O'Hara v. Western Seven Trees Corp.

• Decision Date: 13 December 1977
• Citation: 142 Cal.Rptr. 487,75 Cal.App.3d 798
• Court: California Court of Appeals Court of Appeals
• Parties: Kim Elizabeth O'HARA, Plaintiff and Appellant, v. WESTERN SEVEN TREES CORPORATION INTERCOAST MANAGEMENT et al., Defendants and Respondents. Civ. 40200.

Page 487

142 Cal.Rptr. 487

75 Cal.App.3d 798

Kim Elizabeth O'HARA, Plaintiff and Appellant, v. WESTERN SEVEN TREES CORPORATION INTERCOAST MANAGEMENT et al., Defendants and Respondents.

Civ. 40200.

Court of Appeal, First District, Division 4, California.

Dec. 13, 1977.

Hearing Denied Feb. 9, 1978.

Gary C. Smith, Roger Sullivan, San Jose, for plaintiff and appellant.

Owen, Melbye & Rohlff, Redwood City, for defendants and respondents.

Abramson & Bianco, Barbara J. R. Jones, San Francisco, for amicus curiae in support of the contentions of plaintiff and appellant.

CHRISTIAN, Associate Justice.

Kim Elizabeth O'Hara appeals from a judgment of dismissal which was rendered after the court sustained a demurrer to her complaint for damages. Appellant seeks recovery from Western Seven Trees Corporation and others to compensate her for being raped. The complaint alleged two causes of action. The first claimed that respondents, the owners and operators of the apartment complex where appellant resided, were negligent in failing to provide "adequate security," in misrepresenting the security measures in effect on the premises, in concealing information concerning a man who had raped several female tenants, and in failing to warn plaintiff of the danger of rape. In the second cause of action, for deceit, it was alleged that respondents knowingly misrepresented the safety and security of the complex with the intent to induce appellant to rent an apartment. Punitive damages were sought on the basis that the alleged misrepresentations were fraudulent.

A demurrer having been sustained, the following factual allegations, drawn from the complaint, must be deemed to be true. (Stanson v. Brown (1975) 49 Cal.App.3d 812, 122 Cal.Rptr. 862.) Before April 4, 1975, a Caucasian male had raped several tenants of the Seven Trees Apartments in San Jose. Respondents knew of the crimes, were aware of the conditions indicating a likelihood that the rapist would repeat his attacks, and had been supplied by the local police with composite drawings of the suspect and a general description of his modus operandi. On April 4, 1975, respondents assured appellant, a prospective tenant, that the premises were safe and were patrolled at all times by professional guards. Respondents knew these statements were false and disclosed no information concerning the assaults. Appellant, believing and relying upon respondents' representations, was induced to rent an apartment in the complex.

On July 16, 1975, appellant was raped in her apartment; she later identified her assailant as the same person who had been depicted in the composite drawings which had earlier been supplied to respondents and were still in their possession.

Generally, a person is liable for injuries caused by his failure to exercise reasonable care under the circumstances. (Civ.Code, § 1714; Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561.) Traditionally, a landlord had no duty to protect his tenants from the criminal acts of others, but an innkeeper was under a duty to protect his guests. (Totten v. More Oakland Residential Housing, Inc. (1976) 63 Cal.App.3d 538, 543, 134 Cal.Rptr. 29; Kline v. 1500 Massachusetts Avenue Apartment Corp. (1970) 141 U.S.App.D.C. 370, 375, 439 F.2d 477, 482.) But in recent years, the landlord-tenant relationship, at least in the urban, residential context, has given rise to liability under circumstances where landlords have failed to take reasonable steps to protect tenants from criminal activity. (See, e. g., Kline v. 1500 Massachusetts Avenue Corp., supra, 141 U.S.App.D.C. 370, 439 F.2d 477; Samson v. Saginaw Pro Bldg., Inc. (1975) 393 Mich. 393, 224 N.W.2d 843; Johnston v. Harris (1972) 387 Mich. 569, 198 N.W.2d 409; see Annot. (1972) 43 A.L.R.3d 331.) It has been held that since only the landlord is in the position to secure common areas, he has a duty to protect against types of crimes of which he has notice and which are likely to recur if the common areas are not secure. Liability does not make the landlord an insurer of the tenants' safety; the duty is merely to exercise reasonable care. (Totten v. More Oakland Residential Housing, Inc., supra, 63 Cal.App.3d at p. 542, 134 Cal.Rptr. 29; Kline v. 1500 Massachusetts Avenue Apartment Corp., supra, 141 U.S.App.D.C. at pp. 376, 377, 439 F.2d at pp. 483, 484.)

