As developers and owners of multiple unit residential rental property are acutely aware, there has been substantial litigation in California in regard to a property owner’s legal duties and responsibilities for injuries occurring as a result of serious criminal activity. Given that the tort claimant’s damages are often significant in cases involving serious criminal activity, liability to the property owner can be substantial and can pose a significant risk to the property owner’s interest.

Under settled statute and case law, see, Civil Code section 1714(a) (statute which provides statutory duty of ordinary care or skill in the management of property) and Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673 (a more recent California Supreme Court case which discussed tort liability of commercial property owners for injuries resulting from serious criminal activity), it has been generally held that a property owner can be liable for criminal activity if such activity was reasonably foreseeable and the property owner’s conduct in failing to prevent the serious criminal activity from occurring was a proximate cause of the injuries suffered by the tort claimant. Even so, as set forth in the Ann M. v. Shopping Plaza decision, which involved commercial landlords, it has been generally the view that, absent strong public policy reasons for preventing harm or evidence that harm can be prevented by simple means, a high degree of foresee ability is required to find a landlord’s duties to include, for instance, the hiring of a security guard and that the requisite degree of foresee ability is rarely found where there were no prior similar incidents involving serious criminal activity. See, also, Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112 and Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181.

However, two recent appellate level cases, one issued in May of 2004 and the other this past month, appear to demonstrate that the appellate courts are taking a somewhat expansive view of what serious criminal activity can be considered to be foreseeable and what actions (or inactions) by the property owner may trigger a legal duty to an injured tort claimant for such criminal activity.

In Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 279-280, the Fourth District Court of Appeal reversed the trial court’s grant of summary judgment in favor of a property owner who had been sued by the survivors of a tenant who had been murdered by her estranged boyfriend. In that case, the apartment in question (located in San Diego County) had been rented to the parents of the decedent, a young woman of unspecified age. A few days prior to her death, the decedent had moved into the subject apartment to live with her parents and infant child after having an argument with her boyfriend. The young woman was murdered when her estranged boyfriend later broke into the subject apartment gaining access through a broken window pane located in the upper portion of the front door of the apartment. The boyfriend testified that he would not have put his hand through the glass panel in the door due to risk of injury and would have waited until the decedent emerged from the apartment if the missing window pane had been replaced with a glass pane.

The property owner, in filing its motion for summary judgment, argued that the criminal act of breaking into the apartment and murder of the decedent was not foreseeable and the property owner’s conduct, in any event, could not be considered a legal cause of the decedent’s murder. The property owner relied on a number of issues, including evidence that the estranged boyfriend was not known to be violent, its assertion that the missing window pane did not create a substantial risk of injury and its assertion that the estranged boyfriend’s murder of the decedent was a superceding cause of the decedent’s murder.

The trial court agreed and granted summary judgment.

On appeal, applying Ann M. v. Pacific Shopping Plaza, the Fourth District Court of Appeal focused on the fact that the missing/broken window pane was the subject of a tenant complaint and also focused on the fact that the decedent’s brother, after the property owner had failed to replace the window pane, had installed plywood with finishing nails as a temporary measure. The Court also noted that the property manager for the property owner had even purchased the materials necessary to effect the replacement of the missing window pane about 30 days before the decedent was murdered. Based on the facts presented to it, the Court of Appeal concluded that while duty is a legal issue, there were sufficient facts to require a jury trial on whether the boyfriend’s conduct was foreseeable and whether the replacement of the window pane was a substantial factor in the decedent’s murder.

In another case, Castaneda v. Olsher (2005) 2005 Daily Journal D.A.R. 11,052, issued on September 7, 2005, the Fourth District Court of Appeal reversed the grant of nonsuit after the close of the plaintiff’s evidence in a case involving the shooting injury of a 17 year old male at a mobile home park in Imperial County. In that case, the plaintiff suffered a gunshot wound when he was hit by a stray gunshot which was fired in front of a mobile home located adjacent to the mobile home the plaintiff had been residing at with his grandmother and sister. The trial court granted nonsuit to the mobile park owner given the fact that the incident had occurred at approximately 2:00 a.m. after the plaintiff had returned from a party with certain friends, the plaintiff had been outside his mobile home when a stray shot was fired by a local gang member who was visiting or lived at a mobile space located nearby and there were no owner employees of the property owner involved in the incident.

The Court of Appeal reversed, finding the case should go to the jury based upon the fact that there had been two prior gang related shooting incidents, that the mobile park owner had been advised that he was renting to persons who were known to be members of organized criminal gangs and because there had been complaints of lack of lighting and requests for curfews by other residents. The Court of Appeal ruled that the issues involving warning the residents of gang activity, additional security measures and additional light fixtures should be decided by the jury.

The Vasquez and Castaneda cases provide fodder to plaintiff counsel in arguing a broad scope of foresee ability and legal duty in preventing harm from serious criminal activity for property owners. In light of this, property owners are well advised to respond with specific documentation to repair requests which involve increased potential for harm resulting from serious criminal activity. Also, property owners who are made aware of gang activity may wish to consider posting warning signs and/or disclaimers of liability.

Note: The legal article presented above is intended to provide general information that may be of interest or use to clients and colleagues of Lewis Brisbois Bisgaard & Smith LLP and should not be construed as legal advice on any matter.