Opinion
Review Granted Sept. 15, 1994.
Review Dismissed and Cause Remanded to the Court of Appeal Feb. 23, 1995.
Review Granted Previously published at: 25 Cal.App.4th 785, 30 Cal.App.4th 1063
REVIEW GRANTED.
COUNSEL
[31 Cal.Rptr.2d 148] O'Neal, Degerman, Habib, Rea & Morrison and William John Rea, Jr., Northridge, Greines, Martin, Stein & Richland, Irving H. Greines, and Barbara W. Ravitz, Beverly Hills, for defendants and appellants.
Aileen N. Goldstein, Bauer, O'Brien & Bernstein, Peter B. O'Brien and Kelly L. Duenckel, Beverly Hills, for plaintiff and respondent.
OPINION
[31 Cal.Rptr.2d 149] MIRIAM A. VOGEL, Associate Justice.
Pamela B. was raped in the garage of her apartment building. The rapist and his accomplice were caught, convicted and sentenced to state prison (the former for 27 years, the latter for five). With that taken care of, Pamela sued her landlord and the property management company in charge of her building, contending their inadequate attempts to provide a secure garage caused her rape. A jury awarded $1.2 million to Pamela, attributing 95 percent of the fault to the landlord and management company, 4 percent to the man who savagely raped Pamela, forced her to orally copulate him, then stuffed her naked body into the trunk of a car, and 1 percent to the aider and abettor. The landlord and management company appeal, contending their negligence was not the cause of Pamela's rape but, if it was, the allocation of blame is skewed and cannot stand.
If causation was before us as an issue of first impression, we would hold that, as a matter of law, the landlord and management company were not the legal cause of Pamela's rape. But the issue has been visited before, both by our Supreme Court and the Courts of Appeal and, as it stands, we are compelled to conclude the issue of causation was properly submitted to the jury— but we are not compelled to like this result. As will appear, we suggest it is time for the Supreme Court to consider whether a theory adopted when violent crime was the exception rather than the rule remains valid in today's society. Aside from the causation issue, we hold the apportionment of fault cannot stand and that the defendants are entitled to a limited new trial on that issue.
FACTS
In late 1988, Pamela moved into her boyfriend's (Ion B.) apartment in a 21-unit Hollywood " security building." On a December evening in 1989, Pamela took the elevator from their apartment down to the underground garage area, where Ion's car was parked. When the elevator reached the garage and Pamela got out, she did not see anybody. As she walked to Ion's car, however, she saw a stranger sitting in a car parked in the adjacent space. Pamela asked the man (later identified as Randy " Crazy" Nakamura) to close the door to his car because it was blocking her access to Ion's car. He complied. Pamela opened the door to Ion's car and, as she leaned over to throw her purse onto the seat, a second man (Prince Veal, a paroled felon previously convicted of murder, kidnapping and a variety of drug and auto offenses) grabbed her from behind, held a knife to her throat and threatened to kill her if she did not cooperate. Veal then put Pamela into another car, forced her to remove all her clothing, raped her, forced her to orally copulate him, raped her again and, finally, pushed her into the trunk of another car, threw her clothes in after her and closed the trunk. About 15 minutes later, she managed to get out and call for help.
Veal and Nakamura were apprehended while driving Ion's car, which they had stolen. Pamela identified both men and they were charged with various crimes. Both men pled guilty and were sentenced to state prison, Veal for 27 years and Nakamura for five.
Pamela then sued David Hayden, the owner of the apartment building, and Charles Dunn Company, the property manager, alleging they were negligent because they failed to take adequate measures to secure the garage. At trial, Pamela presented evidence of the facts set out above, plus other evidence intended to prove the elements of her negligence cause of action. Since duty, breach and damages are conceded for purposes of this appeal, however, we simply summarize the evidence about what the owner and manager did and did not do.
Pamela did not sue Veal or Nakamura. Accordingly, our references to " Defendants" include only David Hayden and Charles Dunn Company.
When Defendants filed their opening brief on appeal, Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 25 Cal.Rptr.2d 137, 863 P.2d 207, was pending before our Supreme Court and there was a possibility the Court would limit the scope of a landlord's duty in negligence cases involving a third party's act of criminal violence. (See Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 123-124, 211 Cal.Rptr. 356, 695 P.2d 653.) To keep their options open, Defendants mentioned the point and expressed their views in favor of a dramatic limitation. As it developed, the Supreme Court did not go as far as Defendants would have liked. Instead, Ann M. held only that the " high degree of foreseeability" required to impose on a landlord a duty to hire security guards can " rarely, if ever, ... be proven in the absence of prior similar incidents of violent crime on the landowner's premises." (Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 679, 25 Cal.Rptr.2d 137, 863 P.2d 207.) Accordingly, while Defendants have preserved their issue for purposes of petitioning the Supreme Court for review, their opening brief did not suggest the evidence was insufficient to support a finding of duty.
[31 Cal.Rptr.2d 150] Although the 30-year-old apartment building was promoted as a " security" building, more than half the lights in the garage were burned out and had been for some time prior to Pamela's rape— and the lights which were working were not particularly bright. In the words of one investigating officer, the garage was " probably the darkest underground parking lot that I've ever been in that I can recall." Pamela and other residents of the building had complained to the resident manager, to no avail. As far as access to the garage was concerned, one door was often left open by tenants, to make it easier to get in and out with packages in hand, and another door could be opened with a credit card— although no one knows how Veal or Nakamura got into the garage. There had been other crimes in or around the building but no violent crimes and certainly nothing as serious as this rape.
The jury found Charles Dunn Company and Hayden were negligent and awarded $1.2 million to Pamela ($200,000 for economic damages and $1 million for non-economic damages). Fault was allocated 95 percent to Defendants (76 percent to the property manager and 19 percent to the owner) and 5 percent to the rapists (4 percent to Veal and 1 percent to Nakamura). Defendants appeal.
DISCUSSION
I.
Defendants contend there was no proof of any causal connection between their negligence and Pamela's injuries. It follows, they claim, that the judgment must be reversed and the issue decided in their favor as a matter of law. We disagree.
A.
