Totten v. More Oakland Residential Housing, Inc.

• Decision Date: 10 November 1976
• Citation: 134 Cal.Rptr. 29,63 Cal.App.3d 538
• Court: California Court of Appeals Court of Appeals
• Parties: Carolyn Jean TOTTEN, a minor, by Julia Totten her guardian ad litem, and Julia Totten Individually, Plaintiffs and Appellants, v. MORE OAKLAND RESIDENTIAL HOUSING, INC., etc. Defendant and Respondent. Civ. 38154.

Page 29

134 Cal.Rptr. 29

63 Cal.App.3d 538

Carolyn Jean TOTTEN, a minor, by Julia Totten her guardian ad litem, and Julia Totten Individually, Plaintiffs and Appellants, v. MORE OAKLAND RESIDENTIAL HOUSING, INC., etc. Defendant and Respondent.

Civ. 38154.

Court of Appeal, First District, Division 2, California.

Nov. 10, 1976.

Hearing Denied Jan. 5, 1977.

Warwick, Stahl, Warwick & Gardner, Oakland, for plaintiffs-appellants.

Bennett, Van De Poel, Campbell & Strickland, Oakland, for defendant-respondent.

KANE, Associate Justice.

This is an appeal from the trial court's judgment dismissing appellants' action after respondent's demurrer to the second amended complaint was sustained without leave to amend.

Respondent, More Oakland Residential Housing, Inc., a nonprofit corporation, owned and operated high rise apartment houses in Oakland, California. The purpose of the apartment complex was to replace slum dwellings in the ghetto area of the city and to provide inexpensive housing for low income people. The apartment house where the injury in dispute occurred was a part of the complex.

The events giving rise to the litigation took place on the night of December 22, 1973. At that time appellant Carolyn Jean Totten ('Carolyn'), a minor, was visiting her boy friend, a tenant of the apartment house. While she was sitting in the laundry room waiting for her boy friend, a fight erupted between John Chivars and Anthony Ottrix, two strangers. In the course of the fight Chivars chased Ottrix into the laundry room and started firing a pistol. Several of the shots went astray and hit Carolyn.

In their second amended complaint, appellants alleged that respondent owed a duty to protect Carolyn from the criminal conduct of third persons; that respondent breached this duty by failing to provide proper guard service or other supervision of the premises; and that as a proximate result of said failure Carolyn incurred severe personal injuries.

The question presented on appeal is one of first impression. Broadly defined it poses the issue of 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. A careful analysis of common law principles relating to the tort liability of the possessor of land as well as the policy considerations laid down in Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 and other cases lead us to the conclusion that in the situation here present the imposition of such a duty would be entirely unwarranted. In the absence of duty, a vital element of actionable negligence (Richards v. Stanley (1954) 43 Cal.2d 60, 63, 271 P.2d 23; Nevarez v. Thriftimart, Inc. (1970) 7 Cal.App.3d 799, 803, 87 Cal.Rptr. 50), appellants' complaint failed to state a cause of action and the demurrer thereto was properly sustained by the trial court.

As a basic general principle, in the absence of a special relationship or circumstance, a private person has no duty to protect another from a criminal attack by a third person (Richards v. Stanley, supra, 43 Cal.2d at p. 65, 271 P.2d 23; Kline v. 1500 Massachusetts Avenue Apartment Corp. (1970)141 U.S.App.D.C. 370, 439 F.2d 477, 481; 4 Witkin, Summary of Cal. Law (1974 ed.), § 554, p. 2821; Rest.2d Torts, ¹ §§ 314, 315; ² see also 10 A.L.R.3d 619, 626). A special relationship giving rise to such duty does, however, exist, for example, between common carrier-passenger, innkeeper-guest, landowner-invitee, custodian-ward (§ 314A). The general body of case law dealing with the special relationship of landowner and invitee involves principally two types of cases: one, where a Patron has been injured in a business establishment by the criminal activity of a third person (i.e., Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 52 Cal.Rptr. 561, 416 P.2d 793; Edwards v. Hollywood Canteen (1946) 27 Cal.2d 802, 167 P.2d 729; Slater v. Alpha Beta Acme Markets, Inc. (1975) 44 Cal.App.3d 274, 118 Cal.Rptr. 561; Campodonico v. State Auto Parks, Inc. (1970) 10 Cal.App.3d 803, 89 Cal.Rptr. 270; Young v. Desert View Management Corp. (1969) 275 Cal.App.2d 294, 79 Cal.Rptr. 848); two, where a Tenant or his employee has been injured by the criminal conduct of a third person (i.e., Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 118 Cal.Rptr. 741; Kendall v. Gore Properties (1956) 98 U.S.App.D.C. 378, 236 F.2d 673; Kline v. 1500 Massachusetts Avenue Apartment Corp., supra; Samson v. Saginaw Professional Building, Inc. (1975) 393 Mich. 393, 224 N.W.2d 843). The proposition that the proprietor may be held liable only in a special circumstance finds support also in section 344, which provides in pertinent part that 'A possessor of land who holds it Open to the public for entry for his business purposes is subject to liability to members of the public While they are upon the land for such a purpose, for physical harm caused by accidental, negligent, or intentionally harmful acts of third persons . . .' (emphasis added).

