PHILLIPS v. PERILS OF PAULINE FOOD PRODUCTION INC

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

Joseph PHILLIPS et al., Plaintiffs and Respondents, v. PERILS OF PAULINE FOOD PRODUCTION, INC., Defendant and Appellant.

No. D017359.

Decided: June 21, 1995

Jack H. Kaufman, Sherman Oaks, for plaintiffs and respondents. Chapin, Fleming & Winet, Edward D. Chapin, Shirley Banner Gauvin, Vonnie L. Hansen, Aiken & D'Angelo and James A. D'Angelo, San Diego, for defendant and appellant.

Perils of Pauline Food Production, Inc., a California Corporation, d.b.a. Saska's (Saska's) appeals a judgment entered after a jury found it had breached its duty to take reasonable security measures to protect the safety of its customer Joseph Phillips, a victim of an assault and battery, while using Saska's parking lot located approximately 234 feet from the restaurant and provided exclusively for its customers.   Saska's contends:  (1) it owed no duty to Phillips and is not liable for injuries or damages claimed by him;  (2) if such a duty existed, Saska's could not have breached it because the attack was unforeseeable and its nonfeasance was reasonable under the circumstances;  (3) there is no causal link between Saska's nonfeasance and Phillips's injuries;  and, (4) the trial court prejudicially erred in allowing an opinion and documentary evidence of subsequent criminal activity.

By published opinion (Phillips v. Perils of Pauline Food Production, Inc. (1994) 27 Cal.App.4th 1512, 33 Cal.Rptr.2d 371), this court held Saska's had a duty to take reasonable security measures to protect Phillips' safety while using its parking lot as a matter of law;  substantial evidence supported the jury's verdict Saska's breached that duty and that its nonfeasance proximately caused Phillips's injuries;  and any error in allowing documentary evidence of subsequent criminal activity was harmless.

On November 23, 1994, the Supreme Court granted Saska's petition for review and transferred the matter to us with directions to vacate our decision and to reconsider the cause in light of Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 25 Cal.Rptr.2d 137, 863 P.2d 207.   Upon reexamination, we conclude the holding in Ann M. does not affect our original disposition of the cause because Saska's was on constructive notice of prior similar incidents rendering Phillips's assault reasonably foreseeable and giving rise to a duty to provide reasonably adequate measures to prevent such harm to its patrons.   Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Saska's operates a restaurant located in San Diego's Mission Beach area.   At approximately 1:45 a.m. on September 26, 1990, Phillips was assaulted and beaten by three men while retrieving his car from the parking lot provided and controlled by Saska's exclusively for its patrons.   For many years, Saska's encouraged late night dining and drinking through advertising.   It is one of only a few restaurants in San Diego County which serves meals as late as 3 a.m. and alcoholic beverages as late as 2 a.m.   In spite of its late hours of operation and knowledge its patrons used its parking lot after midnight while it was still serving food and beverages to customers, the only security measures it had taken during the years before the assault were to have the parking lot paved, bumper-guards installed and one light in the rear of the parking lot installed in addition to a street light along the peripheral of the street.   The restaurant and parking lot were surrounded by a mixed residential business area in which all the surrounding businesses were usually closed by midnight.

Phillips had regularly patronized Saska's for several years before the assault, always using Saska's parking lot, and often late at night with no incidents.   He was a member of the San Diego Chargers football team.   Saska's solicited him to patronize the restaurant because it believed it was good for business to have professional football players as patrons.

The incident began as a mere exchange of words between the assailants in a car and Phillips's female acquaintance while they were walking to the parking lot from Saska's restaurant, gradually escalating in verbal intensity until Phillips reached his car in the parking lot.   The assailants drove their car into the parking lot and one of them got out and continued the verbal exchange with Phillips and his female acquaintance.   The assailants momentarily backed their car out of the lot, then reentered the lot, got out of their car and again exchanged words.   The assault then began and extended over several minutes during which Phillips was struck to the ground, sustained numerous blows by both fists and feet, and suffered substantial injuries.   Phillips delivered no blows to the assailants.   His female companion was also struck to the ground.   The assailants then kicked and punched in all the windows and door panels on Phillips's rental car.   The assault ended when a neighbor heard the commotion and went to investigate.   Upon seeing the woman struck, the neighbor intervened, was hit and chased by one of the assailants.   After retrieving a bat from his house, the neighbor returned some 30 seconds later to break up the assault, but the assailants had fled.   As a result of the battery, Phillips required two artificial plates of titanium and silicone to be placed permanently in his head.

On February 8, 1991, Phillips sued Saska's and the three assailants.   After Saska's answered and cross-complained for comparative indemnity and declaratory relief against Phillips and the remaining defendants, judgment was entered against two of the assailants on December 16.   At a later trial, the jury returned a special verdict assessing 10 percent of the liability for the incident upon Saska's and 30 percent on each of the assailants.   The jury awarded Phillips $250,000 for past pain and suffering;  $250,000 for future pain and suffering;  $61,310 for past medicals;  $61,000 for future medicals;  and $170,000 for past loss of earnings.   Punitive damages were assessed at $32,000 against the third assailant.   Judgment was entered against Saska's in the amount of $342,310, and against the third assailant in the amount of $834,310 plus attorney's fees of $49,459.1  Costs of $6,607.84 were to be jointly and severally shared by all defendants.

Saska's motions for judgment notwithstanding the verdict and for new trial were denied.

