Nola M. v. University of Southern California

• Citation: 20 Cal.Rptr.2d 97,16 Cal.App.4th 421
• Decision Date: 09 June 1993
• Docket Number: No. B059833,B059833
• Parties: , 83 Ed. Law Rep. 316 NOLA M., Plaintiff and Respondent, v. UNIVERSITY OF SOUTHERN CALIFORNIA, Defendant and Appellant.
• Court: California Court of Appeals

Page 97

20 Cal.Rptr.2d 97

16 Cal.App.4th 421, 83 Ed. Law Rep. 316

NOLA M., Plaintiff and Respondent, v. UNIVERSITY OF SOUTHERN CALIFORNIA, Defendant and Appellant.

No. B059833.

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

June 9, 1993.

Review Denied Sept. 23, 1993.

Christian E. Markey, Jr., Mireille F. Gotsis, J. Andrew Coombs, Los Angeles, Horvitz & Levy, Frederic D. Cohen and Douglas G. Benedon, Encino, for defendant and appellant.

Mandell, Lewis & Goldberg, Michael L. Goldberg, David M. Lewis, McLean, VA, Fletcher & Roit, Natasha Roit, Los Angeles, and Eric Lagin, Beverly Hills, for plaintiff and respondent.

MIRIAM A. VOGEL, Associate Justice.

Nola M. was attacked and raped on the campus of the University of Southern California. She sued USC and won, on a theory that the University was negligent in failing to deter the attack. At trial, Nola's expert criticized USC's security measures and found them wanting but he did not, and on the facts of this case could not, say that two or ten or twenty more guards or other security measures could have prevented Nola's injuries. Since abstract negligence unconnected to an injury will not support liability, we reverse.

FACTS

Nola drove onto USC's main campus early one evening, intending to drop off a deposit at the USC Federal Credit Union. She parked her car across the street from the Credit Union building, walked down the street and cut across a lawn to the sidewalk in front of the Human Resources Center, just to the east of the Credit Union building. As Nola walked along the front of the Human Resources Center, she was grabbed from behind by an unknown assailant, stabbed, beaten, pushed to the ground, dragged to some bushes in front of the Human Resources Center and raped. About 30 to 45 minutes later, Nola heard a car drive by and screamed. Her assailant fled, taking her purse. The car stopped and two unidentified men got out. One tried (without success) to catch the assailant and the other took Nola to a campus security station.

Nola sued USC. At trial, the following evidence was presented (we have omitted the evidence relevant only to damage issues). There were somewhere between 63 and 78 on-campus violent crimes during the two or three years immediately preceding this attack (although there were no violent crimes of any kind in the immediate area of the Credit Union). Nevertheless, during the three years preceding the attack, the on-campus violent "crimes against persons" rate per thousand people was less than one percent--compared to a thirty percent rate in the off-campus area surrounding USC. USC's security department includes highly trained armed security officers and unarmed community service officers. Each 24-hour period is divided into three shifts with a usual complement of five officers (one supervisor and four armed officers) working each shift. At the beginning of each shift, there is a briefing to review daily incident reports and previous watch summaries, after which each officer patrols an assigned area.

On the evening of this assault (January 2, 1989), one supervisor and eight officers worked the 3:00 p.m. to 11:00 p.m. shift (the attack occurred around 7:30 p.m.) ¹ and the eight officers were responsible for patrolling four previously established areas. One officer was assigned to area A, where the Credit Union is located Nola's expert (an independent security consultant) sharply criticized USC's security efforts. He found fault with the manner in which the security officers were permitted to exercise discretion about where to patrol; suggested the security department should have used a "pin map" to mark crime trends and patterns or "a fairly sophisticated computer system;" said there was insufficient communication both up and down the chain of command; criticized the use of patrol cars and said there should have been foot patrols to ensure coverage of all footpaths; and opined that, given the size of the area to be policed, there should have been more security officers.

and one officer was assigned to area B, the area immediately adjacent to the Credit Union. Two officers were assigned to area C, an off-campus area, and two were assigned to area E, the parking structures. The five officers assigned to areas B, C and E were instructed to also patrol area A. Area D, an "umbrella" beat providing additional patrols for areas A, B and C, was covered by the remaining two officers. Four cars were used by the eight officers to patrol the campus and adjacent area (slightly more than one-quarter of a square mile). By comparison, the Los Angeles Police Department uses seven to nine cars to patrol the ten and one-half square mile area surrounding USC's campus.

