Sharon P. v. Arman, Ltd.

• Decision Date: 16 December 1999
• Docket Number: No. S063612.,S063612.
• Citation: 21 Cal.4th 1181,91 Cal.Rptr.2d 35,989 P.2d 121
• Court: California Supreme Court
• Parties: SHARON P., Plaintiff and Appellant, v. ARMAN, LTD., et al., Defendants and Respondents.

91 Cal.Rptr.2d 35

989 P.2d 121

21 Cal.4th 1181

SHARON P., Plaintiff and Appellant, v. ARMAN, LTD., et al., Defendants and Respondents.

No. S063612.

Supreme Court of California.

December 16, 1999.

Law Offices of Peter B. O'Brien, Peter B. O'Brien and Kelly L. Duenckel, Los Angeles, for Plaintiff and Appellant.

Early, Maslach, Price & Baukol, Larry E. Robinson, Los Angeles; Greines, Martin, Stein & Richland, Marc J. Poster and Robert A. Olson, Beverly Hills, for Defendant and Respondent Arman, Ltd.

Acker, Kowalick & Whipple, Stephen Acker, Los Angeles, Jerri Lynn Johnson and A. Gina Hogtanian, for Defendant and Respondent APCOA, Inc.

Prindle, Decker & Amaro and Gary E. Yardumian, Long Beach, as Amici Curiae on behalf of Defendant and Respondent APCOA, Inc.

Sharon L. Browne, Sacramento, and Stephen R. McCutcheon, Jr., for Pacific Legal Foundation as Amicus Curiae on behalf of Defendants and Respondents.

Susan Liebeler; Daniel J. Popeo; and Richard A. Samp, Arlington, VA, for Washington Legal Foundation and Allied Educational Foundation as Amici Curiae on behalf of Defendants and Respondents.

Fred J. Hiestand, Sacramento, for the Association for California Tort Reform as Amicus Curiae on behalf of Defendants and Respondents. Brobeck, Phleger & Harrison and Nicholas B. Waranoff, San Francisco, for International Council of Shopping Centers as Amicus Curiae on behalf of Defendants and Respondents.

Haight, Brown & Bonesteel, Roy G. Weatherup, Thomas N. Charchut, Rita Gunasekaran and Stephen M. Caine, Santa Monica, for Bank of America, N.T. & S.A., Wells Fargo Bank, N.A., National Parking Association, Parking Association of California and Association of Southern California Defense Counsel as Amici Curiae on behalf of Defendants and Respondents.

Crosby, Heafey, Roach & May, Paul D. Fogel, San Francisco, and Bradley S. De-Jean for California Contract Security Guard Association, American Protective Services, Inc., Borg-Warner Protective Services Corp., and Pinkerton's, Inc., as Amici Curiae on behalf of Defendants and Respondents.

BAXTER, J.

In Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666 (Ann M.),

we discussed the scope of a commercial landlord's duty of care and affirmed that it includes the taking of "reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures." (6 Cal.4th at p. 674,

25 Cal.Rptr.2d 137,

863 P.2d 207.)

In this case, an unknown assailant sexually assaulted plaintiff at gunpoint in a commercial parking garage owned and operated by defendants. We must decide whether and to what extent defendants' duty of care to their tenants required that they provide security in the garage, when no assaults had occurred on the premises during the 10 years preceding the attack upon plaintiff. We conclude that the occurrence of a violent third party sexual assault in the subject garage was not sufficiently foreseeable to support such a requirement. We therefore reverse the contrary judgment of the Court of Appeal and remand the matter to that court with directions to enter judgment in favor of defendants.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Sharon P. conducted an accounting business in a Los Angeles office building. She paid a monthly fee to park in an assigned space in the underground parking garage reserved for tenants of the office building.

On Thursday, April 8, 1993, at approximately 11:00 a.m., plaintiff parked in her assigned space. As she was preparing to leave her car, a masked assailant came up from behind. He held a gun to her head, forced her back into her car, and sexually assaulted her.

Plaintiff sued defendant Arman, Ltd. (Arman), the owner of the premises, and defendant Apcoa, Inc., doing business as Parking Services, Inc. (Apcoa), which provided parking services for Arman. The complaint alleged, among other things, that defendants' failure to provide adequate security for users of the parking garage resulted in the attack upon plaintiff. Plaintiff sought compensatory damages for pain and suffering, severe emotional distress, medical expenses and loss of income.

