iLaw Dictionary			USAConstitution Law
						California			BankruptcyCode.US
						Law Dictionary			iBusiness Center.US
						Negligence-Elements			United States Law.US

A Legal and Business Portal-Home

iLaw Dictionary
California
Law Dictionary
Negligence-Elements

Negligence-Elements

 A. The Legal Issue of Duty

            Plaintiffs assert Owners were negligent by not replacing the missing windowpane in the front door of Apartment 6, which was a substantial cause of decedent's death.  Owners prevailed on summary judgment by convincing the trial judge that, as a matter of law under the facts of this case, Owners owed plaintiffs no duty that was breached.  We review the record de novo to determine whether Owners conclusively negated this necessary element of plaintiffs' case.  (Ann M., supra, 6 Cal.4th at pp. 673-674.)

            The existence of duty is a question of law to be decided by the court (see, e.g., Sharon P., supra, 21 Cal.4th at p. 1188), and the courts have repeatedly declared the existence of a duty by landowners to maintain property in their possession and control in a reasonably safe condition.  (See, e.g., Rowland v. Christian (1968) 69 Cal.2d 108, 119 (Rowland).)  However, acknowledgment of the broad proposition that landowners have a duty to exercise reasonable care to maintain their property in a safe condition provides scant guidance to a court that must determine the existence of the landlord's duty in a particular case.  Because the question of the legal duty of a landlord has perplexed many courts and generated an amorphous body of law, to answer the question presented in this case we preface our analysis with a brief consideration of the question of duty in the broader context of tort law.

            When a defendant has not intended to injure a plaintiff, and the defendant is not deemed for policy reasons to be strictly liable for a plaintiff's injuries regardless of fault, a defendant's liability for a plaintiff's injuries is determined under negligence principles.  (Prosser & Keeton, Torts (5th ed. 1984) § 7, pp. 31-32.)  The elements of negligence are: (1) defendant's obligation to conform to a certain standard of conduct for the protection of others against unreasonable risks (duty); (2) failure to conform to that standard (breach of the duty); (3) a reasonably close connection between the defendant's conduct and resulting injuries (proximate cause); and (4) actual loss (damages).  (Id., § 30, pp. 164-165.)   The first element--existence of a duty to be decided by the court rather than the jury--"is not an immutable fact, but rather an expression of policy considerations leading to the legal conclusion that a plaintiff is entitled to a defendant's protection."  (Ludwig v. City of San Diego (1998) 65 Cal.App.4th 1105, 1110.)  To determine the standard of conduct required by the first element of negligence, we generally undertake a risk-benefit analysis "by balancing the risk, in the light of the social value of the interest threatened, and the probability and extent of the harm, against the value of the interest . . . the actor is seeking to protect, and the expedience of the course pursued.  For this reason, it is usually . . . difficult, and often simply not possible, to reduce negligence to any definite rules; it is 'relative to the need and the occasion,' and conduct . . . proper under some circumstances becomes negligence under others."  (Prosser & Keeton, supra, § 31, p. 173, fns. omitted.)  Stated differently, " 'duty' is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff; and in negligence cases, the duty is always the same--to conform to the legal standard of reasonable conduct in the light of the apparent risk."  (Id., § 53, p. 356.)  Thus, although the articulated standard is the same, the question of what is reasonable will depend in each case on the particular circumstances facing that defendant considering the foreseeability of the risk of harm balanced against the extent of the burden of eliminating or mitigating that risk.

            This cursory overview of negligence law helps focus the threshold question present in every negligence action: How do we define the scope of the defendant's duty established by law for the protection of others against a risk of harm?  Out of the generic obligations owed by landowners to maintain property in a reasonably safe condition, the law of negligence in the landlord-tenant context has evolved to impose a duty of reasonable care on the owner of an apartment building to protect its tenants from foreseeable third party criminal assaults.  Thus, the question of a landlord's duty is not whether a duty exists at all, but rather what is the scope of the landlord's duty given the particular facts of the case?  Our reference to the scope of the landlord's duty is intended to describe the specific steps a landlord must take in a given specific circumstance to maintain the property's safety to protect a tenant from a specific class of risk.  It is this question that we decide as a matter of law. 