Trial evidence revealed that in 1990, Saska's and its parking lot were located in a crime census track which was conceded by Saska's to be a high crime area.   The 1990 crime statistics of the San Diego Police Department records showed the Mission Beach census track to be one of the highest areas of crime against the person, i.e., aggravated assault, in San Diego County, in the top 20 of 208 San Diego County census tracks and well above the FBI average for aggravated assaults.   Saska's security expert at trial conceded the crime rate in the Mission Beach census track was increasing dramatically during the years before the Phillips assault, in fact almost doubling, and that the census track in which Saska's and its parking lot were located was higher in crime than the San Diego County average.

Before Phillips's assault, Saska's provided no additional nighttime security for patrons using the parking lot, such as a valet parking attendant, a parking attendant, closed-circuit camera or other means to communicate between the parking lot and the restaurant.   Saska's had provided a parking attendant during daylight hours only for several summers before the assault in order to keep “beach goers” out of the parking lot.   While there had never been a reported assault in the parking lot itself before the Phillips assault, Saska's expert acknowledged there had been several assaults and batteries and crimes against the person in the immediate vicinity between Saska's and the parking lot in the three-year period before the incident and several dozen crimes against property.   In addition, during the approximately 13 years before the assault, one neighbor who lived and worked adjacent to the parking lot had observed, essentially on a monthly basis, assaults and batteries including fights, weapons drawn, and other disturbances involving vandalism, broken bottles, people screaming and drunk in Saska's parking lot late at night.   Although he knew the owners of Saska's, the neighbor never discussed the assaults with them and they never inquired of him regarding what was happening in the lot.   A married couple who lived next door to the parking lot had heard hostile disturbances emanating from there on a regular basis, had complained to Saska's management about after midnight hostile disturbances on at least four separate occasions within the two years before Phillips was assaulted only to encounter an uncooperative attitude from management who did not respond to their complaints.2

Newport Annie's, another restaurant in the Mission Beach area, served food and alcoholic beverages as late as 11 p.m. and 2 a.m. respectively.   Located within two blocks of Saska's, it also has a parking lot of similar size open until 11 p.m., separated by some walking distance from the restaurant itself, for which since 1989 it has provided a parking attendant during the hours it is open for dining.   During that time, Newport Annie's never experienced any criminal assaults or other crimes against its customers while using its parking lot.   Saska's manager knew Newport Annie's employed a parking attendant at night.   As Saska's security manager, he had been aware of assaults in the general Mission Beach area before the Phillips assault, as well as gang activity during the prior summer.

At the time of the Phillips assault, Saska's had a policy its managers and employees would go to the assistance of customers in distress in the parking lot or restaurant.   There were five employees on duty at the time of the incident, including the manager.   The parking lot was within a one to three minute walk from the restaurant.

Immediately before the incident, Phillips had been seen by Saska's manager to be acting in a normal, nonhostile manner.   He had consumed food and shared one alcoholic beverage for approximately 30 to 40 minutes.   He did not appear to need assistance in exiting the restaurant,3 although on another occasion Saska's manager had provided assistance to him in departing from Saska's after drinking in the late evening hours.

Phillips's security expert at trial concluded Saska's parking lot at the time of the assault was in an unreasonably dangerous condition for use by customers such as Phillips in the late night and early morning hours and that security measures were not reasonably adequate.   He testified additional specific security measures should have been taken to reduce or deter the threat of criminal assault and battery such as suffered by Phillips, including a valet parking lot attendant, a parking lot attendant, enhanced lighting, a fence and/or a closed-circuit television monitor.

AS A MATTER OF LAW SASKA'S HAD A DUTY TO PROTECT PHILLIPS AGAINST REASONABLY FORESEEABLE HARM

 Saska's contends as a matter of law it had no duty to protect Phillips against random criminal acts by unknown third parties.   Citing Lopez v. McDonald's Corp. (1987) 193 Cal.App.3d 495, 504–505, 238 Cal.Rptr. 436, Saska's acknowledges that any “duty” analysis begins with the fundamental policy embodied in Civil Code section 1714, providing liability for injuries to another caused by one's failure to exercise ordinary care under the circumstances and that “[t]he special relationship between a business establishment and its customers as a matter of law places an affirmative ‘duty’ on the proprietor to take reasonable precautions to protect patrons from reasonably anticipative criminal conduct of unknown third parties.”   However, Saska's asserts it could not have reasonably anticipated the criminal conduct which occurred in this case.   Further, Saska's argues the factors listed in Rowland v. Christian (1968) 69 Cal.2d 108, 113, 70 Cal.Rptr. 97, 443 P.2d 561, warrant limiting liability as a matter of law under the circumstances of this case.   As we shall explain, we conclude as a matter of law liability should not be precluded here.

As explained in Lopez v. McDonald's Corp., supra, 193 Cal.App.3d at pages 506–507, 238 Cal.Rptr. 436, the question of “duty” is one of law decided by the court which applies the Rowland analysis of landowner liability of weighing the foreseeability of harm with a non-exhaustive list of other factors and policy considerations to determine whether liability should be restricted under the factual circumstances of the case at hand.

“Within this analysis, the ‘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.’  [Citation.]   Viewed in this light, the question of foreseeability in a ‘duty’ context is a limited one for the court, and readily contrasted with the fact-specific foreseeability questions bearing on negligence (breach of duty) and proximate causation posed to the jury or trier of fact.  [Citation.]”  (Lopez v. McDonald's Corp., supra, 193 Cal.App.3d at p. 507, 238 Cal.Rptr. 436, fns. omitted.)