Causation— The Basic Rules
To recover on a negligence theory, a plaintiff must prove duty, breach, causation and damages. (Rest.2d Torts, § 281; Nola M. v. University of Southern California (1993) 16 Cal.App.4th 421, 426, 20 Cal.Rptr.2d 97; 6 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, § 732, pp. 60-61.) The causation element is satisfied when the plaintiff establishes (1) that the defendant's breach of duty (his negligent act or omission) was a substantial factor in bringing about the plaintiff's harm and (2) that there is no rule of law relieving the defendant of liability. (Nola M. v. University of Southern California, supra, 16 Cal.App.4th at p. 427, 20 Cal.Rptr.2d 97.) These are questions of fact for the jury— except when the facts are undisputed, or when reasonable minds cannot dispute the absence of causation, or when the policy determination is one of law. (Constance B. v. State of California (1986) 178 Cal.App.3d 200, 207, 223 Cal.Rptr. 645; Tate v. Canonica (1960) 180 Cal.App.2d 898, 913-915, 5 Cal.Rptr. 28; Schrimsher v. Bryson (1976) 58 Cal.App.3d 660, 664, 130 Cal.Rptr. 125.)
In some contexts, the causation analysis is relatively simple. For example, in cases of direct causation (where there is no third party involvement or other intervening force), the primary causation question is whether the defendant's conduct was a substantial factor in bringing about the plaintiff's harm. If it was, the defendant is liable for the plaintiff's injuries. (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052, 1 Cal.Rptr.2d 913, 819 P.2d 872; Rest.2d Torts, § 431; 6 Witkin, Summary of Cal.Law, supra, Torts, § 969, p. 359.)
Traditionally, causation has been discussed in terms of " proximate cause," a phrase encompassing both " causation in fact" and " legal cause." In Mitchell v. Gonzales, supra, 54 Cal.3d 1041, 1 Cal.Rptr.2d 913, 819 P.2d 872, our Supreme Court disapproved the use of BAJI No. 3.75 (which defines the proximate cause of an injury as a cause which, in natural and continuous sequence, produces the injury and without which the injury would not have occurred) in negligence cases, opting instead for the less confusing " substantial factor" instruction, BAJI No. 3.76 (a cause of injury is something that is a substantial factor in bringing about an injury). But the Court was careful to explain that its disapproval of the " proximate cause" instruction was limited solely to the question of " causation in fact" (id. at p. 1049, 1 Cal.Rptr.2d 913, 819 P.2d 872) and that it was not by implication eliminating the requirement of " legal cause" (id. at p. 1049, fn. 4, 1 Cal.Rptr.2d 913, 819 P.2d 872). The practical effect of all this is that juries are told to find causation exists if the defendant's negligence was a " substantial factor" in causing the plaintiff's injuries, and the question of legal cause (whether some rule of law relieves the defendant of liability) remains to be determined according to the rules governing the particular case.
[31 Cal.Rptr.2d 151] The analysis becomes more complex, however, if other acts or actors are added to the equation. For example, when the separate and distinct negligent acts of two persons are in substantially simultaneous operation and both contribute to the plaintiff's injury, each is and both are the proximate cause of the injury and the plaintiff may recover from either or both of the parties. (Canvin v. General Brewing Corp. (1937) 20 Cal.App.2d 49, 53-55, 66 P.2d 691; Blackwell v. American Film Co. (1920) 48 Cal.App. 681, 684, 192 P. 189 [two negligent drivers collide, as a result of which a pedestrian is injured].) In this situation, the courts talk in terms of " concurrent causes." (6 Witkin, Summary of Cal.Law, supra, Torts, § 970, pp. 360-361, and cases there cited; for variations on this theme, see Ybarra v. Spangard (1944) 25 Cal.2d 486, 154 P.2d 687; and Summers v. Tice (1948) 33 Cal.2d 80, 199 P.2d 1.)
The most complex cases are those involving intervening forces, either " normal" or " independent." The intervening force which is a " normal" reaction to the defendant's negligent conduct does not break the chain of causation. (Rest.2d Torts, § 443; Champagne v. A. Hamburger & Sons (1915) 169 Cal. 683, 147 P. 954.) But where, after the defendant's negligent act or omission, an " independent intervening force" actively operates to produce the plaintiff's injury, the chain of causation may (or may not) be broken. In most cases, the issue is phrased in terms of foreseeability— if the risk of injury by the independent intervening force might have been reasonably foreseen, the defendant is liable. But if the independent intervening act is highly unusual or extraordinary, not reasonably likely to happen and hence not foreseeable, it is deemed a " superseding cause" and it operates to relieve the defendant of liability. (See, e.g., Premo v. Grigg (1965) 237 Cal.App.2d 192, 197-198, 46 Cal.Rptr. 683.) Which brings us to the rules governing acts and omissions by third parties.
B.
Causation— Acts and Omissions by Third Persons
We turn now to the causation question raised by Pamela's case, which is whether the criminal act of a third person (a rapist) is a superseding cause which breaks the chain of causation and relieves Defendants of the liability arising from their failure to change the light bulbs and fix the locks in the garage. As we will explain, case law in California compels the conclusion that it is not. As we will also explain, we think it is time for the Supreme Court to take another look at this issue.
1.
A third party's negligent act or omission may be " highly unusual or extraordinary, not reasonably likely to happen and hence not foreseeable" when viewed by one court, but quite " normal" when viewed by another. For example, a defendant may or may not be liable when his negligence causes a collision which leaves the plaintiff helpless on a highway and the plaintiff is thereafter struck by another negligent driver. (Christensen v. Los Angeles Elec. Sup. Co. (1931) 112 Cal.App. 629, 632, 297 P. 614 [defendant is not liable]; compare Hill v. Peres (1934) 136 Cal.App. 132, 28 P.2d 946 [defendant is liable].) On a clear day, some courts can foresee forever, at least when they are looking for negligence. Others are myopic. (For a range of examples, see Lacy v. Pacific Gas & Electric Co. (1934) 220 Cal. 97, 98, 29 P.2d 781; [31 Cal.Rptr.2d 152] Burke v. W.R. Chamberlin & Co. (1942) 51 Cal.App.2d 419, 423, 125 P.2d 120; Carroll v. Central Counties Gas. Co. (1925) 74 Cal.App. 303, 308, 240 P. 53; Hansen v. Market Street Ry. Co. (1923) 64 Cal.App. 426, 430, 221 P. 955; Klarquist v. Chamberlain & Proctor (1932) 124 Cal.App. 398, 401, 12 P.2d 664; Newman v. Steuernagel (1933) 132 Cal.App. 417, 423, 22 P.2d 780; Inai v. Ede (1941) 42 Cal.App.2d 521, 523, 109 P.2d 400; Ferroggiaro v. Bowline (1957) 153 Cal.App.2d 759, 315 P.2d 446; Sweet v. Los Angeles Railway Co. (1947) 79 Cal.App.2d 195, 179 P.2d 824; Parker v. City & County of San Francisco (1958) 158 Cal.App.2d 597, 323 P.2d 108; Stultz v. Benson Lumber Co. (1936) 6 Cal.2d 688, 692, 59 P.2d 100; Waterman v. Liederman (1936) 16 Cal.App.2d 483, 487, 60 P.2d 881; Catlin v. Union Oil Co. (1916) 31 Cal.App. 597, 604, 161 P. 29; N.W. etc. Ins. Co. v. Rogers etc. Foundry (1946) 73 Cal.App.2d 442, 166 P.2d 401; McEvoy v. American Pool Corp. (1948) 32 Cal.2d 295, 195 P.2d 783; Fish v. Los Angeles Dodgers Baseball Club (1976) 56 Cal.App.3d 620, 128 Cal.Rptr. 807; Cline v. Watkins (1977) 66 Cal.App.3d 174, 135 Cal.Rptr. 838.)
