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Court of Appeal, Fourth District, Division 1, California.

Ann E. MILLER, Plaintiff and Appellant, v. PACIFIC PLAZA SHOPPING CENTER, et al., Defendants and Respondents.

No. D013547.

Decided: December 10, 1992

Carl M. Lewis, Lemish and Lewis, and Milton J. Silverman, San Diego, for plaintiff and appellant. Donald A. Vaughn, Mary Elizabeth DeVoy and McInnis, Fitzgerald, Rees, Sharkey & McIntyre, San Diego, for defendants and respondents.


The Original 60 Minute Photo Company, a photo processing service, leased a storefront in the Pacific Plaza Shopping Center owned and operated by defendants.1  Plaintiff Ann Miller was one of 60 Minute's employees at that location.   Shortly after Miller opened the store at 8:00 one morning, a man armed with a knife entered the store, attacked Miller behind the service counter and raped her.

Miller filed this complaint seeking to hold Pacific Plaza liable for her personal injuries.   She alleged Pacific Plaza was negligent in failing to provide adequate security at the shopping center which would have prevented the rape.

 The trial court granted summary judgment in favor of Pacific Plaza relying on Pacific's argument that it owed no legal duty to Miller.   We disagree with the rationale proffered by Pacific Plaza and accepted by the trial court.   Lessors of commercial property clearly owe a duty to tenants and their employees to maintain the leased premises and common areas in a reasonably safe condition.   This includes the duty to take reasonable precautions against foreseeable criminal activity by third persons.

As in most cases of this sort, the question is not whether a duty existed but whether the duty which existed was breached (i.e., was the defendant negligent) and whether any such negligence caused the plaintiff's injuries.   While issues of negligence and causation are normally factual inquiries not subject to resolution on summary judgment, we must nonetheless affirm the trial court's decision granting summary judgment if it can be said that no reasonable jury could find in favor of the plaintiff on one of these issues.   Here, the record before the trial court establishes no basis on which a jury could conclude that Pacific Plaza was negligent in failing to provide a security patrol.   Accordingly, we must affirm the judgment on this alternative ground.



Pacific Plaza frames the issue in this case as follows:  Does California law impose on lessors of commercial real property “responsibility for daylight assaults by unknown assailants, on leased premises, behind closed doors, and shielded from public view, in the absence of any demonstration of prior violent criminal activity on the premises, or the future likelihood of same[?]”  This statement of the issue reveals a great deal of the problem with Pacific Plaza's contention that it owed no legal “duty” to prevent Miller's injuries.

As we have noted earlier, “ ‘Duty’ analysis can be confusing and confused because courts employing two separate and distinct analytic processes nonetheless label both as involving questions of the defendant's ‘duty.’   One ‘duty’ inquiry used by some courts focuses on the reasonableness of the defendant's conduct.   Where a court determines that the plaintiff was injured in spite of the defendant's reasonable actions, it is sometimes stated that the defendant's duty did not extend to the prevention of the plaintiff's injury.   [Citations.]  [¶] The second ‘duty’ inquiry involves those ‘considerations of policy’ which on occasion lead courts to refuse to impose liability even when the plaintiff's injury was caused by the defendant's failure to act reasonably.”  (Marois v. Royal Investigation & Patrol, Inc. (1984) 162 Cal.App.3d 193, 198, 208 Cal.Rptr. 384.)   We went on to explain that most of the confusion is caused by labeling the first type of analysis a “duty” inquiry because it more accurately involves “whether an admitted duty has been breached or, more simply, whether the defendant was negligent.”  (Id. at p. 198, fn. 2, 208 Cal.Rptr. 384;  see also Duffy v. City of Oceanside (1986) 179 Cal.App.3d 666, 669–670 and fn. 3, 224 Cal.Rptr. 879.)

In a similar vein, the California Supreme Court has reflected its awareness of the confusion created by the concept of “foreseeability” as it relates to issues of duty and negligence.   In Ballard v. Uribe (1986) 41 Cal.3d 564, 224 Cal.Rptr. 664, 715 P.2d 624, the court cautioned:  “[A] court's task—in determining ‘duty’—is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.”  (Id. at p. 573, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624, emphasis in original.)

