Gomez v. Ticor

• Decision Date: 01 August 1983
• Citation: 145 Cal.App.3d 622,193 Cal.Rptr. 600
• Parties: Patricia GOMEZ and Claudia Gomez, By and Through her guardian ad litem, Joseph MUNOZ, Plaintiffs and Appellants, v. TICOR, Defendant and Respondent. Maria AYERBE, a minor, By and Through her guardian ad litem, Malely AYERBE, Plaintiff and Appellant, v. TICOR, Defendant and Respondent. Civ. 66914.
• Court: California Court of Appeals Court of Appeals

Page 600

193 Cal.Rptr. 600

145 Cal.App.3d 622

Patricia GOMEZ and Claudia Gomez, By and Through her guardian ad litem, Joseph MUNOZ, Plaintiffs and Appellants, v. TICOR, Defendant and Respondent.

Maria AYERBE, a minor, By and Through her guardian ad litem, Malely AYERBE, Plaintiff and Appellant, v. TICOR, Defendant and Respondent.

Civ. 66914.

Court of Appeal, Second District, Division 7, California.

Aug. 1, 1983.

Rehearing Denied Aug. 22, 1983.

Charles J. Fleishman, Cornell J. Price, Los Angeles, for plaintiffs and appellants.

Knapp, Petersen & Clarke; Reginald D. Greene, Los Angeles, for defendant and respondent.

SCHAUER, Presiding Justice.

Plaintiffs, Patricia and Claudia Gomez and Maria Ayerbe, appeal from the summary judgment granted defendant Ticor. The issues presented are the foreseeability of armed robbery in an office building's commercial parking structure and the existence of minimal precautions to protect the patrons thereof.

On January 31, 1980, Dario Gomez was in defendant's building visiting the office of his attorney. Gomez left this office at approximately 8:45 p.m. and took an elevator to the lobby. Once in the lobby, he passed the security guards' booth and then took either another elevator or a flight of stairs to defendant's garage, where he had paid to park his car. He entered the garage as an armed robbery was occurring and was shot by one of the robbers. Gomez died a few weeks later as a result of the gunshot wounds.

On May 23, 1980, Gomez' widow and child, Patricia and Claudia, filed a wrongful death action against Ticor. On November 23, 1980, Gomez' niece, Maria Ayerbe, filed a similar suit against Ticor. Both suits alleged that Ticor failed to take reasonable precautions to prevent violent attacks on patrons of its parking structure. On February 3, 1981, the cases were consolidated.

In support of their allegation of negligence, plaintiffs introduced affidavits attesting to the general unsafe character of the neighborhood, as well as evidence that fourteen thefts and four other non-violent crimes had occurred in the building in the three years prior to the attack. In addition, plaintiffs provided declarations by Ticor employees claiming that the security system monitoring the parking structure was not functional on the night of the attack. Specifically, these declarations allege (1) that the intercom connecting the parking attendant with the security booth in the lobby was habitually turned off at the lobby console, and (2) the camera monitoring the entry ramps by which the assailants entered the parking structure was not working. Finally, plaintiffs alleged that the gate to the entry ramp was commonly left open at night, in spite of requests from patrons that it be locked at 7:00 p.m. for safety reasons.

The trial court granted summary judgment for defendant. Plaintiffs appeal, contending that the trial court erred in granting summary judgment.

I Standards for Review of Summary Judgment

The summary judgment procedure, inasmuch as it denies the right of the adverse party to a trial, is drastic and should be used with caution. (Eagle Oil and Ref. Co. v. Prentice (1942) 19 Cal.2d 553, 556, 122 P.2d 264.) Summary judgment is properly granted only when the evidence in support of the moving party establishes that there is no issue of fact to be tried. (Code Civ.Proc., § 437c; Lipson v. Superior Court (1982) 31 Cal.3d 362, 374, 182 Cal.Rptr. 629, 644 P.2d 822.)

"The moving party bears the burden of furnishing supporting documents that establish that the claims of the adverse party are entirely without merit on any legal theory." (Lipson v. Superior Court, supra, 31 Cal.3d at p. 374, 182 Cal.Rptr. 629, 644 P.2d 822.) "The affidavits of the moving party are strictly construed, and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion." (Slobojan v. Western Travelers Life Ins. Co. (1969) 70 Cal.2d 432, at pp. 436-439, 74 Cal.Rptr. 895, 450 P.2d 271).