2.
A third party's criminal act presents a different set of problems. To begin with, the issue arises in a particular factual setting, similar if not identical to Pamela's case— a landowner does something in a negligent fashion (or negligently fails to do something he should have done), following which a third person commits a crime which (in the physical sense if not in the legal sense) is the " cause" of the plaintiff's injury (rape, robbery, murder or whatever).
The older cases viewed an intervening criminal act as less foreseeable than an intervening negligent act and, more often than not, treated it as a superseding cause. (See e.g., Angelis v. Foster (1938) 24 Cal.App.2d 541, 543, 75 P.2d 650; see also Gonzalez v. Derrington (1961) 56 Cal.2d 130, 132-133, 363 P.2d 1.) Under the modern view, as set forth in section 449 of the Restatement Second of Torts and adopted by our Supreme Court in Mosley v. Arden Farms Co. (1945) 26 Cal.2d 213, 219, 157 P.2d 372, the rule has been restated in different terms and, in the restating, altered. According to the Restatement, " [i]f the likelihood that a third person may act in a particular manner is the hazard or 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.) Stated otherwise, if the likelihood that a tenant may be criminally assaulted in the garage of an apartment building is one of the hazards which makes the defendant negligent (because he had a duty to exercise due care to prevent the attack), the criminal act of a third party (in this case, the rape) does not prevent the defendant from being liable for the harm caused to the tenant.
When the Supreme Court first cited section 449 of the Restatement of Torts Second, it was in a case involving an intervening act of negligence, not criminal conduct. (Mosley v. Arden Farms Co., supra, 26 Cal.2d at p. 219, 157 P.2d 372.) But ten years later, the Supreme Court applied section 449 in a case involving a third party's criminal conduct (Richardson v. Ham (1955) 44 Cal.2d 772, 777, 285 P.2d 269 [owner of bulldozer who left it unlocked liable to plaintiff injured by teenagers joyriding on the bulldozer]) and the rule remains in place today. (Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 501-502, fn. 10, 229 Cal.Rptr. 456, 723 P.2d 573.)
The phrasing of the rule invites confusion. Campodonico v. State Auto Parks, Inc. (1970) 10 Cal.App.3d 803, 89 Cal.Rptr. 270, where the plaintiff was criminally attacked and injured in the defendant's parking lot, provides a good example. According to Division Three of our Court, " [t]he concept of intervening causation is inapplicable here; the cause of action is based upon the assumption that an act by a third party caused plaintiff's injuries and is addressed to the issue of whether defendant had a duty to prevent such act. ‘ If the realizable likelihood that a third person may act in a particular manner is the hazard or 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.’ [Citations.]" (Campodonico v. State Auto Parks, Inc., supra, 10 Cal.App.3d at p. 808, 89 Cal.Rptr. 270, emphasis added.) [31 Cal.Rptr.2d 153] Read this way, there is no causation issue in any case in which the defendant had any duty at all, a conclusion which may be wrong as often as it may, by pure coincidence, be right.5
It is true that foreseeability is an element of duty as well as causation. (Rowland v. Christian (1968) 69 Cal.2d 108, 112-113, 70 Cal.Rptr. 97, 443 P.2d 561.) But there is much more to the duty analysis. As the Supreme Court explained in Rowland v. Christian, the general rule (as codified in section 1714 of the Civil Code) is that a person is liable for injuries caused by his failure to exercise reasonable care in the circumstances, and that fundamental duty is questioned only when a court must determine whether to declare an exception to the general rule. ( Rowland v. Christian, supra, 69 Cal.2d at p. 112, 70 Cal.Rptr. 97, 443 P.2d 561.) " A departure from this fundamental principle involves the balancing of a number of considerations; the major ones are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved." (Id. at pp. 112-113, 70 Cal.Rptr. 97, 443 P.2d 561.) (emphasis added.)
When the defendant is a possessor of real property, his duty is defined in terms of his responsibility " for an injury caused to another by his want of ordinary care or skill in the management of his property" and the question is whether, in the management of his property, " he has acted as a reasonable man in view of the probability of injury to others...." (Rowland v. Christian, supra, 69 Cal.2d at pp. 118-119, 70 Cal.Rptr. 97, 443 P.2d 561.) More specifically, the general duty of a possessor of land includes " the duty to take 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." (Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 674, 25 Cal.Rptr.2d 137, 863 P.2d 207.)
In our case, therefore, Defendants— as a matter of law— owed a duty to Pamela. (Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 674, 25 Cal.Rptr.2d 137, 863 P.2d 207). But we don't think that means they also, as a matter of law, were the " cause" of Pamela's injury. First, although the existence of duty is always a question of law for the court (Isaacs v. Huntington Memorial Hospital, supra, 38 Cal.3d at p. 124, 211 Cal.Rptr. 356, 695 P.2d 653), the existence of causation is usually a question of fact for the jury and it becomes a question of law only when the facts are undisputed, or where reasonable minds cannot dispute the absence of causation, or when the policy determination is one of law. [31 Cal.Rptr.2d 154] (Constance B. v. State of California, supra, 178 Cal.App.3d at p. 207, 223 Cal.Rptr. 645; Tate v. Canonica, supra, 180 Cal.App.2d at pp. 913-915, 5 Cal.Rptr. 28; Schrimsher v. Bryson, supra, 58 Cal.App.3d at p. 664, 130 Cal.Rptr. 125.)