 In deciding that narrow question of legal “duty”, as opposed to the broader factual questions of negligence and causation, we must begin by assuming the defendant has acted unreasonably and proceed to analyze whether other policy considerations dictate a departure from the general rule that “all persons have a duty ‘ “to use ordinary care to prevent others being injured as a result of their conduct․” ’ ”  (Ballard v. Uribe, supra, 41 Cal.3d at p. 572, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624, quoting Rowland v. Christian (1968) 69 Cal.2d 108, 112, 70 Cal.Rptr. 97, 443 P.2d 561.)   Thus focused, the flaw in Pacific Plaza's argument becomes apparent.   The myriad of factors pointed to by Pacific in defining the issue all lead to the conclusion either that Pacific acted reasonably (i.e., was not negligent) or that anything it could have done would not have prevented Miller's injuries.

 That this is not a case of a limited legal “duty”—that is, policy considerations which restrict the liability of a presumably negligent defendant—is made clear when one considers that owners and possessors of commercial property have been repeatedly held responsible for their failure to take reasonable precautions to prevent criminal conduct by third persons.   (See, e.g., Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 211 Cal.Rptr. 356, 695 P.2d 653;  Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 205 Cal.Rptr. 842, 685 P.2d 1193;  Gomez v. Ticor (1983) 145 Cal.App.3d 622, 193 Cal.Rptr. 600.)   It is true that here Pacific is sued as a lessor of commercial space within the shopping center and the attack on Miller occurred within the leased premises in an area not subject to control by Pacific.   Miller contends, however, that it was Pacific's failure to provide adequate security in the common areas of the shopping center subject to its control which contributed to her injuries.   Such allegations provide a sufficient basis for the imposition of a legal duty.   In O'Hara v. Western Seven Trees Corp. (1977) 75 Cal.App.3d 798, 142 Cal.Rptr. 487, a residential landlord allegedly failed to provide adequate security in common areas and as a result, the plaintiff was raped inside her apartment.   The court explained, “[S]ince only the landlord is in the position to secure common areas, he has a duty to protect against types of crimes of which he has notice and which are likely to recur if the common areas are not secure.”  (Id. at pp. 802–803, 142 Cal.Rptr. 487;  accord Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 501, 229 Cal.Rptr. 456, 723 P.2d 573.) 2

Pacific relies heavily on this court's decisions in Lopez v. McDonald's Corp. (1987) 193 Cal.App.3d 495, 238 Cal.Rptr. 436 and Thai v. Stang (1989) 214 Cal.App.3d 1264, 263 Cal.Rptr. 202 but those cases are distinguishable.   Both involved particularly unusual third party criminal conduct (Lopez—massacre of restaurant patrons by suicidal maniac;  Thai—drive-by shooting) which would have been virtually impossible to prevent.   Here, as we later explain, the current state of the factual record leaves us uncertain how unexpected the attack was and whether it could have been prevented.   Significantly, in both Lopez and Thai this court concluded as a matter of law that any precautions which the defendant allegedly should have taken would not have prevented the attacks.  (Lopez, 193 Cal.App.3d at pp. 516–517, 238 Cal.Rptr. 436;  Thai, 214 Cal.App.3d at p. 1274, 263 Cal.Rptr. 202;  compare post, p. 276.)

Accordingly, we conclude summary judgment was inappropriately granted on the ground Pacific Plaza owed no legal duty to Miller.


Correctly observing that a legally proper summary judgment will not be reversed simply because the trial court articulated the wrong reason in granting the motion (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19, 112 Cal.Rptr. 786, 520 P.2d 10), Pacific Plaza argues that even if the court erred in its “duty” analysis, the motion for summary judgment was correctly granted because the record establishes as a matter of law that Pacific acted reasonably.   We agree.

 Miller's opposition to Pacific Plaza's motion included references to her deposition testimony and that of the manager of the 60 Minute store, Susan Clemens, explaining that the shopping center had become a congregating place for vagrants and homeless persons.3  Clemens called the police on two occasions to report suspicious persons loitering about the store.   Miller related that she was present at a number of meetings of the center merchants' association at which security problems were discussed.   The attendees at the meetings were told that Pacific Plaza had been informed about the general transient problem as well as various incidents including assaults and purse snatchings.

Despite extensive discovery, however, Miller was unable to offer any evidence to substantiate what she heard at the meetings or otherwise show that Pacific knew of security problems at the shopping center.   Indeed, Pacific Plaza officials submitted declarations stating they were unaware of any report of a rape or any similar violent crime occurring at the center before the assault on Miller.   Interrogatory responses clarify that Pacific had no record of any prior incidents of felony criminal activity at the shopping center dating back to December 31, 1982.