The cases holding the proprietor liable for the wrongful acts of third persons emphasize, however, that the proprietor is not an insurer of the safety of his invitees and His duty to take affirmative action to control the wrongful acts of third persons Arises only where the possessor has reasonable cause to anticipate such acts and the probability of injury resulting therefrom and fails to take affirmative steps to control the wrongful conduct (Edwards v. Hollywood Canteen, supra, 27 Cal.2d at pp. 809--810, 167 P.2d 729; Nevarez v. Thriftimart, Inc., supra, 7 Cal.App.3d at p. 804, 87 Cal.Rptr. 50; Young v. Desert View Management Corp., supra, 275 Cal.App.2d at p. 298, 79 Cal.Rptr. 848). As comment (e) to section 314A states: 'The duty in each case is only one to exercise reasonable care under the circumstances. The defendant is not liable where he neither knows nor should know of the unreasonable risk, or of the illness or injury. He is not required to take precautions against a sudden attack from a third person which he has no reason to anticipate . . .' (emphasis added).

It is beyond dispute that under the traditional rules set out above respondent was under no duty to protect Carolyn from the sudden attack of the two intruders. First of all, it is unquestionable that Carolyn was not an invitee within the meaning of the law (§ 332). ³ She did not qualify as a public invitee for the simple reason that the apartment house in question was not open to the public. Nor was she a business visitor entering the premises upon the invitation of respondent in connection with business dealings. In actuality, Carolyn was simply a social guest of one of the tenants, a licensee who entered the premises upon the invitation of the tenant, not respondent landlord, and was allowed to remain there by virtue of respondent's implied consent (cf. § 330). It is, of course, well settled that under the traditional principles of common law the duty of the landlord to protect the occupier of the land from the wrongful acts of third persons was strictly limited to invitees and did not include either licensees or trespassers.

Secondly, in the instant case a duty cannot be imposed for the further reason that appellants failed to allege sufficient facts that respondent could reasonably foresee or anticipate the criminal conduct in question and the probability of injury resulting therefrom. While there are general allegations in the complaint that the apartment building was located in a high-crime area where violent crimes repeatedly occurred; that respondent had either actual or constructive knowledge thereof; and that there were numerous complaints about violent crimes which had taken place on the premises prior to the incident in question, appellants conspicuously failed to aver either the specific nature of the prior crimes or respondent's knowledge thereof. It has been repeatedly held that in the absence of prior similar incidents, the landlord is not bound to anticipate the criminal activities of third persons, especially where, as here, the wrongdoers were complete strangers to both the landlord and the victim, and where the fight and the shooting incident leading to the injury came about precipitously (Rosensteil v. Lisdas (1969) 253 Or. 625, 456 P.2d 61; see also New York City Housing Authority v. Jackson (1968) 58 Misc.2d 847, 296 N.Y.S.2d 237; Hall v. Fraknoi (1972) 69 Misc.2d 470, 330 N.Y.S.2d 637). Viewed most favorably, appellants' complaint alleges no more than that the commission of violent crimes was foreseeable in the apartment house and/or its vicinity. This general allegation, however, does not support the imposition of a duty upon the landlord. As said in Goldberg v. Housing Auth. of Newark (1962) 38 N.J. 578, 186 A.2d 291, 293: 'Everyone can foresee the commission of crime virtually anywhere and at any time. If foreseeability itself gave rise to a duty to provide 'police' protection for others, every residential curtilage, every shop, every store, every manufacturing plant would have to be patrolled by the private arms of the owner. And since hijacking and attack upon occupants of motor vehicles are also foreseeable, it would be the duty of every motorist to provide armed protection for his passengers and the property of others. Of course, none of this is at all palatable.' This view is in conformity with Rowland v. Christian, supra, where the foreseeability of harm was designated as only One of the factors to be considered in the creation of a duty of care.

Appellants vigorously contend, however, that the differences between invitees, licensees and trespassers have been abolished in California, and that the new guidelines laid down in Rowland call for the imposition of a duty upon respondent in this case. We disagree.

It is conceded that in Rowland the Supreme Court held that the proper test to be applied to the liability of the possessor of land is whether...