It must be remembered that our case does not involve an assertion that security guards should have been hired to patrol the property. Accordingly, the prior similar acts requirement imposed in Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 679, 25 Cal.Rptr. 137, 863 P.2d 207, does not apply. As the Supreme Court explained in Ann M., " before and after our decision in Isaacs, we have recognized that the scope of the duty is determined in part by balancing the foreseeability of the harm against the burden of the duty to be imposed." (Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 678, 25 Cal.Rptr. 137, 863 P.2d 207.) In cases where the burden of preventing future harm is great (such as hiring security guards), a high degree of foreseeability may be required. Conversely, in cases where there are strong public policy reasons for preventing harm or the harm can be prevented by simple means, a lesser degree of foreseeability may be required. (Id. at pp. 678-679, 25 Cal.Rptr. 137, 863 P.2d 207.) It is not a great burden to change light bulbs and fix broken locks.
Second, even if the criminal act was foreseeable, the defendant's negligence is not the cause in fact of the plaintiff's injury unless the jury concludes the defendant's act or omission was a " substantial factor" in causing the injury. (Rest.2d Torts, § 431, com. a [" substantial" means the defendant's conduct " has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense" ]; People v. Caldwell (1984) 36 Cal.3d 210, 220, 203 Cal.Rptr. 433, 681 P.2d 274 [no cause will receive judicial recognition if the part it played was so infinitesimal or so theoretical that it cannot be regarded as a substantial factor in bringing about the particular result].) For these reasons, we do not agree that a determination of duty necessarily results in a finding of causation. (See Nola M. v. University of Southern California, supra, 16 Cal.App.4th at p. 428, fn. 5, 20 Cal.Rptr.2d 97; cf. Isaacs v. Huntington Memorial Hospital, supra, 38 Cal.3d at p. 131, fn. 8, 211 Cal.Rptr. 356, 695 P.2d 653.)
3.
Although a number of cases involving intervening criminal acts of third persons have reached the Courts of Appeal and even the Supreme Court, only a handful of cases discuss causation— and, interestingly, none result in a finding of causation.
a.
In 1982 and again in 1985, Division Two of our District questioned a landowner's liability in cases involving third party criminal conduct. In 7735 Hollywood Blvd . Venture v. Superior Court (1981) 116 Cal.App.3d 901, 172 Cal.Rptr. 528, a woman who was raped in her apartment sued her landlord on a negligence theory, alleging it had failed to provide adequate outside lighting. In Noble v. Los Angeles Dodgers, Inc. (1985) 168 Cal.App.3d 912, 214 Cal.Rptr. 395, Mr. Noble was injured when he came to the aid of a man who had been attacked by two drunks in the parking lot at Dodger Stadium. Mr. Noble and his wife (who was with him at the time of the attack) sued the Dodgers.
7735 Hollywood Blvd . Venture v. Superior Court , supra , 116 Cal.App.3d 901, 172 Cal.Rptr. 528, holds that, since lighting cannot be said to deter all crime (" [s]ome persons cannot be deterred by anything short of impenetrable walls and armed guards"), and since a proprietor of premises is not the insurer of the safety of persons on those premises, the tenant who was raped cannot sue her landlord. Addressing foreseeability in the context of duty but with words befitting a causation analysis, the court held that " [a]nyone can foresee that a crime may be committed anywhere at any time. But that foreseeability which the owners of rental property or the proprietors of public premises share with the public at large, does not, per se, impose a duty on such property owners or proprietors to install a ‘ security device’ which meets a lay jury's concept of adequacy." (116 Cal.App.3d at p. 906, 172 Cal.Rptr. 528.) The problem with submitting the issue to the jury, the Court noted, was that it would necessarily be " intolerable and grossly unfair to permit a lay jury, after the fact, to determine in any case that security measures were ‘ inadequate,’ especially in light of the fact that the decision would always be rendered in a case where the security had in fact proved to be inadequate." (116 Cal.App.3d at p. 905, 172 Cal.Rptr. 528.)
In Frances T. v. Village Green Owners Assn., supra, 42 Cal.3d 490, 229 Cal.Rptr. 456, 723 P.2d 573, our Supreme Court held otherwise. In Frances T., a woman who had been raped and robbed in her condominium sued her homeowners' association and its board of directors, alleging they had negligently failed to provide adequate lighting. Treating the association and the directors as the plaintiff's landlord, the court held the defendants had a duty to respond to the need for additional lighting— because they were aware " of the need for additional lighting and of the fact that lighting could aid in deterring criminal conduct, especially break-ins" and because there was a history of prior criminal activity in the area. (Frances T. v. Village Green Owners Assn., supra, 42 Cal.3d at p. 503, 229 Cal.Rptr. 456, 723 P.2d 573.) Frances T. thus disapproved 7735 Hollywood Blvd . Venture v. Superior Court , supra , 116 Cal.App.3d 901, 172 Cal.Rptr. 528 (and Riley v. Marcus (1981) 125 Cal.App.3d 103, 177 Cal.Rptr. 827).
[31 Cal.Rptr.2d 155] Noble v. Los Angeles Dodgers, Inc., supra, 168 Cal.App.3d 912, 214 Cal.Rptr. 395, turned on causation, not duty. In Noble, " the direct cause of each plaintiff's injury was the conduct of the person or persons who struck [Mr. Noble].... Plaintiffs' theory is purely and simply that the Dodgers were negligent in failing to effectively deter any and everyone from acting in such a manner. [¶ ] In that vein plaintiffs produced an expert who testified that in his opinion the Dodgers' security was inadequate. He further opined that there should have been seven more individuals employed by the Dodgers for security purposes and that the personnel should have been deployed differently than they were. He did not, and of course could not, say that these additional seven persons or a different deployment pattern would have prevented the plaintiff's injury. In essence, he simply stated that he thought his method of policing the parking lot was better than the one the Dodgers used." (168 Cal.App.3d at p. 917, 214 Cal.Rptr. 395.)
By the time Noble was decided, the Supreme Court had issued its decision in Isaacs v. Huntington Memorial Hospital, supra, 38 Cal.3d 112, 211 Cal.Rptr. 356, 695 P.2d 653. The plaintiff in Isaacs, a doctor affiliated with a private hospital, was shot by an unknown assailant in the hospital's parking lot. He sued the hospital, alleging it had negligently failed to provide adequate lighting. Isaacs rejected the notion that, as a matter of law, the attack was unforeseeable because there were no prior similar attacks. (38 Cal.3d at pp. 130-131, 211 Cal.Rptr. 356, 695 P.2d 653.) Although (as discussed above) this rule has been limited by Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th 666, 25 Cal.Rptr.2d 137, 863 P.2d 207, Isaacs was the law at the time Noble was decided, which explains Noble's switch from duty to causation.