II The Determination of Duty

Liability founded upon a claim of negligence cannot exist unless a duty of care is owed by the alleged wrongdoer to the person injured or to the class of which the injured person is a member. (Rodriguez v. Bethlehem (1974) 12 Cal.3d 382, 399, 115 Cal.Rptr. 765, 525 P.2d 669; Rowland v. Christian (1968) 69 Cal.2d 108, 119, 70 Cal.Rptr. 97, 443 P.2d 561; Civ.Code, § 1714.) In California, it is well settled that an owner of land held open for business purposes may have a duty to protect visitors from the wrongful acts of third persons. (Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 121, 52 Cal.Rptr. 561, 416 P.2d 793.) Whether such a duty in fact exists is a question of law to be determined separately in each case, based on the weighing of a number of factors. (Weirum v. R.K.O. General, Inc. (1975) 15 Cal.3d 40, 45-46, 123 Cal.Rptr. 468, 539 P.2d 36.) Most important among these factors is the foreseeability of the harm. (Id. at 46, 123 Cal.Rptr. 468, 539 P.2d 36. Musgrove v. Ambrose Properties (1978) 87 Cal.App.3d 44, 52, 150 Cal.Rptr. 722.) Unlike duty, foreseeability is a question of fact, which must be decided by the jury in any case about which reasonable minds can differ. (Bigbee v. Pacific Telephone & Telegraph Co. (1983) 34 Cal.3d 49, 192 Cal.Rptr. 857, 665 P.2d 947.) Accordingly, we first decide whether plaintiffs have raised a triable issue of foreseeability.

III

A question of fact remains as to the foreseeability of the attack

Noting that no similar violent incident had occurred on its premises, defendant contends that the attack on Gomez was not foreseeable. In response, plaintiffs introduce evidence of the general "high-crime" character of the neighborhood and of specific instances of burglary, theft and vandalism in the building. This evidence, plaintiffs conclude, shows that the attack on the decedent was, in fact, foreseeable.

Standing alone, plaintiffs' evidence of the frequency of violent crimes in the neighborhood does not establish sufficient foreseeability to warrant the imposition of a duty. As the court in 7735 Hollywood Blvd. Venture v. Superior Court (1981) 116 Cal.App.3d 901, 906, 172 Cal.Rptr. 528, noted:

"Anyone can foresee that a crime may be committed anywhere at any time. But that foreseeability which the owners of rental property or the proprietors of public premises share with the public at large, does not, per se, impose a duty on such property owners or proprietors to install a 'security device' which meets a lay jury's concept of adequacy."

Plaintiffs' evidence, however, goes beyond mere allegations that the relevant neighborhood was dangerous. Uncontroverted statements presented to the trial court show that no less than sixteen acts of theft or vandalism occurred on defendant's premises in the three years prior to the shooting of Gomez. Acts of theft and vandalism thus appear to have been foreseeable in the parking structure. Accordingly, it may also have been foreseeable that a patron, returning to his or her car at an inopportune moment and interrupting such an act of theft or vandalism, would be subject to violent attack by the thief or vandal. The foreseeability of such an attack is, at the least, a matter over which reasonable minds may differ and thus becomes a question of fact to be determined by the jury. ¹ (Cf. Wingard v. Safeway Stores, Inc. (1981) 123 Cal.App.3d 37, 41-42, 176 Cal.Rptr. 320.)

Furthermore, in its very operation of a parking structure, defendant may be said to have created "an especial temptation and opportunity for criminal misconduct," thus increasing the foreseeability of the attack. (Prosser, Torts (4th ed. 1971) p. 174.) In making this observation we note the unique nature of a parking complex, which invites acts of theft and vandalism. In such structures, numerous tempting targets (car stereos, car contents, the cars themselves) are displayed for the thief; high walls, low ceilings and the absence of the cars' owners allow the thief or vandal to work in privacy and give him time to complete his task. Such circumstances increase the likelihood of criminal misconduct. In addition, the deserted, labyrinthine nature of these structures, especially at night, makes them likely places for robbers and rapists to lie in wait. Robbery, rape, and violent consequences to anyone who interrupts these crimes, may thus also be foreseeable.

The California Supreme Court has recently reiterated that " 'foreseeability 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.' " (Bigbee v. Pacific Telephone & Telegraph Co., supra, 34 Cal.3d at 57, 192 Cal.Rptr. 857, 665 P.2d 947, quoting 2 Harper & James, Law of Torts (1956) § 18.2, p. 1020.) Parking structures are relatively new fixtures in "the setting of modern life." Accordingly, we are not bound by any specific precedent in determining whether attacks on patrons of these structures are foreseeable. Rather, this determination must come as the result of a realistic appraisal of the foreseeability of crime in any such structure; such an appraisal is the jury's task.

IV

Plaintiffs' allegation of foreseeability, if confirmed by the trier of fact, will support the finding of a minimal duty of care

Foreseeability is but one element to be considered in determining whether a duty exists in a particular situation. The other factors to be balanced in determining the existence of duty were summarized as follows in Rowland v. Christian, supra, 69 Cal.2d at p. 113, 70 Cal.Rptr. 97, 443 P.2d 561:

"[T]he 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...