 An owner or operator of commercial property is only obligated to protect against foreseeable risks of injury to users of the property, which may include tenants and their employees, customers and the like.   Here there was no showing that the risks foreseeable to Pacific would have required that it institute a walking security patrol within the mall during daylight business hours.   Under these circumstances we can say as a matter of law that no reasonable jury could conclude Pacific Plaza acted unreasonably in failing to provide a security patrol.   In other words, Pacific Plaza was not negligent.   Accordingly, the trial court's decision to grant summary judgment was proper.


Judgment affirmed.

I concur in the result reached by the majority.   Pacific Plaza is not liable to Miller.   I nonetheless write separately to express my disagreement with the majority's thinly-veiled suggestion that as a general proposition landlords may be held liable for criminal conduct which occurs on premises leased to, and controlled by, a commercial tenant.   I also write separately to express my concern that in so concluding, the majority needlessly enters into disagreement with recent, clear decisions of this and other courts.

Initially I note the majority's decision to publish its discussion of Pacific Plaza's duty to Miller is unnecessary because the discussion lends no support to the result we reach here.   Our conclusion Pacific Plaza was not, as a matter of law, guilty of negligence is the sole reason which supports our judgment in this case.   I also note we are not remanding the matter for further proceedings.   Under these circumstances, the majority's discussion of a commercial landlord's duty to a tenant's employee has little, if any, precedential value.  (Compare United Steelworkers of America v. Board of Education (1984) 162 Cal.App.3d 823, 834–835, 209 Cal.Rptr. 16 [discussion of issue raised by a party, although not needed to support result, has precedential value where case was remanded and discussion was intended to guide parties and trial court on remand].)

In any event, my principal disagreement with the majority is that, having decided to address the duty issue raised by Pacific Plaza, the majority has failed to discuss whether Pacific Plaza's control over the shop where Miller was attacked was sufficient to give rise to an affirmative duty to provide security.   The failure to directly address the issue of control and its applicability to this case is a matter of no small significance.

The need to address Pacific Plaza's control over the shop premises is strongly suggested by Preston v. Goldman (1986) 42 Cal.3d 108, 118, 227 Cal.Rptr. 817, 720 P.2d 476, Leakes v. Shamoun (1986) 187 Cal.App.3d 772, 776–777, 232 Cal.Rptr. 171 (Leakes ), and Rosales v. Stewart (1980) 113 Cal.App.3d 130, 135, 169 Cal.Rptr. 660.   In Preston v. Goldman, supra, 42 Cal.3d at page 119, 227 Cal.Rptr. 817, 720 P.2d 476, the court stated:  “[W]e have placed major importance on the existence of possession and control as a basis for tortious liability for conditions on the land.”   In Leakes v. Shamoun, supra, 187 Cal.App.3d at pages 776–777, 232 Cal.Rptr. 171, this court held as a matter of law that a commercial landlord was not liable for a shooting committed by a security guard employed by his commercial tenant largely because of the limited control the landlord had over the security guard.   In Rosales v. Stewart, supra, 113 Cal.App.3d at page 134, 169 Cal.Rptr. 660, the court held that the landlord of a house could not be held liable for a shooting committed by his tenant because the plaintiffs could not show the landlord had “the opportunity and the ability to eliminate the dangerous condition being created by the tenant.”

Rather than fully consider the issue of Pacific Plaza's control over the premises where Miller was assaulted, the majority simply states “owners and possessors of commercial property have been repeatedly held responsible for their failure to take reasonable precautions to prevent criminal conduct by third persons.”  (Maj. opn., p. 274.)   Citing O'Hara v. Western Seven Trees Corp. (1977) 75 Cal.App.3d 798, 803, 142 Cal.Rptr. 487 (O'Hara ) and Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 501, 229 Cal.Rptr. 456, 723 P.2d 573 (Frances T.), the majority then finds Miller's allegations with respect to the defendants' control over the common areas of the shopping center “provide a sufficient basis for the imposition of a legal duty.”  (Maj. opn., p. 274.)   Under the majority's articulated rationale, a commercial landlord's control over common areas will always be sufficient to give rise to a legal duty with respect to crimes committed within leased premises.   I do not believe either O'Hara, Frances T. or this court's own decisions support such a sweeping proposition.