            When a court strives to answer this question, we believe it should limit its inquiry to the specific action the plaintiff claims the particular landlord had a duty to undertake in the particular case.  This specific action approach was used, albeit sub silencio, by the Supreme Court in both Ann M. and Sharon P.  In both of those cases, the Supreme Court considered whether, as alleged by the plaintiffs, the scope of the duty owed by owners of a shopping center and a commercial parking garage extended to providing security guards to protect its tenants and customers from violent crimes.  (Ann M., supra, 6 Cal.4th at p. 670; Sharon P., supra, 21 Cal.4th at pp. 1188-1189.)  Only after the scope of the duty under consideration is defined may a court meaningfully undertake the balancing analysis of the risks and burdens present in a given case to determine whether the specific obligations should or should not be imposed on the landlord.  If only the broad proposition that landlords have a duty to exercise reasonable care to maintain their property in a safe condition is considered rather than focusing on the scope of duty, then in every premises liability negligence case the existence of the duty is present, there is no duty issue for the court to determine and each case would be decided by the jury's determination of breach of duty, causation and damages.  The law has not evolved in this manner.

            The factors to be weighed in the balancing analysis necessary to determine the scope of the duty in a case will vary with each case.  However, a review of the cases addressing the question of duty in the landlord-tenant context reveals two primary considerations: the foreseeability of the harm and the burden on the landlord created by the duty to protect against the harm.[5]  In both Ann M. and Sharon P., the Supreme Court adopted this approach to determine whether the scope of the landlords' duties extended to providing security guards, and evaluated the degree to which the attacks were foreseeable considering the circumstances weighed against the extent of the burden to the defendants of providing security guards, as urged by the plaintiffs.  " ' "[I]n cases where the burden of preventing future harm is great, a high degree of foreseeability may be required.  [Citation.]  On the other hand, in cases where there are strong policy reasons for preventing the harm, or the harm can be prevented by simple means, a lesser degree of foreseeability may be required." [Citation.]' " (Ann M., supra, 6 Cal.4th at pp. 678-679, quoting Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 125 (Isaacs ).)

            In Ann M. the Supreme Court determined the plaintiff had not established the degree of foreseeability of harm necessary to require the security measures requested.  The plaintiff, employed by one of the tenants in defendants' commercial shopping center, was raped and robbed at knifepoint in the store where she worked, and sued the landlords for negligence.  (Ann M., supra, 6 Cal.4th at pp. 670-671.)  In deciding that violent criminal assaults were not sufficiently foreseeable to impose a duty on the defendants to provide security guards in common areas, the court noted there was no evidence that defendants had notice of prior similar incidents occurring on the premises, evidence of other criminal conduct on the premises was not similar in nature to the violent assault suffered by plaintiff, and neither evidence of the crime rate in the surrounding neighborhood nor evidence that transients were present on the premises was sufficient to establish a high degree of foreseeability.  (Id. at pp. 679-680.)  Because the court concluded the monetary and social burdens of hiring of security guards were neither minimal nor insignificant, the court concomitantly held that a high degree of foreseeability of harm was required, which could "rarely, if ever, . . . be proven in the absence of prior similar incidents of violent crime on the landowner's premises."  (Id. at p. 679, fn. omitted.)

            Similarly, in Sharon P. the court declined to impose a duty on the defendant landlords to provide security guards in their underground commercial parking garage because the sexual assault on the plaintiff was not sufficiently foreseeable.  Although there was evidence the bank in the building had been robbed seven times in the prior 27-month period, and several hundred crimes, including two rapes, had occurred in the 50 square blocks surrounding the building, no crimes had been reported in the garage in the 10 years preceding the attack.  (Sharon P., supra, 21 Cal.4th at pp. 1186, 1191, 1194-1195.)  The court found it significant that none of the bank robberies involved violent attacks, and held that their dissimilarity to the sexual assault on the plaintiff, even when considered with the other evidence, did not establish the high degree of foreseeability necessary to justify the "significant burden" (id. at p. 1195) of imposing a duty to provide security guards in the garage.[6]  (Id. at p. 1191.)

            Numerous other cases have decided the question of a landlord's negligence liability for a tenant's injuries by considering the foreseeability of the injury balanced against the burden of protecting against that injury.[7]  For example, in 7735 Hollywood Blvd. Venture v. Superior Court (1981) 116 Cal.App.3d 901, the plaintiff was raped in her apartment and sued her landlord, claiming there was a duty to provide lighting and security devices sufficient to prevent the attack.  The court rejected the claim because the plaintiff had not alleged sufficient foreseeability of the attack to justify the vague (and thus potentially onerous) duty she sought to impose on the defendant.  (Id. at p. 905.)  In Totten v. More Oakland Residential Housing, Inc. (1976) 63 Cal.App.3d 538 the plaintiff, wounded by a shooting on the premises of the apartment building, sued the landlord claiming there was a duty to provide "proper guard service or other supervision of the premises."  (Id. at p. 541.)  The court rejected the claim, primarily on the ground that the plaintiff had not alleged sufficient foreseeability to justify the duty she sought to impose on the defendant, but also noting that:  "[B]oth the proposed duty and the measures to be applied in discharge of the duty defy exact delineation and suffer from inherent vagueness.  The questions posed in Goldberg [v. Housing Auth. of Newark (N.J. 1962) 186 A.2d 291] could all be asked here:  'To which multi-family houses would the duty apply?  Would it depend upon the number of tenancies?  If so, can we now fix the number?  And if the duty springs from a combination of tenancies and prior unlawful events, what kind of offenses will suffice, and in what number, and will crimes next door or around the corner or in the neighborhood, raise the obligation?  And if a prescient owner concludes the duty is his, what measures will discharge it?  It is an easy matter to know whether a stairway is defective and what repairs will put it in order. . . .  [B]ut how can one know what measures will protect against the thug, the narcotic addict, the degenerate, the psychopath and the psychotic?"  [Quoting Goldberg, supra, at p. 297.]  These questions by themselves signify the formidable task of defining the exact scope of the duty and the measures required of the landlord to meet that duty.  We are in full agreement with the Goldberg court that to predicate tort liability upon such a loose and vague standard would be genuinely unfair to the landlord . . . ."  (Totten, supra, at p. 546.)