Thus, foreseeability is but one factor to be weighed in determining whether a landowner or business establishment owes a duty in particular cases and is an elastic factor within a somewhat flexible concept.  (Id. at p. 509, 238 Cal.Rptr. 436.)   We review the totality of circumstances including the nature, condition and location of Saska's premises in light of the firmly established rule that “what is required to be foreseeable is the general character of the event or harm ․ not its precise nature or manner of occurrence.  [Citations.]”  (Id. at p. 509, 238 Cal.Rptr. 436.)   Finally, in determining whether any departure is made from the fundamental principle of liability, we balance the foreseeability of harm to the plaintiff with other factors, including

“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.  [Citations.]”  (Rowland v. Christian, supra, 69 Cal.2d at pp. 112–113, 70 Cal.Rptr. 97, 443 P.2d 561;  Becker v. IRM Corp. (1985) 38 Cal.3d 454, 467, 213 Cal.Rptr. 213, 698 P.2d 116;  Lopez v. McDonald's Corp., supra, 193 Cal.App.3d at p. 505, 238 Cal.Rptr. 436.)

In Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at pages 676–679, 25 Cal.Rptr.2d 137, 863 P.2d 207, the Supreme Court held a shopping center had no duty to provide roaming security guards under the facts presented.   Its analysis revisited its abandonment of the “prior similar incidents” rule in Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 126, 211 Cal.Rptr. 356, 695 P.2d 653.   While acknowledging the scope of duty is determined in part by balancing the foreseeability of harm against the burden of the duty to be imposed, the Supreme Court in effect resurrected the “prior similar incidents” rule by holding:

“While there may be circumstances where the hiring of security guards will be required to satisfy a landowner's duty of care, such action will rarely, if ever, be found to be a ‘minimal burden.’   The monetary costs of security guards is not insignificant.   Moreover, the obligation to provide patrols adequate to deter criminal conduct is not well defined.  ‘No one really knows why people commit crime, hence no one really knows what is “adequate” deterrent in any given situation.’  [Citation.]   Finally, the social cost of imposing a duty on landowners to hire private police forces are also not insignificant.  [Citation.]   For these reasons, we conclude that a high degree of foreseeability is required in order to find the scope of a landlord's duty of care includes the hiring of security guards.   We further conclude that the requisite degree of foreseeability rarely, if ever, can be proven in the absence of prior similar incidents of violent crime on the landowner's premises.   To hold otherwise would be to impose an unfair burden on landlords, and in effect, would force landlords to become the insurers of public safety contrary to well-established policy in this state.  [Citations.]”  (Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 679, 25 Cal.Rptr.2d 137, 863 P.2d 207, fn. omitted.)

The Supreme Court thus essentially relegated the weight of the remaining Rowland factors to be balanced against foreseeability of harm in the absence of prior similar incidents of violent crime on the specific premises or on the premises of a substantially similar business establishment within the immediate proximity.  (Id. at pp. 679, fn. 7, 25 Cal.Rptr.2d 137, 863 P.2d 207.)   In other words, foreseeability constitutes more than simply one of the Rowland considerations;  for, if the court concludes the injury was not foreseeable, there is in fact no duty as a matter of law, rendering the evaluation of the remaining considerations unnecessary.  (Sturgeon v. Curnutt (1994) 29 Cal.App.4th 301, 306, 34 Cal.Rptr.2d 498.)

In Pamela W. v. Millsom (1994) 25 Cal.App.4th 950, 958–959, 30 Cal.Rptr.2d 690, a different panel of this court interpreted the holding of Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th 666, 25 Cal.Rptr.2d 137, 863 P.2d 207, as simply not being limited to the duty of a large shopping center to provide security guards, but defining a foreseeability standard by which to evaluate in a comparative context, the foreseeability required to warrant imposing a duty to provide additional security measures upon a landowner or business establishment.   Within the context of a tenant who was raped in her condominium unit located in a small four-unit, two building project suing her landlords and condominium association for negligence, the court in Pamela W. v. Millsom, supra, 25 Cal.App.4th at page 959, 30 Cal.Rptr.2d 690, affirmed a summary judgment finding her rape was not reasonably foreseeable to warrant imposing a duty on defendants to protect her from such third-party criminal conduct.   The court reasoned:

“If a ‘high degree of foreseeability is required’ in order to find a shopping center landlord's duty of care includes hiring a security guard [citation], then necessarily a similar ‘high degree of foreseeability’ must be required to find in the case that either the individual landlord or the four-member condominium association has a duty of care which includes ‘hardening’ of the rendered premises to become essentially entry-proof.”

Guided by the foregoing, we conclude as a matter of law the trial court correctly imposed a duty on Saska's to provide adequate security for its customers who use its exclusive parking lot, given the reasonable foreseeability in a general context of this risk of harm and that a review of the Rowland factors do not warrant limiting liability here.   As to foreseeability, it is settled Saska's is obliged to take reasonable steps to secure its premises against reasonably anticipated criminal conduct of third parties likely to occur in the absence of such precautionary measures.   Granted, the record lacks evidence Saska's had actual knowledge of any prior similar incident on its premises or in the immediate proximity at a substantially similar business establishment.   However, the record supports a reasonable conclusion Saska's was on notice and in fact had constructive knowledge of prior similar incidents.   In other words, the record shows Saska's reasonably should have known it was exposing late-night patrons using its exclusive, off-site parking lot to the type of harm which befell Phillips.

