Penner v. Falk

• Decision Date: 28 March 1984
• Citation: 200 Cal.Rptr. 661,153 Cal.App.3d 858
• Court: California Court of Appeals Court of Appeals
• Parties: Scott PENNER, Plaintiff and Appellant, v. Joe FALK, et al., Defendants and Respondents. Civ. 69318.

Page 661

200 Cal.Rptr. 661

153 Cal.App.3d 858

Scott PENNER, Plaintiff and Appellant, v. Joe FALK, et al., Defendants and Respondents.

Civ. 69318.

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

March 28, 1984.

Fogel, Rothschild, Feldman & Ostrov, and J. Clark Aristei and Allan J. Favish, Los Angeles, for plaintiff and appellant.

Grace, Neumeyer & Otto, Inc., and Ilse A. Harle, Los Angeles, for defendants and respondents.

AMERIAN, Associate Justice.

Scott Penner (herein appellant) appeals from a judgment (order of dismissal) entered February 23, 1983, after demurrer to his third amended complaint was sustained without leave to amend.

FACTS ¹

In August 1980, appellant was a tenant in an apartment building. The apartment building was "owned, operated, managed, controlled, maintained, equipped, inspected, illuminated, supervised, guarded, [and] provided security for" by respondents.

On August 5, 1980, while he was on the premises, appellant "was accosted and assaulted by two (2) non-tenant intruders who were waiting in the common hallway of said premises." As a result of the robbery, burglary, false imprisonment, batteries, assaults and physical harm, appellant sustained injuries. In the first cause of action appellant sought both compensatory and punitive damages on a negligence theory. In the second cause of action for breach of warranty of habitability, appellant sought only compensatory damages.

The third amended complaint contained the following allegations:

"7. At all times herein mentioned, the defendants, and each of them, owed a duty to plaintiff with respect to said apartment, to provide, among other things, adequate and secure entrances, gates, doors and locks; adequate lighting and illumination; notice, warning, supervision, guarding, security provisions, management, control, maintenance, operation, equipment, inspection and to maintain security, and otherwise provide plaintiff with a safe place to live.

"8. On or about August 5, 1980, plaintiff was residing in defendants' apartment building, as referred to above. Plaintiff is informed and believes and thereon alleges that at said time and place, as a result of defendants' affirmative actions and/or failures to act, said apartment building, the approaches, entrances, and common areas thereto including the gates, doors, windows, locks, interior hallway illumination, hallways, vegetation and surrounding walkways were unattended, inadequate and in disrepair, and unsecure, and among other things, that defendants, and each of them, negligently owned, managed, controlled, maintained, operated, equipped, inspected, illuminated, noticed, warned, supervised, guarded, and secured said premises, and that the defendants, and each of them, by their affirmative actions and/or failures to act negligently failed to provide adequate security and/or warnings with respect to said apartments.

"9. Plaintiff is informed and believes and thereon alleges that on or about August 5, 1980, the defendants, and each of them, and their officers, directors, managing agents, and/or partners, well knew or, in the exercise of reasonable care, should have known that as a result of their affirmative actions and/or failures to act that their said apartment building, the approaches, entrances, and common areas thereto including the gates, doors, windows, locks, interior hallway illumination, hallways, vegetation and walkways were so negligently owned, managed, controlled, maintained, operated, equipped, inspected, illuminated, noticed, warned, supervised, guarded and otherwise so provided with security and/or notices and/or warnings or the lack thereof that the defendants, and each of them, knew and/or reasonably foresaw that they were not providing a safe apartment building; that there was the reasonably foreseeable risk that tenants of said apartments and their guests would "(a) That Apartment No. 2 and the approaches, entrances, and common areas, including among other things, interior hallway illumination, hallways, doors, windows, vegetation, gates and locks thereto, were so constructed as to permit access by criminally inclined persons; and tenants of said premises, seeking to protect themselves from crime, had requested that defendants inspect, repair, place and/or replace the doors, gates, locks, entrances and interior hallway illumination to said apartment building, and provide adequate security measures, and defendants failed and/or refused to do so;