He also testified that it is important for an area around a financial institution to be clear and unobstructed so that a person approaching the building can determine whether anyone is loitering nearby and so that security officers on patrol do not have their observations obscured. In the expert's opinion, four-foot-high foliage in front of the Human Resources Center posed a security risk and the combination of inadequate lighting and dense, high foliage compounded the problem. ² Nola's expert did not testify that compliance with his personal standards would have prevented the attack on Nola. USC's expert (who is also an independent security consultant) disagreed with just about everything Nola's expert had to say.

In a bifurcated trial, the jury returned its verdict in favor of Nola, awarding her $800,000 net for compensatory damages and $988,888 in punitive damages. On USC's motion, the trial court agreed to grant a new trial unless Nola accepted reduced compensatory damages of $300,000 net. Nola acquiesced and USC appeals from the judgment ($1,288,888) thereafter entered.

DISCUSSION

USC contends there is no proof of any causal connection between its negligence and Nola's injury. We agree (and we therefore do not reach USC's other claims of error).

I.

According to the Restatement Second of Torts, an "actor is liable for an invasion of an interest of another, if: (a) the interest invaded is protected against unintentional invasion, and (b) the conduct of the actor is negligent with respect to the other, or a class of persons within which he is included, and (c) the actor's conduct is a legal cause of the invasion...." (Rest.2d Torts, § 281.) In more traditional terms, this means there has to be (a) a duty and (b) a breach of that duty which (c) is the legal cause of the other's injury. (Rest.2d Torts, § 281, coms. on clauses (a), (b) and (c).)

A. Duty

There are a number of situations in the law of negligence where a defendant, including a landowner, may be liable for providing or not removing the opportunity for another to do harm. (Constance B. v. State of California (1986) 178 Cal.App.3d 200, 205, 223 Cal.Rptr. 645.) If the place or character of the landowner's business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either Duty is a question of law to be determined on a case-by-case basis. (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36.) If the court finds the defendant was under a duty to protect the plaintiff, the trier of fact must then decide whether the defendant's protective measures were reasonable under the circumstances--that is, whether there was a breach of the defendant's duty of care. (Isaacs v. Huntington Memorial Hospital, supra, 38 Cal.3d at p. 131, 211 Cal.Rptr. 356, 695 P.2d 653.) If the jury determines there was a breach, there still remains the question whether that breach was the cause of the plaintiff's injuries. Although USC continues to assert that it was not negligent (that it did not breach any duty it owed to Nola), it does not dispute that a duty was owed. To progress directly to causation, the critical issue in this case, we simply assume the evidence is sufficient to support breach. ³

generally or at some particular time, he may be under a duty to take precautions against it and to use such means of protection as are available to afford reasonable protection. (Rest.2d Torts, § 344, com. d; Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 123-124, 211 Cal.Rptr. 356, 695 P.2d 653; Civ.Code, § 1714.)

B. Causation

Under section 430 of the Restatement Second of Torts, "[i]n order that a negligent actor shall be liable for another's harm, it is necessary not only that the actor's conduct be negligent toward the other, but also that the negligence of the actor be a legal cause of the other's harm." "Legal cause" exists if the actor's conduct is a "substantial factor" in bringing about the harm and there is no rule of law relieving the actor from liability. (Rest.2d Torts, § 431; Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052, 1 Cal.Rptr.2d 913, 819 P.2d 872.)

In the context of this case, the causation analysis is unaffected by the fact that the assailant's conduct was criminal and not merely negligent. Stated in traditional terms, the assailant's attack is not a superseding cause and it does not relieve USC of liability. As our Supreme Court has explained, if the likelihood that a third person may act in a particular manner is "one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby." (Rest.2d Torts, § 449; Richardson v. Ham (1955) 44 Cal.2d 772, 777, 285 P.2d 269; Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 58, 192 Cal.Rptr. 857, 665 P.2d 947.) ⁴

The question, therefore, is whether there is evidence supporting the jury's finding that USC's negligence was the legal cause of Nola's injuries. (Constance B. v. State of California, supra, 178 Cal.App.3d at p. 207, 223 Cal.Rptr. 645 [given a breach of duty by the defendant, the decision whether that...