Two neighbors, a married couple, residing immediately adjacent to the parking lot heard hostile disturbances regularly emanating from there and several times had telephonically complained to Saska's management regarding these late night disturbances, all within two years of Phillips's assault.   Saska's expert conceded Saska's management should have investigated the neighbors' complaints.   Had a diligent investigation been conducted, at minimum Saska's would have learned of the frequency of hostile disturbances occurring in its parking lot.   In all probability, had those complaints been diligently investigated, Saska's would have learned that another resident and business owner adjacent to the parking lot had seen fights occurring in the parking lot on numerous occasions, approximately once a month at night, and had seen weapons displayed and damage to property in the parking lot.

Where a business establishment or a landlord is on notice of conduct or circumstances which potentially create a reasonable risk of harm to others using its premises for its intended purpose, that landlord or business establishment has a duty to investigate.   Where that investigation would in all probability lead to the discovery of prior similar incidents to the occurrence giving rise to this litigation, the rule requiring knowledge of prior similar incidents does not compel a finding of no reasonable foreseeability.   Constructive knowledge of such incidents is sufficient.   To conclude otherwise would encourage and reward “ostrich” behavior by landowners and businesses and permit the “prior similar incidents” test to defeat the legitimate public policy of encouraging landowners and business establishments to take reasonable investigatory measures to discover whether further security measures are necessary to protect those using its premises from discoverable, and thus reasonably anticipatable, risks of harm.

Within the context of a duty analysis, foreseeability of harm to Phillips is further compelled by the “especial temptation and opportunity for criminal misconduct” which an unattached self-parking lot located 234 feet from the restaurant premises creates given its location within a high crime area and the operating hours of the restaurant.   The record is replete with evidence the Mission Beach area in which the restaurant and parking lot are located was a high crime area at the time of the Phillips assault, a characterization conceded by both Saska's security expert and counsel.   In fact, the Mission Beach area was in the top 10 or 15 of some 208 crime districts in San Diego in terms of crime and, particularly aggravated assault.   Saska's manager was well aware of assault and batteries occurring in the Mission Beach area, and that several months before the Phillips assault there had been gang activity in the Mission Beach area.   Granted, “random, violent crime is endemic in today's society.   It is difficult, if not impossible to envision any locale open to the public where the occurrence of violent crime seems improbable.”  (Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 678, 25 Cal.Rptr.2d 137, 863 P.2d 207.)   However, unlike Pamela W. v. Millsom, supra, 25 Cal.App.4th at page 957, 30 Cal.Rptr.2d 690, the probative value of a high crime area is of significance here within the context of reasonable foreseeability of harm in a duty analysis, because Saska's was fully aware its restaurant and unattached self parking lot were located in a high crime area through which it required its patrons to trek late at night when the majority of other business establishments in the community were closed.   This route through a high crime area, traveled late at night by Saska's patrons, enhanced the foreseeability that they could fall prey in a setting creating “an especial temptation and opportunity for criminal misconduct.”  (See generally, Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 680, fn. 8, 25 Cal.Rptr.2d 137, 863 P.2d 207;  Cohen v. Southland Corp. (1984) 157 Cal.App.3d 130, 141, 203 Cal.Rptr. 572;  Gomez v. Ticor (1983) 145 Cal.App.3d 622, 628, 193 Cal.Rptr. 600.)   We reiterate, it is undisputed that Saska's was one of a minority of restaurants that served dinner and drinks until 3 a.m. and 2 a.m. respectively and the parking lot was provided for its customers' exclusive use at night.   Saska's was fully aware the other businesses in the area were closed in the early morning hours, increasing the reasonable foreseeability its late evening patrons could encounter criminal misconduct during the trek from the restaurant to the unattended parking lot.   Consequently, the trial court correctly determined in a general context Phillips's injuries were reasonably foreseeable because the category of negligent conduct at issue is sufficiently likely to result in the harm he experienced.

The remaining Rowland factors also support the imposition of duty here.   More precisely, regarding moral blame attached to Saska's conduct, a trier of fact could reasonably infer Saska's management ignored repeated warnings from neighbors who complained of hostile disturbances within the parking lot and did not conduct a reasonably diligent investigation.   Had it done so, it is likely to have disclosed the numerous incidents of criminal misconduct occurring in or near the parking lot and the reasonably foreseeable nature of the risk of harm.   Granted, the concept of moral blame attaching to Saska's nonfeasance may be considered weak in the context of third-party criminal conduct.  (See Thai v. Stang (1989) 214 Cal.App.3d 1264, 1273, 263 Cal.Rptr. 202;  Lopez v. McDonald's Corp., supra, 193 Cal.App.3d at p. 512, 238 Cal.Rptr. 436.)   However here, an assaultive crime was of the general nature reasonably anticipated from the substantial evidence of criminal misconduct previously occurring in the parking lot itself, Saska's constructive knowledge of such prior similar incidents and the general high violent crime rate in the area within which Saska's expected its patrons to walk between the restaurant and lot late at night.   Consequently, moral blame may attach to nonfeasance occurring despite constructive notice of the impending nature of the risk of harm involved.

The degree of certainty Phillips suffered injury is undisputed;  however, Saska's challenges the closeness of the connection between its conduct and Phillips's injuries.   But, the record amply supports a finding of a sufficient causal nexus between Saska's nonfeasance and Phillips's resulting injuries, where reasonable precautions could have likely deterred the assailants or protected Phillips from harm.   Phillips's expert opined Saska's security measures were inadequate and the parking lot was in a dangerous condition for use by patrons late at night at the time of the Phillips assault.   He suggested such security measures as a parking lot attendant or a parking valet, measures which could have deterred or reduced the injuries suffered by Phillips.   Indeed, by providing a parking valet and door-to-door service between the restaurant and the parking lot, Saska's could have furnished the necessary protection for its patrons not by going to their aid if they were attacked by criminals, but rather by obviating the possibility of such attack in that the attendant parks and retrieves the patrons' cars relieving them of the need to walk to or be in the lot.  (Onciano v. Golden Palace Restaurant, Inc. (1990) 219 Cal.App.3d 385, 394, fn. 1, 268 Cal.Rptr. 96.)   Thus, considering the incident and how it gradually evolved with these specific security measures Saska's could have employed, a reasonable inference of a close connection exists between Saska's nonfeasance and the injuries suffered by Phillips.