become the victims of crimes on said premises, including criminal attacks; that it was reasonably foreseeable to anticipate future crimes against the tenants of said premises and their guests while on the premises; and that plaintiff would be exposed to the danger of a criminal attack upon his person and property on August 5, 1980, when he was a resident of an apartment designated as Apartment No. 2; that said crimes were encouraged, invited, and/or caused by the affirmative actions and/or failures to act of defendants, and each of them, with respect to their negligent ownership, management, control, maintenance, operation, equipping, inspection, illumination, supervision, and guarding of said apartment building, the supervision, and guarding of said apartment building, [sic] the approaches and entrances thereto, including the gates, doors, windows, locks, interior hallway illumination, hallways, vegetation and walkways. Plaintiff is informed and believes that the defendants, and each of them, had knowledge and/or reason to foresee that such conduct was foreseeable and likely to occur in the future, based upon a variety of statistics, reports, maps, charts, records and other information including, but not limited to their awareness of the following facts, among other things, all of which plaintiff alleges to be true, and all of which facts alleged were known or should have been known to defendants, and each of them, on and within two years prior to August 5, 1980:

"(b) That the apartment building and the approaches, entrances, and common areas, including, among other things, the doors, windows, gates, interior hallway illumination, hallways, vegetation, gates and locks thereto, and security measures were lacking, inadequate and so constructed and maintained as to invite and permit access by criminally inclined persons, and tenants of said premises, seeking to protect themselves from crime, requested that defendants inspect, repair, place and/or replace said doors, gates, locks, interior hallway illumination, security measures and the entrances to said premises and defendants refused and/or failed to do so;

"(c) That the apartment building, the approaches, entrances, and common areas thereto, including the hallways, interior hallway illumination, walkways and sidewalks, illumination, and the vegetation thereabouts, provided convenient hiding places for criminally inclined persons to gain access without other tenants' knowledge, and to secrete themselves and to lie in wait, and the interior lights selected and used by defendants provided inadequate illumination and were periodically out or inoperative and were not replaced for unreasonable periods of time;

"(d) That within two years before August 5, 1980, various crimes had been committed on the premises, in the neighborhood, in said apartments, and in the approaches, entrances, and common areas thereof, including the garages, laundry room, hallways, walkways, and gateways, including trespass, robbery, burglary, physical assault, battery, rape, murder, prostitution, vandalism and other crimes against persons and property. Notwithstanding defendants' awareness thereof, tenants had requested that defendants repair, place or replace a door or gate for the entrances to said premises and defendants refused and/or failed to do so; tenants had complained to defendants that unauthorized persons were often in the building and defendants failed or refused to exclude said persons or prevent their access, repeated acts of burglary and auto vandalism had occurred in the apartment units and the "(e) Because defendants were aware of (1) crimes in the apartment building and apartments thereof which were caused, invited, encouraged, and/or permitted by the conditions of the premises, (2) tenant reports of crime on the premises, (3) tenant complaints regarding the unsecure and inadequate conditions on the premises which permitted free access to the premises and said criminal activity, (4) express tenant requests for and the obvious need to repair, change, and/or take corrective measures with regard to the inadequate security conditions of the premises, including free access to the premises, and (5) the nature of the neighborhood itself, including the occurrence of criminal activity therein; defendants knew or, in the exercise of reasonable care, should have known that the conditions on the premises made it foreseeable that criminals and intruders would gain access to and commit crimes on said premises, attack tenants, and/or future crime would occur on the premises exposing tenants to the forseeable unreasonable risks of harm which constituted a threat to the safety of any and all persons on or using said premises, thus constituting special circumstances giving rise to a duty of care on the part of Defendants, and each of them, to take appropriate security measures for the protection of their business invitees and tenants, including plaintiff. Defendants retained the right, power and authority to make the changes, repairs, and/or corrective measures necessary to preclude criminals and/or intruders from the premises and the apartments thereof; tenants did not have the right, power, and/or authority to do so. Notwithstanding this defendants failed to disclose, failed to repair, failed to remedy, change or initiate any corrective measures which they knew, and/or had reason to know if not done, the premises would continue to cause, encourage, permit, and invite, further...