Eric J. v. Betty M.

• Decision Date: 30 November 1999
• Docket Number: No. G019117.,G019117.
• Court: California Court of Appeals Court of Appeals
• Parties: ERIC J., a Minor, etc., Plaintiff and Appellant, v. BETTY M. et al., Defendants and Appellants.

90 Cal.Rptr.2d 549

76 Cal.App.4th 715

ERIC J., a Minor, etc., Plaintiff and Appellant, v. BETTY M. et al., Defendants and Appellants.

No. G019117.

Court of Appeal, Fourth District, Division 3.

November 30, 1999.

As Modified December 21, 1999.

Review Denied March 15, 2000.

Allred, Maroko & Goldberg and Lisa Bloom, Los Angeles, for Plaintiff and Appellant.

Dennison, Bennett & Press, James H. Goudge and Michael A. Tudzin, Woodland

Hills, for Defendants and Appellants Betty and Edwin M.

James A. Testa and Gregory J. Testa, Vista, for Defendants and Appellants Frank and Jean M.

William B. Craig, San Clemente, for Defendants and Appellants Phillip and Eddie M.

OPINION

SILLS, P.J.

When Robert was released from prison on rehabilitative parole after having been convicted of felony child molestation four years earlier, his family might have disowned him, but they didn't. They accepted him back. And when he found a girlfriend named Helen — who had an eight-year-old boy named Eric — they did not tell Helen about Robert's previous conviction, no doubt hoping against hope that he had reformed himself.

Unfortunately, and unbeknownst to any members of the family or Helen herself, Robert began molesting Helen's son early on in his relationship with her. Helen, acting as Eric's guardian, has now sued various members of Robert's family for not telling her of his previous conviction. Because some of the sexual abuse occurred on property owned by family members, Helen has asserted premises liability as well as general negligence as her two theories of liability.

The trial judge granted the family members' motion for nonsuit, and we now affirm the ensuing judgment. As we explain below, under the circumstances of this case, premises liability is a make-weight because there was no relationship between the harm and any premises owned by family members on which the harm occurred. The state was willing to take a chance on Robert by releasing him on parole, and so were his family members by accepting him back, so he cannot be legally equated, as Helen would have us do for purposes of premises liability, to a dangerous animal.

As to general negligence, the family members cannot be held liable for their "nonfeasance" in failing to warn Helen because to do so would contravene one of the most important, long standing, and recently reaffirmed principles of American tort law: You are not responsible for mere inaction without some sort of special relationship which creates a duty to take some action; the law does not require people to be good Samaritans (i.e., the traditional "no duty to aid" rule).

Facts and Litigation Background

In 1978 Robert was arrested for the misdemeanor of "annoying" a minor. He pled no contest and served six months, and was on probation for the next three years.¹ During that time he committed one probation violation for taking four high school freshman boys to dinner without supervision. Again he served some time in jail and was placed on probation.

Then in 1984 he was arrested for molesting a 10-year old boy. He again pled no contest, this time to a felony count of violating section 288, subdivision (a) (lewd or lascivious act with or upon body of child under the age of 14). He served four years in state prison, getting out in August 1988.

In June 1989, Robert met Helen and her eight-year-old son Eric at Magic Mountain. A relationship developed between Robert and Helen, and, by Thanksgiving 1989, Robert invited Helen and Eric for an overnight stay at the home of his mother Dorothy in Big Bear so she and Eric could meet some of the rest of his family.

Besides Dorothy, Robert's family consists of his father Edwin, his father's wife Betty, Robert's three brothers Frank Phillip and Eddie, Frank's wife Jean, and a sister named Diane. Dorothy and Diane are not parties to this appeal.²

The members of Robert's family concluded that Helen was his "girlfriend." Their relationship continued until early 1992, when Robert moved to Las Vegas.

Later that year, one of Helen's friends saw a special on television regarding convicts on parole, which showed a picture of a younger, beardless Robert and revealed that he was a convicted molester.³ She told Helen about the program, and a few days later, Helen took Eric to a police station. There, Helen learned that Robert had been molesting Eric. In June 1993 Robert was convicted of 23 counts of child molestation. He had never told Helen of his criminal history.