For this reason, the court concluded, " [t]he present case is a classic example of a plaintiff establishing what could be described as abstract negligence, in the context that the Dodgers' security didn't comport with plaintiffs' expert's or the jury's notion of ‘ adequacy,’ but failing to prove any causal connection between that negligence and the injury." (Noble v. Los Angeles Dodgers, Inc., 168 Cal.App.3d at p. 918, 214 Cal.Rptr. 395.) In short, the plaintiff's expert was unable to say that the plaintiff's injuries would not have occurred had the defendant provided more or different security and could not say, therefore, that the defendant's negligence was a substantial factor in causing the plaintiff's injuries. (See also Nola M. v. University of Southern California, supra, 16 Cal.App.4th at pp. 425, 435, 20 Cal.Rptr.2d 97.)
b.
In Constance B. v. State of California, supra, 178 Cal.App.3d 200, 223 Cal.Rptr. 645, a woman assaulted in the restroom of a state-owned roadside rest area sued the state, alleging the restroom was too far from the parking lot to permit adequate surveillance by other users, the door was on the wrong side of the building, the building was below the grade of the freeway, and the lighting was inadequate. (Id. at pp. 208-210, 223 Cal.Rptr. 645.) In affirming summary judgment in favor of the state, the Third District rejected each of these allegations seriatim, noting (with regard to the lighting) that the assailant, " [b]eing bold enough to lurk in the open in the light, staring at women entering the restroom, it is fanciful to speculate that his direct path to the restroom entry might have detoured into and then out of the shadows.
" Nor are we persuaded that the matter should go to the jury on the vague supposition that, notwithstanding that the assailant was standing in the light, even brighter lights might have deterred the assault. This theory has nothing to do with the creation of an opportunity to commit crime by providing a place of concealment. It is premised on the notion that the assailant's psychological propensity for crime is affected by the quantity of light. It is a theory of mood lighting. If liability may be premised solely on this notion, proprietors will become the insurers of the safety of persons on their premises, subject only to the caprice of particular juries.... If we are unwilling as a matter of policy to insure against losses occasioned by crimes, we ought not foist that burden haphazardly on persons not at fault for criminal misbehavior. We conclude that the lighting condition was not a proximate cause of the assault." [31 Cal.Rptr.2d 156] (Constance B. v. State of California, supra, 178 Cal.App.3d at pp. 211-212, 223 Cal.Rptr. 645.)
The causation issue discussed in Constance B. v. State of California, supra, 178 Cal.App.3d 200, 223 Cal.Rptr. 645, followed the court's conclusion that, because it was predictable that criminal assaults would occur under cover of darkness at rest stops, the state owed a duty to the plaintiff to anticipate such conduct and take reasonable steps to enhance the security of innocent users. (Id. at pp. 206-207, 223 Cal.Rptr. 645; see also Peterson v. San Francisco Community College Dist., supra, 36 Cal.3d 799, 805-809, 205 Cal.Rptr. 842, 685 P.2d 1193; Palsgraf v. Long Island R. Co. (1928) 248 N.Y. 339, 162 N.E. 99, 101 [the " question of liability is always anterior to the question of the measure of the consequences that go with liability" ].) If nothing else, Constance B. supports our conclusion that a finding of foreseeability sufficient to create a duty does not necessarily mean there was foreseeability sufficient to show causation in a case involving third party criminal conduct.
c.
Lopez v. McDonald's Corp. (1987) 193 Cal.App.3d 495, 238 Cal.Rptr. 436, was a personal injury and wrongful death action by the survivors and surviving family members of the infamous 1984 massacre at the San Ysidro McDonald's restaurant, in which the plaintiffs claimed McDonald's was negligent because it failed to provide unarmed security personnel to protect its customers. Assuming the existence of a duty, the court held there was no causation because, as a matter of law, no jury could find McDonald's failure to provide unarmed, uniformed, licensed security personnel constituted a substantial factor in causing the resulting injuries, by either effectively deterring such criminal conduct or limiting the scope of the injuries. Relying primarily on Noble v. Los Angeles Dodgers, Inc., supra, 168 Cal.App.3d at pp. 916-918, 214 Cal.Rptr. 395, the court in Lopez found the case before it " a classic example of plaintiffs establishing ‘ abstract negligence’ in that McDonald's security failed to conform with their expert's notion of adequacy as requiring the hiring of a uniformed, licensed security guard, without establishing any causal nexus between this failure and the resulting injuries." (Lopez v. McDonald's Corp., supra, 193 Cal.App.3d at pp. 515-516, 238 Cal.Rptr. 436; see also Palsgraf v. Long Island R. Co., supra, 248 N.Y. 339, 162 N.E. at p. 99 [" Proof of negligence in the air, so to speak, will not do" ].)
Lopez concludes that any " reasonable protective measure such as security cameras, alarms and unarmed security guards, might have deterred ordinary criminal conduct because of the potential of identification and capture, but could not reasonably be expected to deter or hinder a maniacal, suicidal assailant unconcerned with his own safety, bent on committing mass murder." (Lopez v. McDonald's Corp., supra, 193 Cal.App.3d at p. 517, 238 Cal.Rptr. 436; see also Thai v. Stang (1989) 214 Cal.App.3d 1264, 1273, 263 Cal.Rptr. 202 [unintended victim of a drive-by shooting sued owner of skating rink in front of which he was standing at time he was shot; summary judgment in favor of defendant affirmed, on the ground that, as a matter of law, the defendant's failure to provide an unarmed security guard was not a proximate cause of the plaintiff's injury].)
d.
The most recent commentary on this subject is our decision in Nola M. v. University of Southern California, supra, 16 Cal.App.4th 421, 20 Cal.Rptr.2d 97. In Nola M., the plaintiff was attacked and raped on the campus of the University of Southern California. She sued U.S.C. and, at trial, her expert criticized USC's security measures and found them wanting. But he did not, and on the facts of that case could not, say that two or ten or twenty more guards or other security measures could have prevented Nola's injuries. Although the plaintiff prevailed at trial, we reversed with directions to enter judgment in favor of the defendant, finding no causation as a matter of law.
