley, 43 Cal.2d 60, 65, 271 P.2d 23; Rest., 2d Torts, § 315), or to warn those endangered by such conduct (Rest., 2d Torts, § 314, com. c.; Prosser, Laws of Torts (4th ed. 1971) § 56, p. 341). The courts have carved out exceptions (which may well have swallowed this rule) in cases where the defendant stands in some special relationship to either the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of that conduct. (See Rest., 2d Torts, §§ 315-320.) At section 315 of the Restatement Second of Torts, a duty of care may arise from either "(a) a special relation . . . between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation . . . between the actor and the other which gives to the other a right of protection."
The legal responsibility for the protection of another person from the criminal misconduct of a third party (absent a specific contractual undertaking) has been historically founded on some recognized relationship existing between the parties such as carrier and passenger, innkeeper and guest, invitor and business guest, school district and pupil, employer and employee, landlord and tenant. The list and the concept has a general elasticity, characteristic of tort law principles. (Prosser, Law of Torts (4th ed. 1971), p. 174; Harper & Kime, The Duty to Control the Conduct of Another, 43 Yale L.J. 886, 904-905.)
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