As the majority note, in O'Hara the defendant was the landlord of a residential apartment complex.   Unlike the majority, I do not believe this distinction can be ignored as one which involves the difficulty a plaintiff will have in demonstrating causation.  (See maj. opn. pp. 274–275, fn. 2.)   In discussing a landlord's affirmative duty to protect residential tenants in urban apartment complexes from criminal activity, the court in O'Hara noted the question was a matter of first impression in California.   In creating such an affirmative duty, the O'Hara court relied upon Kline v. 1500 Massachusetts Avenue Apartment Corp. (D.C.Cir.1970) 439 F.2d 477, 482–485 (Kline ), which had found such a duty by analogizing the relationship between urban landlords and tenants to the relationship between innkeepers and their guests.

The Kline court's analysis on this point I endorse and believe bears repetition here:  “Liability in the innkeeper-guest relationship is based as a matter of law either upon the innkeeper' supervision, care, or control of the premises, or by reason of a contract which some courts have implied from the entrustment by the guest of his personal comfort and safety to the innkeeper.   In the latter analysis, the contract is held to give the guest the right to expect a standard of treatment at the hands of the innkeeper which includes an obligation on the part of the latter to exercise reasonable care in protecting the guest.  [¶] Other relationships in which similar duties have been imposed include landowner-invitee, businessman-patron, employer-employee, school district-pupil, hospital-patient, and carrier-passenger.   In all, the theory of liability is essentially the same:  that since the ability of one of the parties to provide for his own protection has been limited in some way by his submission to the control of the other, a duty should be imposed upon the one possessing control (and thus the power to act) to take reasonable precautions to protect the other one from assaults by third parties which, at least, could reasonably have been anticipated.”  (Kline, supra, 439 F.2d at pp. 482–483, fns. omitted, emphasis added.)

In Frances T. the Supreme Court in large measure accepted this rationale in finding a condominium owners association's control over common areas sufficient to impose liability for a rape which occurred inside one of the condominiums:  “it is beyond dispute here that the Association, rather than the unit owners, controlled the maintenance of the common areas.   This is clearly illustrated by the fact that when plaintiff attempted to improve security by installing additional exterior lighting, the board ordered her to remove them because they were placed in an area over which the Association exercised exclusive authority.”  (Frances T., supra, 42 Cal.3d at p. 502, 229 Cal.Rptr. 456, 723 P.2d 573.)

In sum then, the questions posed in O'Hara, Kline and Frances T. have very little to do with the causation of particular injuries and a great deal to do with who will bear the economic risk of their occurrence.   Where the tenant does not have the ability to protect himself, these cases make it clear the risk of injury by criminals shifts to the landlord.   The critical question, left unanswered by the majority opinion, is whether Miller or her employer, the center tenant, have so limited their ability to provide for their own protection that we should shift the risk of injury by criminals to Pacific Plaza.   While the tenant's surrender of his ability to protect against crime is easy to see in residential settings, such as O'Hara, Kline and Frances T., I do not believe such a surrender may be generally presumed in all commercial settings where the tenants are contracting for profit rather than personal comfort or security.   Indeed the responsibility for providing security may in many instances be allocated to tenants under the particular terms of a commercial lease.

For this court the need to directly consider the commercial nature of the landlord-tenant relationship is acute.   In Donnell v. California Western School of Law (1988) 200 Cal.App.3d 715, 724, 246 Cal.Rptr. 199 (Donnell ), this court distinguished O'Hara precisely because the property owner in Donnell was not a residential landowner.   In Donnell the plaintiff was a law student who was stabbed walking from the law school to his car.   The stabbing occurred on city owned sidewalks immediately approaching the school.   In distinguishing O'Hara, we stated:  “O'Hara v. Western Seven Trees Corp., supra, 75 Cal.App.3d 798 [142 Cal.Rptr. 487], involved a landlord-tenant relationship not involved here.   Alleging she was raped in her apartment, plaintiff tenant sued her landlord for not providing adequate security and not warning her of the danger of rape.   The court held the plaintiff had stated a cause of action.   The court noted ‘the landlord-tenant relationship, at least in the urban, residential context, has given rise to liability under the circumstances where landlords have failed to take reasonable steps to protect tenants from criminal activity.  [Citations.]  It has been held that since only the landlord is in the position to secure common areas, he has a duty to protect against types of crimes of which he has notice and which are likely to recur if the common areas are not secure.’  (Id. at pp. 802–803 [142 Cal.Rptr. 487]. italics added.)   Cal Western's position was unlike the landlord's in O'Hara.   Here the city could remedy any dangerous condition of its sidewalk.”  (Donnell, supra, 200 Cal.App.3d at p. 724, 246 Cal.Rptr. 199;  see also Steinmetz v. Stockton City Chamber of Commerce (1985) 169 Cal.App.3d 1142, 1144, 214 Cal.Rptr. 405;  Southland Corp. v. Superior Court (1988) 203 Cal.App.3d 656, 666, 250 Cal.Rptr. 57;  Martinez v. Pacific Bell (1990) 225 Cal.App.3d 1557, 1563–1564, 275 Cal.Rptr. 878 [defendants' duty to provide security depends upon defendants' control over premises where torts occurred].)