In Nola M., we concluded that when " an injury can be prevented by a lock or a fence or a chain across a driveway or some other physical device, a landowner's failure to erect an appropriate barrier can be the legal cause of an injury inflicted by the negligent or criminal act of a third person.... But where ... we are presented with an open area which could be fully protected, if at all, only by a Berlin Wall, we do not believe a landowner is the cause of a physical assault it [31 Cal.Rptr.2d 157] could not reasonably have prevented." (Nola M. v. University of Southern California, supra, 16 Cal.App.4th at pp. 436-437, 20 Cal.Rptr.2d 97.)
There are many other factually similar cases, but none of them consider the causation issue. For example, in Gomez v. Ticor (1983) 145 Cal.App.3d 622, 193 Cal.Rptr. 600, where the survivors of a man shot by robbers in a parking structure sued the owner of the parking structure, the issue was duty. In O'Hara v. Western Seven Trees Corp., supra, 75 Cal.App.3d 798, 142 Cal.Rptr. 487, where a tenant who was raped in her apartment sued her landlord, the issue was duty. For a more inclusive list of factually similar cases, see Nola M. v. University of Southern California, supra, 16 Cal.App.4th at page 428, footnote 6, 20 Cal.Rptr.2d 97.
4.
We turn now to the facts of this case and the testimony of Pamela's security expert, David L. Berger, who has the usual credentials for someone testifying in this type of case. Berger described the garage as it existed at the time of Pamela's rape. The lighting was " extremely poor." The automatic door closure on the front door to the garage was disconnected and the door, if left open, would not close automatically. On the back door, the safety bar on the spring lock did not function properly and, even if it had, the door could have been opened with a credit card because there was no " anti-shim" bar. A low fence around three sides of the property was depressed from people stepping on it to gain access to the property. A latticework wall at the front of the building " could be very easily climbed over." Although the building's elevator was designed for use with a security key, it could be (and was) operated without the key.
He was first licensed as a private investigator in the 1950's. He founded and previously owned his own company which (with the help of about 200 employees) designed security systems for stores, businesses, apartment houses, private dwellings, hotels and motels. In 1975, he sold the business and joined the Los Angeles County District Attorney's Bureau of Investigation. He left that post in the 1970's and became director of security for Magic Mountain and later for City National Bank. In 1980, he returned to private practice as a consultant for the design of security systems and as a forensic consultant in civil litigation.
In Berger's opinion, " [g]enerally speaking, a dark area will attract criminal activity." Unlit underground garages offer a temptation or a lure to the criminal element and afford them " easy concealment, the ability to work privately without the chances of being observed and identified. And that's what burglars and other criminals really look for is just exactly that kind of an environment." More specifically, " with the combination of the extremely poor lighting, plus the easy accessibility to the underground garage, it was certainly more likely than not that a serious crime eventually would be committed in that area. " (Emphasis added.)
When Berger was asked whether, in his opinion, Veal and Nakamura would have likely been deterred by bright light in the garage, Berger answered thus: " The criminal who will decide to be an armed robber doesn't really care whether he is seen or observed. He will commit his robbery in broad daylight with or without light, it doesn't make any difference, and try to make his escape.... The burglar, on the other hand, depends upon darkness and stealth because he does care whether he is seen, identified, and later apprehended.... So the individual who is committing a burglary ... from an interior of a structure will be deterred by the lighting."
According to Berger, the assault on Pamela " was secondary to [the assailants'] primary crime of attempting to steal a car or steal items from inside of those cars. It was a crime of opportunity. It occurred because she just happened to come by at that time. These were the type of people that bright lighting, in my opinion, probably, more likely than not, would have deterred from entering that area." While Berger conceded that " bright lighting alone" would not have prevented this rape, nor would any security system that could have been in place " guaranteed" that Pamela would not have been raped, he was adamant that the " [c]hances are more likely than not, had all of the security measures been in place and functioning properly, that this probably would not have happened."
Translated into the jargon of causation, Berger told the jury that Defendants' [31 Cal.Rptr.2d 158] failure to provide adequate lighting and locks was a " substantial factor" in causing Pamela's injuries. " [M]ore likely than not" is neither theoretical nor infinitesimal and it is, therefore, " substantial." (People v. Caldwell, supra, 36 Cal.3d at p. 220, 203 Cal.Rptr. 433, 681 P.2d 274; Frances T. v. Village Green Owners Assn., supra, 42 Cal.3d at p. 503, 229 Cal.Rptr. 456, 723 P.2d 573; compare Nola M. v. University of Southern California, supra, 16 Cal.App.4th at pp. 436-437, 20 Cal.Rptr.2d 97.) As is apparent from the verdict, the jury found this testimony credible and concluded that Defendants were the cause in fact of Pamela's injuries. Since the testimony of one witness is sufficient to constitute substantial evidence (Chodos v. Insurance Co. of North America (1981) 126 Cal.App.3d 86, 97, 178 Cal.Rptr. 831), that finding is supported by the record. And since our Supreme Court has, by adopting section 449 of the Restatement Second of Torts, eliminated our ability to conclude, as a matter of law, that the rape was an independent superseding force which broke the chain of causation, the conclusion is unavoidable that Defendants were the legal cause of Pamela's injuries. Accordingly, although we reverse the judgment and remand for a limited retrial for the reasons explained in Part II, post, we find no error in the submission of the causation issue to the jury or the jury's causation findings.
C.
These cases raise problems far beyond the legal issues resolved by traditional rules of negligence. It is nonsense to suggest that Defendants' failure to change some light bulbs and fix some locks was the cause of Pamela's injuries. The cause was what Veal did to her, with Nakamura watching. Veal attacked Pamela, forced her to have intercourse and to orally copulate him, and then pushed her into the trunk of a car. Neither David Hayden (the owner of the building) nor Charles Dunn Company (the manager) did these things, and it is pure sophistry to talk in terms of their comparatively minor negligence as the cause of Pamela's suffering. (See Prosser & Keaton on Torts (5th ed. 1984) § 41, p. 264 [" the consequences of an act go forward to eternity, and the causes of an event go back to the dawn of human events, and beyond. But any attempt to impose responsibility upon such a basis would result in infinite liability for all wrongful acts, and would ‘ set society on edge and fill the courts with endless litigation’ " ]; Sharp, Paying For The Crimes of Others? Landowner Liability For Crimes On The Premises (1987) 29 So.Tex.L.Rev. 11, 17-18, fn. 16 [" Why not single out the criminal's parents for not teaching him to obey the law; the schools for not teaching him a trade; the city for permitting degrading slum areas that breed crime; the police for not preventing crime; the courts for not locking him up and keeping him from hurting others, or the prisons for not rehabilitating him?" ].)