Following discovery, defendants moved for summary judgment on the basis that neither of them owed a duty to plaintiff to make the garage more secure because the attack on her was not reasonably foreseeable. The following evidence was submitted in support of and in opposition to defendants' motion.

Arman purchased the office building and parking garage in 1982. There is a bank on the ground floor of the building, with its entrance facing southwest. To the north of the building is a surface parking lot for building visitors. A driveway on the east side of the building leads to a one-level subterranean parking garage reserved for building tenants. The tenant garage is approximately 200 feet by 225 feet and contains 79 marked parking stalls. Apcoa's parking attendant operates from a booth at the northwest corner of the visitors' lot, several hundred feet from the driveway entrance to the tenant garage.

Zacaria Simantob, a general partner of Arman, was responsible for daily management of the building. He knew of no incident, from 1982 to April 8, 1993, in which anyone was physically assaulted on the premises or was confronted with a firearm in the tenant garage. He was informed that armed robberies had occurred at the bank on the ground floor but, to his knowledge, none had involved criminal activity in the garage or personal injury. The bank's internal records show it had been robbed seven times between February 1991 and January 1993, with one report of physical injury.

Records of the Los Angeles Police Department reflect that a total of 363 crimes, including 2 rapes, occurred in the 50 square blocks surrounding the office building for all of 1992. During the first quarter of 1993, just prior to plaintiffs assault, 72 crimes, but no rapes, were recorded.

Plaintiff submitted a declaration claiming that the overall condition of the tenant garage had deteriorated during the several months preceding her attack. It was not unusual for several lights to be out, which would leave the garage darkened in several places. On the day of her attack, the garage "had several darkened areas that provided vantage points from which someone lying in wait until after the morning influx of tenants could observe a lone woman arriving in her car as easy prey." Several darkened storage areas provided a place to hide. Plaintiff smelled urine at various times as she walked to and from the garage. She never saw defendants' employees monitor or inspect the garage, and in her view, the garage was not clean, well lit, safe or secure. After the attack, she learned that the security camera in the garage had not been working for several months.¹

Defendants submitted a declaration from a private security consultant, retired Pasadena Police Chief Robert H. McGowan. McGowan inspected the tenant garage 17 months after plaintiffs assault and found the lighting "sufficient to clearly view from one side of the garage to the other in any direction." Although he conceded in his deposition that underground parking facilities are potential places for criminals to lie in wait, he believed that posting a security guard would have been an unreasonable burden on defendants because of the garage's small size and its minimal or no criminal activity, the relatively unobstructed view throughout the garage, and the presence of drivers entering and leaving. He also thought it would have been unreasonable to require operation of a closed circuit television and to require someone to monitor and investigate anything that looked suspicious. In McGowan's view, the bank robberies on the ground floor did not indicate any greater likelihood of a sexual assault crime occurring in the underground garage because the bank is located on the other end of the structure from the garage entrance and the "behavior" of a bank robber is to immediately escape the area, not to lie in wait for a victim.

The trial court granted the motions based upon the foreseeability analysis articulated in Ann M., supra,6 Cal.4th 666,25 Cal.Rptr.2d 137,863 P.2d 207. Although noting plaintiffs evidence of other crimes occurring in the surrounding area, the court found it significant that there was no evidence of crimes occurring within the parking garage. Judgment was entered in favor of defendants.

The Court of Appeal reversed by a divided vote. The majority determined that Ann M. was not controlling because commercial parking structures such as the one here are "inherently dangerous" and, by their very nature, facilitate the commission of crime and increase its likelihood. The majority concluded that, notwithstanding the absence of prior incidents of sexual assault in the tenant garage, criminal assaults on patrons of the garage were highly foreseeable as a matter of law given the inherently dangerous nature of commercial underground garages, the increasing number of criminal assaults occurring in such structures generally, the physical conditions existing at this particular garage, and the seven serious felonies (robberies) occurring at the ground floor bank during the two-year period preceding plaintiffs assault. After determining that the assault was foreseeable, the majority analyzed the policy considerations set forth in Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 and concluded that defendants owed a duty of care to plaintiff to provide "reasonable" security in the tenant garage, which "might or might not include security guards." The matter was remanded to allow a jury to determine the issues of breach and causation based on the totality of the circumstances presented in the case.

The dissent criticized the majority for finding it foreseeable as a matter of law that criminal conduct will always occur in commercial underground parking structures. In...