Friday, June 1, 2001
Plaintiff Must Prove Lax Security Caused Injury on Premises—S.C.
By ROBERT GREENE, Staff Writer
A Federal Express courier, brutally assaulted at a crime-ridden Bellflower apartment complex, cannot take her injury suit to a jury since her assailants got away and left her unable to establish that lax security led to the assault, a sharply divided state Supreme Court ruled yesterday.
Plaintiff Marianne Saelzler had a good case that owners of the Sherwood Apartments owed her a duty of care and breached it by failing to keep gates locked and guards posted at the embattled 28-building complex, Justice Ming W. Chin wrote for the four-judge majority.
But without arrests or identifications of the assailants, Chin said, Saelzler could not prove that she was the victim of outsiders breaking into the complex, so she could not prove that security measures would have protected her, Chin said.
The ruling strongly favors owners of apartments and other businesses in high-crime areas who face tort liability when residents or visitors are victimized by criminals on their premises.
The case has been watched closely by administrators of colleges and universities, who say they face crippling liability arising out of attacks on students on urban campuses. Amicus briefs were filed on the defendant’s behalf by USC, the University of California, California State University, Stanford, Caltech, Loma Linda and Pepperdine, in addition to a host of insurance companies.
In the 22-page opinion, Chin focused on policy questions facing jurists who must balance the financial burdens imposed on business owners with the right to compensation by people injured because of inadequate protections on the property.
“[T]he ultimate costs of imposing liability for failure to provide daytime security to prevent assaults would be passed onto the tenants of low cost housing in the form of increased rents, adding to the financial burden on poor renters,” Chin wrote.
The ruling overturned this district’s Court of Appeal and reinstated the holding of Los Angeles Superior Court Judge Chris R. Conway.
The 300-unit apartment complex has been notorious for criminal activity, and employs night guards but not daytime security personnel.
In the year prior to the assault, Bellflower law enforcement logged 41 trespass reports, 45 instances in which perimeter gates and fences were breached, and numerous instances of gunshots, robberies, rapes and other assaults. Evidence was presented that a youth gang had its headquarters in one of the buildings and used it for drug deals.
The facility is considered so dangerous that pizza delivery services refuse to enter. Residents who want their pizza must meet the driver on the sidewalk.
The complex’s apartment manager had a standing order with security guards to escort her to her car whenever she went out.
Saelzler produced an expert who testified that the attack would not have happened had there been daytime security.
The trial court found a “high foreseeability” of violent crime on the premises, and a resulting duty by the apartment owners to increase security beyond what they had.
But summary judgment was granted because the plaintiff could not show that the security would have prevented her particular assault.
The Court of Appeal majority held that the failure to provide security under such dire circumstances shifted the burden of proof to the defendant to show that the attack would have happened even if there was security.
Chin disagreed, saying the evidence showed the owners at least tried to keep the gates in good repair and that they provided security at night, when it was needed most.
But even if they hadn’t done so, he said, the burden could not be shifted the way the Court of Appeal did it.
“No matter how inexcusable a defendant’s act or omission might appear, the plaintiff must nonetheless show the act or omission caused, or substantially contributed to, her injury,” he said.
And given the fact that there was so much crime on the premises already, he said, including possibly a gang operating from inside, Saelzler could not show that more security, keeping out anyone without authority to be there, would have helped her.
“Put another way, she was unable to prove it was ‘more probable than not’ that additional security precautions would have prevented the attack,” he said.
Chin was joined by Chief Justice Ronald George and Justices Marvin Baxter and Janice Rogers Brown.
The opinion drew a sharp dissent from Justice Joyce Kennard, who said the majority bent the rules of summary judgment and the legal causation element of negligence to reach the result. The majority in effect imposed a burden of establishing “causation with certainty” on summary judgment motions when such a standard is not even required at trial, she said.
“The holding places a virtually insurmountable barrier in the path of any plaintiff seeking to recover damages for injuries allegedly suffered as a result of a property owner’s unreasonable failure to provides security to protect against foreseeable third party criminal acts,” the justice said.
Justice Kathryn Werdegar joined Kennard, but also offered her own, even sharper, dissent, joined by Justice Stanley Mosk.
The question of whether the security lapses were severe and whether they led to the plaintiff’s injuries were factual issues meant for a jury, Werdegar said.
She also took issue with Chin’s policy focus on the cost to low-income tenants of beefing up security.
“The majority does not mention the economic cost to tenants of allowing crime to flourish,” Werdegar said, adding:
“But even assuming the relevance of the assertion…I am unwilling to assume that California renters, of whatever economic status, would elect to live in circumstances where they and their guests are subject to constant fear and, as in this case, the actuality of rampant crime and violent assault, in preference to a marginal upward pressure on rents.”
The justice also called it “both cruelly ironic and legally unjustified” that the plaintiff’s tort case should fail because the assailants were never caught.
Saelzler was represented by the law offices of Theodore Wolfberg and the Law Offices of Michael Paul Thomas. The defendants were represented by Priscilla F. Slocum of Early, Maslach, Price & Baukol.
The case is Saelzler v. Advanced Group 400, 01 S.O.S. 2550.