As we said in Nola M. v. University of Southern California, supra, 16 Cal.App.4th at p. 437, 20 Cal.Rptr.2d 97, " [t]o characterize a landowner's failure to deter the wanton, mindless acts of violence of a third person as the ‘ cause’ of the victim's injuries is ... to make the landowner the insurer of the absolute safety of everyone who enters the premises." It is true that a landowner's liability has since been somewhat limited by the Supreme Court's decision in Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th 666, 25 Cal.Rptr.2d 137, 863 P.2d 207. But even when the two cases (Nola M. and Ann M.) are read together and broadly construed in favor of the landowner, the most that can be said is (1) that, absent a history of prior similar incidents, a landowner has no duty to hire security guards; and (2) that where a duty does exist, a plaintiff cannot recover from the landowner unless she proves that his negligent act or omission was a substantial factor in causing the injury she suffered as the result of a third party's criminal attack.
An article in the March 1994 edition of the Los Angeles Trial Lawyers Association's magazine, " Advocate" (Ring, Victims of Violent Crime are Attacked a Second Time by the Courts, at p. 15) opines that Nola M. and Ann M. created an " insurmountable hurdle" and thus " create[d] a gross injustice for victims of violent crimes." Implicit in Mr. Ring's creed is an assumption that California landowners, and not California taxpayers in general, ought to provide victim compensation when the police are unable to prevent violent crime.
[31 Cal.Rptr.2d 159] As Pamela's case demonstrates, the problem is not limited to a demand for security guards where none were provided (Ann M.) or more guards where some were not enough (Nola M.), but also arises where the only demand was for more lighting and operative locks. When a landlord rents apartments in a " security building," he invites an expectation of adequate lighting and locking devices and it would be disingenuous to suggest he owed no duty to provide such minimal protection. An analysis structured on negligence concepts crumbles, however, when the question is whether his failure to provide sufficient lights and locks means he should have to pay $1.2 million because Pamela was savagely raped by an ex-con on parole.
If as a matter of public policy our Supreme Court decides to impose on a landowner (and others who possess or manage real property) an obligation to insure the absolute safety of all persons who enter on his property against the ravages of today's violent society, then it is time to make that declaration in plain English, not in the esoterica of causation. If not, it is time to step up to the line and say so and to adopt another approach. To paraphrase an apt comment in Thing v. La Chusa (1989) 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814, where the Supreme Court imposed limitations on a bystander's ability to recover for emotional distress caused by the defendant's negligence, " [t]he merely negligent actor [ought not to be required] to make monetary amends to all persons who may have suffered [at the hands of a violent criminal who perchance committed his crime on the defendant's property].... Experience has shown that ... there are clear judicial days on which a [jury] can foresee forever and thus determine [causation,] but none on which that foresight alone provides a socially and judicially acceptable limit on recovery of damages for that injury." (48 Cal.3d at p. 668, 257 Cal.Rptr. 865, 771 P.2d 814.)
We can think of at least two ways to approach the problem and there certainly are several others. For example, the Supreme Court could overrule Mosley v. Arden Farms Co., supra, 26 Cal.2d at page 219, 157 P.2d 372, to the extent it adopts section 449 of the Restatement Second of Torts in its entirety, and apply traditional rules of supervening causes in cases involving the criminal acts of third persons. (See e.g., Tate v. Canonica, supra, 180 Cal.App.2d 898, 913-915, 5 Cal.Rptr. 28; Schrimsher v. Bryson, supra, 58 Cal.App.3d 660, 664, 130 Cal.Rptr. 125.) For another example, the Supreme Court could impose a tougher rule of causation in these cases, discarding the " substantial factor" test. This is not as heretical as it sounds— in wrongful death cases based upon medical negligence, causation must be proved to a reasonable medical probability based upon competent expert testimony. (Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1501, 1504-1505, 7 Cal.Rptr.2d 608.)
II.
Defendants contend the jury's apportionment of fault (95 percent to them and five percent to Veal and Nakamura) cannot stand. We agree.
Legally, the issue is one of substantial evidence— if the allocation of fault is supported by substantial evidence, it will be affirmed on appeal; if not, it will be reversed. (New Hampshire Ins. Co. v. Sauer (1978) 83 Cal.App.3d 454, 460, 147 Cal.Rptr. 879; Metzger v. Barnes (1977) 74 Cal.App.3d 6, 9-11, 141 Cal.Rptr. 257; Weidenfeller v. Star & Garter (1991) 1 Cal.App.4th 1, 8, 2 Cal.Rptr.2d 14; Bradfield v. Trans World Airlines, Inc. (1979) 88 Cal.App.3d 681, 687-688, 152 Cal.Rptr. 172; O'Kelly v. Willig Freight Lines (1977) 66 Cal.App.3d 578, 582, 136 Cal.Rptr. 171.) Rationally, however, we cannot leave our common sense on the courthouse steps, which is what we would have to do to affirm the allocation made by the jury in this case. To suggest that Defendants are 95 percent to blame for what happened to Pamela is to relieve Veal and Nakamura of all responsibility, which is something we simply will not do.
It is easy enough to say in this case that no substantial evidence supports the apportionment of fault. Indeed, the most Pamela's own expert had to say on the issue of causation was that Defendants' negligence made it " more likely than not" that a crime would be committed in the garage which, stretched to cover the allocation of responsibility, might thinly support a finding that Defendants [31 Cal.Rptr.2d 160] were 51 percent at fault. But we think it is safe to conclude that the foundation for the award was not the expert's views or any evidence at all. Instead, it was the point artfully made by Pamela's lawyer— that Defendants were the ones with the deep pockets, not Veal (a career criminal serving a 27 year prison term) or Nakamura (who was serving a five year term). It is inconceivable that the jurors missed the point.
Defendants have presented us with lawyer-like arguments about the intent of the comparative fault system— to apportion liability in direct proportion to fault in all cases (Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 827, 119 Cal.Rptr. 858, 532 P.2d 1226)— and the " common sense proposition that when two individuals are responsible for a loss, but one of the two is more culpable than the other, it is only fair that the more culpable party should bear a greater share of the loss" (American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 593, 146 Cal.Rptr. 182, 578 P.2d 899)— and the subsequent adverse reaction to inequitable verdicts aimed at deep-pocket defendants which resulted in a rule of several liability for non-economic injuries (Civ.Code, §§ 1431.1, subd. (a), 1431.2)— and so on. This is all very interesting but, in our view, unnecessary to our resolution of the apportionment issue in this case.