Under the circumstances here, a strong public policy of preventing future harm to patrons using business-provided parking lots exists, particularly late at night.  “The potential physical harm and loss of property such patrons are likely to suffer at the hands of criminals outweigh the social value of keeping defendant's parking lot open to customers dining in its restaurant at night if security measures are not taken to protect those customers.”  (Id. at p. 394, 268 Cal.Rptr. 96.)   It would not be unduly burdensome to Saska's to provide protection.   The record establishes a close-by competing restaurant, Newport Annie's, had always provided a parking attendant for its separated parking lot during dining hours and had experienced no assaultive incident.   The projected cost of providing a parking attendant or valet parking services amounted to less than 1 to 3 percent of Saska's average daily revenue based upon the revenue projections made by Saska's manager.4  Finally, the availability, cost and prevalence of insurance for the risks involved here militate in favor of imposing liability, not restricting it.

The facts underlying Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th 666, 25 Cal.Rptr.2d 137, 863 P.2d 207, are distinguishable from those circumstances of this case.   In Ann M., the landlord had a standard practice of recording incidents of violent crime where here Saska's restaurant owner ignored repeated complaints of hostile disturbances from neighbors occurring in the parking lot and failed to diligently investigate those complaints, an omission Saska's own expert admitted was improper.   Further, Ann M. involved a daytime rape of an employee of a tenant within the shopping center causing plaintiff to argue the landlord should have hired roaming security guards, while here the corrective security measures advocated included a parking valet, parking attendant or closed circuit television monitor, any one of which would have in all probability prevented or reduced the risk of harm to Phillips.   Even in a comparative context considering the character of the business establishment involved (see Pamela W. v. Millsom, supra, 25 Cal.App.4th at p. 959, 30 Cal.Rptr.2d 690), each suggested measure represented a minimal burden in light of the generally foreseeable risk of physical harm presented.   In addition, in Ann M., the prior incidents were not similar to the violent assault the victim suffered, while here the Phillips assault was similar to discoverable prior incidents.   In fact, the Phillips assault and battery which started out as a verbal exchange and gradually escalated to physical violence over a period of time constituted a pattern of conduct which security measures could be most effective.   A jury could readily find the incident could have been easily diffused before it came to violence by a parking attendant, by the five restaurant personnel on duty alerted by a closed-circuit television camera being monitored, or by eliminating the risk completely by the use of a parking valet.   Finally, the constructive notice aspect of the case here provides the necessary “particularized information” satisfying the “refined” prior similar incidents rule in Ann M.

Similarly, this court's decision in Pamela W. v. Millsom, supra, 25 Cal.App.4th 950, 30 Cal.Rptr.2d 690, is distinguishable from the matter before us.   There, Pamela unlike Phillips was unable to establish any specific evidentiary basis, other than a high crime area, supporting imposition of duty.   Here, constructive notice of adequate particularized information summarized above was present.   Moreover, this case does not pose the difficulty of deterring a violent, stalking rapist and the attempt to hold a small four-unit condominium owner and association liable for the rapist's criminal conduct.   Here, Saska's is a long-established restaurant, which profited significantly by encouraging late-hour dining and drinking while providing an exclusive off-site parking lot for that purpose.   The court in Pamela W. was confronted with the issue of determining how a property owner could prevent a stalking rapist from committing his horrendous criminal act.   In contrast here, the effectiveness of the implementation of security measures summarized above would have in all likelihood prevented or reduced the risk of harm to Phillips.

SUBSTANTIAL EVIDENCE SUPPORTS THE JURY'S DETERMINATION SASKA'S BREACHED ITS DUTY OF CARE OWED ITS CUSTOMERS BY FAILING TO PROVIDE ADEQUATE SECURITY MEASURES AND TO PROTECT CUSTOMERS FROM REASONABLY FORESEEABLE CRIMINAL CONDUCT OCCURRING LATE AT NIGHT IN ITS PARKING LOT

 Saska's contends even if it owed a duty of due care under these circumstances, there was no breach of duty because the assault was not reasonably foreseeable and thus its nonfeasance was reasonable.   To the contrary, the record amply supports the jury's finding Saska's breached its duty of due care owed Phillips.