            Similarly, in Rogers v. Jones (1976) 56 Cal.App.3d 346, the court declined to impose a duty on a football stadium parking lot operator to prevent an attack by one fan on another.  The court held that the measures needed to prevent that incident would be unreasonably burdensome, necessitating one guard be provided for every fan, and concluding the harm to the plaintiff was not sufficiently foreseeable to warrant that heavy burden.  (Id. at p. 352.)  Finally, in Pamela W. v. Millsom (1994) 25 Cal.App.4th 950, the plaintiff was raped by an intruder into her condominium, one of four in the condominium complex.  During the rape, the assailant called Pamela by name, and told her that he had been watching her.  She sued her landlords, alleging negligence, and they obtained summary judgment on the ground they owed her no duty because the attack was not reasonably foreseeable in the absence of prior similar incidents on the premises.  (Id. at pp. 953-955.)  On appeal, this court undertook an analysis of the landlords' duty in the context of Ann M. and affirmed, concluding the rape was not sufficiently foreseeable to impose the extraordinarily burdensome duty on the defendants to physically secure the premises in the manner demanded by the plaintiff.[8]  (Pamela W., supra, at p. 959.)

            In contrast, in Kwaitkowski v. Superior Trading Co. (1981) 123 Cal.App.3d 324, plaintiff was raped in a common area in her apartment building, and sued the landlord, alleging that the lock to the common hallway was broken and a robbery had previously occurred in the same hallway.  The court held that the burden of fixing the lock on the lobby door placed the landlord under a minimal burden and the slight foreseeability of the rape considering the prior robbery in the same location was sufficient to impose a duty on the landlord to provide the "first line of defense" against intruders by providing working locks. (Id. at p. 333.)  Similarly, in Gomez v. Ticor (1983) 145 Cal.App.3d 622 (disapproved on other grounds by Sharon P., supra, 21 Cal.4th at p. 1193), plaintiffs' decedent was killed in a parking garage when he interrupted a robbery in progress.  In reversing summary judgment for the owner of the parking garage, the court noted the history of theft and vandalism in the garage, and concluded that it was at least somewhat foreseeable that a garage patron would interrupt such an act and be subject to a violent attack by the perpetrator.  Balanced against the burden of providing a " 'first line of defense' " against intruders, which the court did not precisely define but concluded was minimal and did "not place an onerous burden upon defendant or society," the court held defendant had a duty to implement those minimal measures.  (Id. at pp. 632-633.)

            Although these cases have resolved as a matter of law the question of the scope of the landlord's duty, often by engaging in an implicit balancing process, the method used to reach their conclusions is unclear.  We discern from these cases the following analytical approach to evaluate the threshold legal question of duty that a court must resolve.

            First, the court must determine the specific measures the plaintiff asserts the defendant should have taken to prevent the harm.  This frames the issue for the court's determination by defining the scope of the duty under consideration.  Second, the court must analyze how financially and socially burdensome these proposed measures would be to a landlord, which measures could range from minimally burdensome to significantly burdensome under the facts of the case.[9]  Third, the court must identify the nature of the third party conduct that the plaintiff claims could have been prevented had the landlord taken the proposed measures, and assess how foreseeable (on a continuum from a mere possibility to a reasonable probability) it was that this conduct would occur.  Once the burden and foreseeability have been independently assessed, they can be compared in determining the scope of the duty the court imposes on a given defendant.  The more certain the likelihood of harm, the higher the burden a court will impose on a landlord to prevent it; the less foreseeable the harm, the lower the burden a court will place on a landlord.[10]   

            The trial court here granted summary judgment for Owners after concluding they did not owe plaintiffs a legal duty because they had no knowledge of facts to suggest that Jesus had violent propensities and therefore it was not reasonably foreseeable he would violently attack decedent.  Employing the analytical approach set forth above, we review de novo the trial court's order granting summary judgment for Owners.