Helen, acting as guardian ad litem for Eric, sued various members of Robert's family. The case came to trial, during which it was learned that on several occasions Eric was molested on property owned by some of Robert's family members: Eric was molested at the Huntington Harbor home of Robert's father Edwin during a Christmas time gift exchange; Robert molested Eric for about two minutes while the two of them were apart from the others in a room where Frank and Jean's baby was sleeping. There were several other occasions when Eric was similarly⁴ molested by Robert at Edwin and Betty's house, but the record does not reveal any more details (Eric could not recall any). Eric was also molested twice on a yacht owned by Edwin and Betty that was moored near their home. Once it was in the "driver's area" of the vessel, at a time when only Robert, Eric and a friend of Eric's named Jeff were around, and Jeff was cutting a rock with a rock cutter in front of the home, unable to see what was going on. Another time it was in the engine room of the yacht at a family gathering, when most of the members were on the dock; again the molestation lasted about two minutes.

Besides being molested at the home of Edwin and Betty several times, Eric was quickly molested once at each of the homes of Robert's three brothers: There was a birthday party at Phillip's house; the molestation took place in an entertainment room while the rest of the clan were in various other rooms. Another molestation occurred at brother Eddie's house, when Robert and Eric came to pick up some "stuff Robert owned; at the time Eddie was working on his stereo. Similarly, when Robert and Eric came over to pick up some stuff from the home of brother Frank and his wife Jean that Robert had left, Robert molested Eric in the garage while Frank and Jean were in the house.

Each of the relatives had various degrees of knowledge of Robert's history. Father Edwin knew the most. He knew about the 1978 and 1984 convictions. Robert came to live with him and Betty for a short period after Robert's release from prison in 1988, and was visited by a parole officer shortly thereafter; she told Edwin that in her opinion Robert was a "pedophile." The parole officer also told Edwin that Robert had agreed to be put on a state parole rehabilitation program obligating him to report for psychiatric counseling, obtain gainful employment, not be alone with an unsupervised child, and allow for unannounced inspections of his residence. Edwin told Betty about the visit and the conversation.

Edwin also believed that his son was, as he would later testify in trial "truly repentant of his unfortunate situation back in 1984, that he was trying to adhere to his parole very, very vigorously." Indeed, Robert had voluntarily "participated" in the television special regarding convicts on parole against his father's advice because, as he told his father, "Dad, I want to do it to show we can succeed...."

The parole officer also visited brother Frank and his wife Jean when she learned that Robert was going to live with them for a while. She told them that Robert was a sex offender and reiterated the same parole conditions she told Edwin.

Brother Eddie learned sometime in 1989 or 1990 that Robert had been incarcerated on a molestation charge, and "wished to find out no more about it." By contrast, Robert's youngest brother Phillip thought that Robert had been in jail for kidnapping a child and understood he was on parole for that offense. He would later testify that he had "no knowledge that Bob was a felon."

The testimony was uncontroverted that none of the defendant family members ever told Helen about Robert's convictions.

After the evidence had been completed the trial court granted nonsuit motions made by the defendants in this appeal; Helen then filed a timely notice of appeal from the judgment in their favor. On appeal Helen now argues that the evidence was susceptible to liability based on either premises liability or general negligence theories.

Discussion

Premises Liability

The most common situation where landowners may be held liable in tort for the criminal actions of another person on their property merely because of their status as landowners entails commercial, business or otherwise public property, with the criminal action being tied in some way to either the nature of the business or the property, and in a context where the actual perpetrator of the crimes was personally unknown to the landowner. (See, e.g., Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 211 Cal. Rptr. 356, 695 P.2d 653 [attack in hospital parking lot where emergency room in high crime area drew persons under influence of drugs or alcohol]; Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 229 Cal.Rptr. 456, 723 P.2d 573 [condominium homeowners association could be held liable for rape in plaintiffs unit because of lack of exterior lighting where project had already been scene of an "`exceptional crimewave'"]; Winn v. Holmes (1956) 143 Cal.App.2d 501, 299 P.2d 994 [restaurant could be held liable for assault on one patron by another]; Wallace v. Der-Ohanian (1962) 199 Cal.App.2d 141, 18 Cal. Rptr. 892 [summer camp could be held liable for attack by unknown assailant on girl staying at camp because of lack of supervision of child]; O'Hara v. Western Seven Trees Corp. (1977) 75 Cal.App.3d 798, 142 Cal.Rptr. 487 [landlord liable for not warning tenant that a rapist had already...