“Actionable negligence comprises three distinct elements:  Legal duty to use due care, a breach of that duty, and a proximate or legal causal connection between the breach and the injuries suffered by plaintiffs.”  (Lopez v. McDonald's Corp., supra, 193 Cal.App.3d at p. 513, 238 Cal.Rptr. 436;  United States Liab. Ins. Co. v. Haidinger–Hayes, Inc. (1970) 1 Cal.3d 586, 594, 83 Cal.Rptr. 418, 463 P.2d 770.)   Given the nonfeasance character of Saska's conduct, we must determine what reasonable protective measures it should have taken under the circumstances before we evaluate causation.   As we stated above, Saska's admits its restaurant and separated parking lot were located in a high crime area.   The 1990 crime statistics of the San Diego Police Department records revealed the Mission Beach census track to be one of the highest areas of crime against the person (i.e., aggravated assaults) in San Diego County.   The assaultive conduct here was reasonably foreseeable given the number of assaults and batteries and crimes against the person within the immediate vicinity within the three-year period before the incident;  the complaints of neighbors relating to hostile conduct in the parking lot late at night;  the reasonable probability had Saska's investigated the complaints it would have discovered its parking lot had been the site of frequent hostile disturbances and prior similar assaults;  and Saska's encouragement of late-night dining and drinking and use of its unattended parking lot requiring patrons to self-park and walk to and from the restaurant 234 feet away.   The foregoing clearly establishes Saska's, at a minimum, should have provided security and protective measures such as a parking valet, lot attendant, or a closed-circuit television monitor designed to deter theft-related and assaultive criminal conduct through the potential of identification and capture.   Phillips's security expert stated such security measures should have been taken to reduce or deter the threat of criminal assault and battery.   The feasibility and effectiveness of having a parking attendant was supported by the fact a nearby restaurant, Newport Annie's, which served dinner and drinks late at night and had a parking lot separated from the restaurant by a city block, had a parking attendant during dining hours and had not had any incidents of criminal assault or other misconduct against a customer while using its lot since 1989.   Accordingly, the record amply supports the jury's determination Saska's nonfeasance and failure to provide any of the cited security measures constituted a breach of duty it owed to Phillips.

SUBSTANTIAL EVIDENCE SUPPORTS THE JURY'S FINDING OF CAUSATION

 Upon concluding the record amply supports the jury's finding Saska's breached its duty owed to Phillips, we must now determine whether the record supports the jury's conclusion Saska's failure to provide a parking attendant or valet, or to take some other protective measure, constituted a proximate or legal cause of the injuries suffered by Phillips.   Saska's asserts Phillips did not establish its nonfeasance in any way contributed to his resulting injuries, that is that substantial evidence does not support the jury's finding its failure to provide a parking valet or a regular parking attendant, or to take other preventive security measures, was a substantial factor in causing his injuries.  (Lopez v. McDonald's Corp., supra, 193 Cal.App.3d at p. 515, 238 Cal.Rptr. 436.)  “Otherwise stated, [defendant's] negligent conduct is not a substantial factor in bringing about plaintiffs' injuries if their injuries would have been sustained even if it had provided the [protective measure].”  (Ibid.;   see Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052, 1 Cal.Rptr.2d 913, 819 P.2d 872.)

Here, the jury could have reasonably inferred, as did Phillips's expert, that certain added security measures would have likely deterred the criminal conduct that befell Phillips.   Specifically, Phillips's expert testified a parking lot valet service, a parking attendant, or a closed-circuit television monitor system would have likely avoided or lessened the risk of injury to Phillips.   As discussed earlier, a parking valet would have brought Phillips's car to the restaurant door, relieving him of the walk to the parking lot and avoiding the verbal exchange which eventually led to the physical assault.  (See Onciano v. Golden Palace Restaurant, Inc., supra, 219 Cal.App.3d at p. 394, fn. 1, 268 Cal.Rptr. 96.)   Indeed, given the gradual manner in which the incident escalated from a verbal exchange to a physical assault over a period of several minutes, the presence of a parking attendant or closed-circuit television monitoring system would have provided an opportunity for either the attendant or restaurant manager to view the developing conflict, intervene, seek additional help or alert other employees in the restaurant.   It is reasonable to conclude the situation would have been diffused by the presence and intervention of restaurant personnel, who testified they would have gone to the assistance of a customer in distress in the lot consistent with the restaurant's policy.   This would appear especially so under the circumstances leading up to the Phillips assault, as the assailants initially evidenced an intention to leave at one point before the assault occurred by backing their car out of the parking lot and the fact the assailants left after a neighbor actually came and confronted them in the parking lot during the beating.   Finally, in addition to expert testimony that enhanced security measures such as those listed above would deter or reduce the risk of harm to patrons using the lot, the jury could have reasonably inferred causation from the evidentiary fact that a nearby restaurant, Newport Annie's, employed a parking attendant and had not experienced any criminal incidents involving customers while the attendant was present late at night.   Thus, this case is the antithesis of the classic case of “abstract negligence” where the defendant's security did not comport with the plaintiff's expert's and jury's notion of adequacy but plaintiff could not establish any causal connection between that negligence and the injury suffered.  (See, e.g., Lopez v. McDonald's Corp., supra, 193 Cal.App.3d at pp. 515–517, 238 Cal.Rptr. 436;  Noble v. Los Angeles Dodgers, Inc. (1985) 168 Cal.App.3d 912, 918, 214 Cal.Rptr. 395.) 5

ANY ERROR BY THE TRIAL COURT IN ADMITTING OPINION AND DOCUMENTARY EVIDENCE OF SUBSEQUENT CRIMINAL ACTIVITY WAS NOT PREJUDICIAL

 Saska's contends the trial court erred in denying its request to exclude all reference to crime statistics pertaining to crimes occurring after the Phillips assault, as well as any opinions based upon such statistics.   Assuming that any references to post-incident statistics were irrelevant to the issue of whether the risk of harm was reasonably foreseeable to Saska's both in the context of breach of duty and causation, any error was not prejudicial.