            We begin with the specific duty plaintiffs seek to impose on Owners: the obligation to restore the integrity of the front door to Apartment 6 by replacing the missing glass pane.  The action plaintiffs contend Owners should have but did not take defines the scope of the duty that we determine as a matter of law should or should not be imposed.  The question we must answer is: Did Owners owe plaintiffs a duty to make reasonable efforts to restore the protections that an intact front door would have provided with replacement of the missing windowpane?  To answer this question we first evaluate the extent of the burden placed on Owners were they required to take the requested action.  The evidence is undisputed that the burden would have been minimal: the materials for replacing the missing pane had already been purchased, and the cost of completing the pane replacement would have been approximately $15.00.  We conclude that, under the facts presented, plaintiffs' proposed duty is so minimally burdensome that it militates in favor of imposing that duty on Owners.

            Where " ' "the harm can be prevented by simple means, a lesser degree of foreseeability may be required."  [Citation.]' " (Ann M., supra, 6 Cal.4th at p. 679.)  Considering the minimal burden on Owners to take the action proposed by plaintiffs, we consider how foreseeable it was that an intruder might utilize a missing windowpane in the front door to enter the apartment.  The evidence, viewed most favorably to plaintiffs, showed plaintiffs complained to the manager that the missing windowpane was a security risk, at least one incident had occurred involving an aborted entry by an intruder into Apartment 6, and assaultive crimes had been reported in other apartments in the building.  We conclude that, if the facts known to Owners were sufficient to notify them of a slight likelihood that an intruder might seek to enter the apartment, they had a duty to take the minimally burdensome steps available to restore the integrity and security provided by a repaired front door.

            Owners contend that because they had no knowledge of Jesus's violent propensities, they could not have foreseen that he would violently attack someone on the premises and therefore had no duty to take any action to prevent the attack.  However, a high degree of foreseeability is not required to impose the minimally burdensome measures urged here.  (See Musgrove v. Ambrose Properties (1978) 87 Cal.App.3d 44, 52-53 [lesser degree of foreseeability is required when the proposed duty involves simple, effective, and easily defined steps].)  Moreover, foreseeability depends not on whether a particular plaintiff's injury was foreseeable as a result of a particular defendant's conduct, but instead on whether the conduct at issue created a foreseeable risk of a " 'particular kind of harm.' "  (M.W. v. Panama Buena Vista Union School Dist. (2003) 110 Cal.App.4th 508, 519; Ballard v. Uribe (1986) 41 Cal.3d 564, 572-573, fn. 6.)  The particular type of harm risked by a weakened front door is that the "first line of defense" against intruders (Kwaitkowski v. Superior Trading Co., supra, 123 Cal.App.3d at p. 333) will not protect the occupants against intruders.[11]  As articulated by Kwaitkowski, "[f]oreseeability does not require prior identical or even similar events" (id. at p. 329), and the court found that the plaintiffs had alleged sufficient facts to justify imposition of a duty of care upon the landlord concerning the lock, explaining "[t]he instant case involves a defective lock on the lobby door that provided easy access to strangers.  As the court noted in [7735 Hollywood Blvd. Venture v. Superior Court, supra, 116 Cal.App.3d 901], the utility of a light outside the door was questionable.  Here, [in contrast,] a properly functioning front door lock is a vital first line of defense."  (Kwaitkowski v. Superior Trading Co., supra, 123 Cal.App.3d at p. 333.)

            We conclude in this case that the degree of foreseeability of a criminal intruder by Owners was sufficiently high, compared with the burden of the duty proposed by plaintiffs to replace the glass pane, to support imposition of that duty on Owners.

Vasquez v. Residential Investments D0425755/4/04May 04 2004 CA4/1   
 

California: Authoritative-Law Dictionary: Table of Contents    
Glossaries Directory Table of Contents   
Thesaurus Directory  
Dictionaries Directory Table of Contents

Thomas - Legislative Information on the Internet |Check Your Credit Score
Directory of Medical Dictionaries: Table of Contents | California Injury (Torts) Law
USA Entertainment.US | FederalCriminalProcedure.Com |
FederalCriminalProcedure.Com | iLaw Dictionary.Com |  Library of Congress
United States Law Consumer Law TITLE PAGE | USA Entertainment.US
iBusiness Center.US | United States Law: Constitutional Law: Constitutions of  The World: TITLE PAGE
California Contracts Law.Com | California Injury (Torts) Law
Phone Directories From Around the World New | California Law Revision Commission 
California Civil Procedure.Com | Federal Civil Procedure.Com