No California decision has been found, holding a landlord liable for negligence in failing to protect against criminal conduct. In Totten v. More Oakland Residential Housing, Inc., supra, 63 Cal.App.3d 538, 134 Cal.Rptr. 29, the issue was "whether a landlord may be held liable for injuries caused to a stranger, who happens to be on the premises, by the criminal attack of other strangers." (Id., p. 541, 134 Cal.Rptr. p. 32.) The plaintiff there, while waiting in a laundry room, was injured by pistol shots fired during a fight between two other non-tenants. No similar incident had occurred before; the crime was an unpredictable, sudden outburst. The court held that to impose liability under such facts would be unfair.

The present case is factually closer to Kline v. 1500 Massachusetts Avenue Apartment Corp. than to Totten v. More Oakland Residential Housing, Inc. Appellant was not the victim of a sudden unexpected outburst. Instead, she fell prey to the same type of criminal conduct which had repeatedly been inflicted upon other tenants by the same assailant, a person whose appearance and modus operandi were known to respondents. Not only did respondents allegedly fail to provide "adequate security," they did not warn appellant about the suspected assailant and they actually misrepresented the security measures in force. Even without secure premises, knowledge of the suspect's mode of operation and a view of the composite drawings could have been useful to appellant. If she had known of the danger, she might not have rented an apartment in the complex, or she could have taken precautions based on a knowledge of the suspect's appearance and mode of operation.

Respondents contend that the fact the assault took place inside appellant's apartment should absolve them, since she, not they, had control over that area. This fact is not determinative. Failure to take reasonable precautions to safeguard the common areas under respondents' control could have contributed substantially, as alleged, to appellant's injuries. (See Kline v. 1500 Massachusetts Avenue Apartment Corp., supra, 141 U.S.App.D.C. 370, 373, 439 F.2d 477, 480.) Also, respondents' liability for failure to warn is not founded upon their control over the common areas but upon their position of superior knowledge and upon their alleged misrepresentations.

An analysis of the factors set forth in Rowland v. Christian, supra, 69 Cal.2d 108, 113, 70 Cal.Rptr. 97, 443 P.2d 561, shows that there is potential liability here. The existence of the most important factor, foreseeability, was alleged. Respondents allegedly knew of the past assaults and of conditions making future attacks likely. By not acting affirmatively to protect appellant, they increased the likelihood that she would also be a victim. This failure to act, either by warning appellant or by providing adequate security, allegedly created a risk of injury to appellant.

Respondents' possible liability is also suggested by the Restatement Second of Torts: "An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of . . . a third person which is intended to cause harm, even though such conduct is criminal." (§ 302B.) Respondents allegedly knew of the conditions making sexual assaults likely. The risk was unreasonable because respondents could have decreased the risk with a simple disclosure of information. The criminal act of a third person is a superseding cause unless "the actor at the time of his negligent conduct realized or should have realized the likelihood" that the conduct created an opportunity for the crime's commission and that the "third person might avail himself of the opportunity . . .." (§ 448.) "If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, . . . or criminal does not prevent the actor from being liable for harm caused thereby." (§ 449.) The risk of sexual assault by appellant's attacker was the hazard which made respondents' conduct negligent. It was error to sustain the demurrer to the first cause of action.

Appellant's second cause of...