The challenged statistical data of trial court exhibits 8(d), 8(f), 8(g), 8(h), 8(j) and 8(k) and Phillips's expert's testimony simply confirmed the area constituted a high crime area.   That evidentiary fact was conceded by Saska's in its opening jury argument.   Moreover, the statistical data within trial court exhibits 8(c), 8(g), 8(h), 8(j), and 8(k) covering the 1990 calendar year was explicitly, graphically defined and distinguished on a monthly basis.   Similarly, the statistical data covering January through June 1991 in trial court exhibits 8(g), 8(l ) and 8(m) was analyzed on a monthly basis.   This latter data simply confirmed the seasonal trend of increasing crime, both violent crimes and aggravated assaults, as the year progresses from spring to summer.   The jury was fully aware of this statistical breakdown and analysis, as Saska's counsel cross-examined Phillips's expert regarding his reliance on not only the general statistics of the census tract area but also his reliance on the statistical data for the entire 1990 calendar year.   In addition, Saska's presented trial court exhibit 36, an analysis of the police computer printout for all reported crimes within a one-tenth mile radius of Saska's which listed each crime, its description and precise date of occurrence.   Further, Phillips's expert's opinion pertaining to Saska's breach of duty to provide security for its patrons was expressly “[b]ased on a review of the statistics during the initial part of 1990 when the statistics in terms of criminal activity started moving up to a crescendo of September and into October․”   Even Saska's expert relied on post-September 1990 crime statistics in formulating his opinion and admitted there was a trend in the pre-September 1990 crime statistics establishing a marked increase in criminal activity in the Mission Beach area, almost doubling during the two or three years before the Phillips assault.   The nine-month balance of the 1990–1991 fiscal year crime data simply confirmed that trend.   Finally, the jury had significant other substantial evidence supporting its findings of a breach of duty and causation which we have already summarized in our analyses of those issues.   Accordingly, any error in permitting admission or reliance on crime data occurring after September 1990 was not prejudicial.

DISPOSITION

The judgment is affirmed.

In our initial published opinion in this case we concluded that Saska's had a duty to provide “adequate security” for its customers using its parking lot late at night.   We further concluded that this duty required, at a minimum, the provision of some sort of monitoring of the parking lot, such as would be afforded by a parking valet, lot attendant, or perhaps a closed-circuit television monitor.   We came to these determinations by considering the foreseeability of potential criminal conduct in the parking lot (noting that Saska's is in a high crime area) and balancing the factor of foreseeability against the several other factors set forth in Rowland v. Christian (1968) 69 Cal.2d 108, 112–113, 70 Cal.Rptr. 97, 443 P.2d 561.

Our opinion was published August 31, 1994.   The Supreme Court's opinion in Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 25 Cal.Rptr.2d 137, 863 P.2d 207 (Ann M.) was published December 16, 1993.   As the result of administrative time lags on which infect publication of opinions, and other factors I did not know of the Ann M. opinion when our opinion was published and it was not referenced in the opinion.   The Supreme Court granted review of our case and then transferred it back to us, “with directions to vacate [our] decision and to reconsider the cause in light of Ann M. v. Pacific Shopping Center․”

The majority's opinion accomplishes this reconsideration.   With all deference to the majority, however, I cannot agree that effective note has been taken of the philosophy evident in the Ann M. opinion.   I believe the Supreme Court's present trend of thinking in the area of premises liability requires that we reverse the trial court's judgment in this case.

There are many similarities between the landlord's position in Ann M. and the defendant tavern owner's status in this case.   The shopping center in Ann M. was in a high crime area.   Saska's restaurant is also in a high crime area.   Indeed, living as we do in the same city we can take notice that both establishments are in the Pacific Beach neighborhood only a few miles apart.   In both cases violent criminal incidents had occurred in the neighborhood.   In both cases, however, no specific on-premises or near-premises assault had been brought to the attention of the landowner.   Absent the gloss imposed on the common law of this issue by Ann M., we might (as indeed we did) conclude that the need for a security guard or some other protection was within the realm of reasonable duty for Saska's, under all of the circumstances, and that the question should be decided by the jury.

Ann M. does, however, put a different light on the matter.   The court noted that “random, violent crime is endemic in today's society [and] [i]t is difficult, if not impossible, to envision any locale open to the public where the occurrence of violent crime seems improbable.”  (Ann M., supra, 6 Cal.4th at p. 678, 25 Cal.Rptr.2d 137, 863 P.2d 207.)   Whether a duty of protection against such potential crime is to be imposed upon a landowner depends on balancing of the foreseeability of potential danger against the burden of the duty to be imposed.  (Ibid.)  The court in Ann M. evidenced considerable sensitivity to this burden.   It noted that “[t]he monetary costs of security guards is not insignificant.”  (Id. at p. 679, 25 Cal.Rptr.2d 137, 863 P.2d 207.)   Compliance with whatever duty might be imposed was also found difficult, because we do not know why people commit crimes and “ ‘hence no one really knows what is ‘adequate’ deterrence in any given situation.' ”   (Ibid., quoting 7735 Hollywood Blvd. Venture v. Superior Court (1981) 116 Cal.App.3d 901, 905, 172 Cal.Rptr. 528.)   The court thought that the social cost of imposing on landlords the duty of hiring security guards was significant, and that it would be an “unfair burden” to force landlords to become the insurers of public safety.  (Ann M., supra, at p. 679, 25 Cal.Rptr.2d 137, 863 P.2d 207.)