How can the man who grabbed Pamela from behind, held a knife to her throat, threatened to kill her, forced her to strip, raped her, forced her to orally copulate him, raped her again, stuffed her into the trunk of a car and left her there (as he escaped in her boyfriend's car) be only four percent at fault for her injuries? To ask the question compels the answer. He cannot. (Cf. Rangel v. Graybar Electric Co. (1977) 70 Cal.App.3d 943, 946, 139 Cal.Rptr. 191; Knott v. State of California (1994) 23 Cal.App.4th 210, 234, 28 Cal.Rptr.2d 514 [when one defendant's conduct was intentional and another defendant's conduct was negligent, it is reasonable to assume the jury will apportion fault so that the one who acted intentionally should bear " most if not all of the blame" ].) Just as Justice Potter Stewart knew hardcore pornography when he saw it (Jacobellis v. Ohio (1964) 378 U.S. 184, 197, 84 S.Ct. 1676, 1683, 12 L.Ed.2d 793, conc. opn.), we know a blatantly unfair, inequitable and unsupported apportionment of fault when we see it.
Of course, the difficulty in apportioning fault is just one more reason to revamp the landowner liability rules. How can a jury ever rationally allocate fault among parties where their culpability varies from simple negligence to felonious, violent rape? It is one thing to allocate liability in direct proportion to the relative fault of concurrent negligent tortfeasors. (See Fleming, The Supreme Court of California 1974-1975, Foreword: Comparative Negligence at Last— By Judicial Choice, 64 Cal.L.Rev. 239, 252-253.) But entirely different concepts come into play when some of the responsible parties are criminals. (See Zavala v. Regents of University of California (1981) 125 Cal.App.3d 646, 650-651, 178 Cal.Rptr. 185 [comparative negligence applies where defendant was negligent and plaintiff was guilty of willful misconduct (voluntary intoxication) ]; Safeway Stores, Inc. v. Nest-Kart (1978) 21 Cal.3d 322, 146 Cal.Rptr. 550, 579 P.2d 441 [fault is to be allocated among defendants where some are liable in negligence, others in strict liability]; see also Weidenfeller v. Star & Garter, supra, 1 Cal.App.4th at pp. 5-7, 2 Cal.Rptr.2d 14; Baird v. Jones (1993) 21 Cal.App.4th 684, 27 Cal.Rptr.2d 232.)
Defendants ask us to reverse the judgment and remand for a new trial on all issues. That we decline to do, since we see no reason to rehash the issues of duty, breach, causation or the amount of damages (and no prejudice to any party flowing from a limited new trial). (See Liodas v. Sahadi (1977) 19 Cal.3d 278, 285-286, 137 Cal.Rptr. 635, 562 P.2d 316.) Accordingly, we remand solely for a reapportionment of the damages awarded in the original trial. (O'Kelly v. Willig Freight Lines, supra, 66 Cal.App.3d at p. 583, 136 Cal.Rptr. 171.)
DISPOSITION
The judgment is reversed and the cause is remanded to the trial court with directions to conduct a new trial on the apportionment of damages. The parties shall pay their own costs of appeal.
ORTEGA, Associate Justice, concurring:
I agree fully with the majority opinion. It is ludicrous to hold the rapist 4 percent culpable and his cohort one percent, while assessing the combined responsibility of the negligent landowner and manager at 95 percent. [31 Cal.Rptr.2d 161] But what allocation could be upheld on appeal? Is it not per se unreasonable to assess negligence at a higher rate than intentional, wanton criminal activity? Although the result would not be as shocking as what we have here, could we justify holding the owner and manager even 51 percent responsible?
It is ironic that plaintiff suffers reversal because her extremely able counsel was able to get such a result from the jury. Had the jury, for example, assessed the criminals at any higher percentage than the tortfeasors, the verdict would be easier to uphold. What is a trial lawyer to do? The more persuasive one is, the less likely the result will survive appeal. This turns the concept of effective advocacy on its ear. What kind of credibility does all this lend to the justice system?
As the majority opinion so ably points out, this entire concept has put a big hole in the requirement of causation. Plaintiff is able to point to no evidence that any of the defendants' derelictions permitted these criminals to enter the location. No one knows how they got there. For all anyone knows, they may have been invited in by a tenant and could thus have gained access even in the complete absence of any negligence by the owner and manager. But the negligence demonstrated here constitutes an " invitation to the unsavory" and suffices to establish landlord liability.
No rational justice system should permit such bizarre results. " O'Hara v. Western Seven Trees Corp. [1977] 75 Cal.App.3d 798, 142 Cal.Rptr. 487 established that in some instances a landlord has a duty to take reasonable steps to protect a tenant from the criminal acts of third parties and may be held liable for failing to do so." (Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 501, 229 Cal.Rptr. 456, 723 P.2d 573.) If the instant matter is any indication, the O'Hara experiment has failed. But, since the Supreme Court has put its imprimatur on O'Hara, we are powerless to do anything about it.
Slumlords can and should be punished for their actions. Remedies such as jail and withholding rent are available to the authorities and tenants. But this case has exposed the O'Hara concept for what it is— an artificial scheme designed not to fairly assess culpability, but to reach into the deepest pocket.
On retrial, the court will be able to give the jury no instruction or guidance on the appropriate allocation. Theoretically, this case could be tried over and over with persuasive counsel each time getting a jury to heap a high percentage of fault on the owner and manager, with the result repeatedly overturned on appeal. Plaintiff and counsel could be plagued like Sisyphus, who " drew down on himself the relentless wrath of Zeus. In Hades he was punished by having to try forever to roll a rock uphill which forever rolled back upon him." (Hamilton, Mythology (Mentor Books 1961) p. 298.) " [W]hen the steep was well-nigh gained, the rock, repulsed by some sudden force, rushed again headlong down to the plain." (Bulfinch's Mythology (The Viking Press 1980) p. 293.)
The majority opinion forcefully calls for reexamination of this theory of liability. If such is not forthcoming, the Supreme Court or the Legislature should at least take on the daunting task of fashioning some rational limits and jury instructions on the extent to which a negligent landlord can be held civilly accountable for the base and wanton acts of a criminal. The current state of the law leads to unpredictable and unsupportable fault allocations turning the entire process into a crapshoot.
SPENCER, Presiding Justice, concurring.
I concur in the disposition only. (See Nola M. v. University of Southern California (1993) 16 Cal.App.4th 421, 439-442, 20 Cal.Rptr.2d 97, dis. opn. of Spencer, P.J.)