Pacific Plaza's position was also unlike the landlord's in O'Hara.   Here Miller's employer could remedy any defects in its store's security.   Because a majority of this court in Donnell was clearly unwilling to extend O'Hara outside its residential confines, I believe the majority's opinion here is fatally deficient in failing to adequately explain why, in dicta, it is willing to do so now.

Accordingly, I concur only in the result reached by the majority.


1.   Defendants include the partnership which owns the shopping center, which goes by the same name as the center, and the La Jolla Development Co., a corporation hired to manage the center.   Defendants will be collectively referred to as “Pacific Plaza” or simply “Pacific.”

2.   Pacific seeks to distinguish O'Hara and Frances T. on the ground that the duty is limited to residential landlords.   The issue, however, is in reality one of causation rather than duty.   A commercial landlord—just as a residential landlord—has the “possession and control” of the common areas.  (See Preston v. Goldman (1986) 42 Cal.3d 108, 119, 227 Cal.Rptr. 817, 720 P.2d 476.)   Where the injury takes place within the leased premises, the plaintiff must demonstrate that the landlord's failure to adequately police common areas was a substantial factor in causing the plaintiff's damages.Contrary to our concurring colleague's comments, this court's decision in Donnell v. California Western School of Law (1988) 200 Cal.App.3d 715, 246 Cal.Rptr. 199 does not suggest a contrary result.   In Donnell, this court held that a school was not responsible for providing lighting on a dark city sidewalk adjacent to the school where a student was attacked.   Citing the exact language quoted above from O'Hara, the opinion concluded that “the city could remedy any dangerous condition of its sidewalk.”  (200 Cal.App.3d at p. 724, 246 Cal.Rptr. 199.)  Donnell might be analogous had the attacker come from inside the law school and the school's alleged negligence was in failing to properly patrol its own premises.   On the actual facts of the case, however, the Donnell holding is inapposite.   Here, there is no question that Pacific Plaza exercised exclusive control over the common areas of the shopping center through which Miller's attacker had to pass in order to commit the assault.   The question which remains is simply whether any alleged negligence by Pacific in patrolling those common areas can fairly be said to have caused Miller's injuries.   If Pacific chooses to argue that the lessee of the shop, 60 Minute Photo, was also negligent in failing to provide adequate security within the store, such an argument would be the proper subject of a cross-complaint.

3.   As we have noted, the assault here took place during regular business hours and Miller testified that the rapist “walked in just like a customer would walk in.”   As a result, much of the evidence concerning the nighttime transiency problem at the shopping center is of dubious relevancy in establishing the center's reasonable security needs during daylight business hours.   We have considered such evidence only to the extent it would show that a reasonable commercial landlord would have responded to the transiency problem by instituting daylight walking security patrols in the mall which might have prevented the assault here.   If that were the case, Pacific could be liable even though the man who assaulted Miller was not a transient.   It is well established that “[t]he foreseeability required is of the risk of harm․  In other words, the defendant may be liable if his conduct was ‘a substantial factor’ in bringing about the harm, though he neither for[e]saw nor should have for[e]seen the extent of the harm or the manner in which it occurred.”  (6 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, § 976, p. 367.)   Under the circumstances of this case, however, we conclude that the facts of which Pacific was or should have been aware did not establish the need for security patrols which would have prevented the assault on Miller.

WIENER, Acting Presiding Justice.

TODD, J., concurs.