My interpretation of the court's language is that it conceives it inappropriate, in the ordinary circumstance, to require landlords to retain security guards to patrol common areas outside the business premises proper.   The court acknowledges that crime is rampant, and considers that in the case before it the area is more dangerous than the average.   Nevertheless, the court concludes that unless something has occurred to distinguish the danger at the subject premises from the general societal danger in the neighborhood, no duty of special protection applies.   The obligation of patrolling the streets or other common, public areas is that of the city, not that of the owners of business premises within the city.1  I derive the conclusion from this approach that the Supreme Court will require something unusual in terms of notice to the landlord of danger to his customers before exterior patrolling will be found a duty.   Indeed, the court rather directly said so:  “While there may be circumstances where the hiring of security guards will be required to satisfy a landowner's duty of care, such action will rarely, if ever, be found to be a ‘minimal burden.’ ”  (Ann M., supra, 6 Cal.4th at p. 679, 25 Cal.Rptr.2d 137, 863 P.2d 207.)

I believe the Supreme Court has spoken.   Landlords renting space to tenants, business operators providing services to customers, and similarly situated owners or occupiers of land are not to be held to a duty to provide private police protection to people coming to or leaving their premises, or parking in adjacent or nearby parking lots.   If a duty is ever to be imposed in this regard it will be based upon unusual circumstances constituting clear prior notice of a special situation which distinguishes the landowner in question from the rest of society.   Mere prevalence of crime in the neighborhood will not cause the duty to flower.   Exactly what circumstances might bring the duty into force cannot be suggested.   No doubt a prior assault of the same violent kind as that experienced by the plaintiff in this case (or the rape in Ann M.) would be notice of the need for special protection.   No such assault had happened in Ann M. and the court found no duty.   No such assault had happened, or at least had come to the attention of the management, at Saska's.

The majority's opinion is unsettling in that it not only comments on the duty that Saska's may have had to provide security for known risks, but also discusses the creation of a new sort of duty for owners of business premises:  a duty to investigate to determine what the potential risk may be.   The majority's opinion concedes that Saska's had no actual knowledge of any prior similar criminal incidents (maj. opn., p. 34).   It concludes, however, that Saska's had a duty to act as if it had such knowledge because a reasonably prudent landlord would have investigated complaints of “hostile disturbances” in or around its parking lot, and had such an investigation been made it would have discovered the facts which then would have imposed the duty to provide security.

This added somewhat gratuitous imposition of obligation on landlords is troubling to me.   Saska's premises, as was the case in Ann M., was located in an acknowledged high crime area.   This fact would seem to impose upon governmental agencies a greater duty of security patrols, and one would expect that businesses in such an area could reasonably rely on such increased protection.   The majority's opinion seems to impose upon ordinary businessmen an obligation of private investigation and enhanced private policing if they elect to locate a business in a “high crime” area.   I can think of no policy better designed to exclude restaurants and other businesses from locating in questionable neighborhoods.   Is this the news we want to promulgate to our business community?   I think not.

I again refer to what appears to me to be the plain philosophy of Ann M.  Protection of the public on public streets or in parking areas or other areas open to the public is the job of government.   It is inappropriate willy nilly to impose this obligation upon the operators of private businesses.   “[L]andlords [are not] to become the insurers of public safety․”  (Ann M., supra, 6 Cal.4th at p. 679, 25 Cal.Rptr.2d 137, 863 P.2d 207.)

While the Supreme Court did not explicitly lay down a “bright line” of circumstance warranting the imposition of the special duty, it seems to me that it came very close to doing so.   My interpretation of Ann M. is that barring some unusual facts, which we cannot now conjure or identify, a landlord is not required to provide off-premises protection for customers unless a specific prior incident involving his customers shows with clarity the obligation to do so.   As we know, the determination of “duty” in a case such as this is one of law.   The majority's description of the circumstances leading to the imposition of duty is very difficult of application.   If I were thinking of opening a McDonald's hamburger store or a Saska's restaurant somewhere in San Diego other than where these particular stores were located, I would be very hard pressed to know my obligations in terms of off-premises security provision.   I like the approach that I think was taken in Ann M.  I have no duty until and unless a specific “incident” occurs resulting in danger or harm to one of my customers, or some similarly situated person, which actually and obviously puts me on notice of particular danger.   Until that event occurs I can reasonably assume that the problems of doing business in a high crime area are to be controlled by the public police.

I would follow the clear direction of the Supreme Court and reverse the judgment.

FOOTNOTES

1.   The amount of damages and the proportionate liability for damages are not challenged on appeal.

2.   Saska's manager, responsible for both the restaurant and its parking lot security, had instructed all employees to report any complaints to him and denied ever having received any of the neighbors' complaints.

3.   That evening before arriving at Saska's, Phillips had consumed alcohol at three different bars and/or restaurants.

4.   Similarly, the presence of a closed-circuit television monitoring system would have permitted restaurant personnel to view the developing conflict and take appropriate action.

5.   Saska's reliance on Nola M. v. University of Southern California (1993) 16 Cal.App.4th 421, 20 Cal.Rptr.2d 97, is misplaced.   There, early one evening, the plaintiff was attacked and raped on the campus of the University of Southern California (USC).   The USC security department included highly trained armed security officers and unarmed community service officers.  (Id. at p. 424, 20 Cal.Rptr.2d 97.)   At the time of the incident, USC had eight officers patrolling a quarter-mile area while the Los Angeles Police Department had approximately the same number patrolling the surrounding ten and one-half miles.  (Id. at pp. 425, 435, 20 Cal.Rptr.2d 97.)   Plaintiff's expert found fault in the physical plan, number of guards and the way they worked, but could not say his suggestions for improvement would have prevented the assault.   (Ibid.)  Consequently, Nola M. is factually distinguishable and inapposite here.   Unlike this case, it involves marginal misfeasance, rather than complete nonfeasance.   However, more importantly, the record in Nola M. does not contain the evidence of causation that exists here, especially the prior experience of Newport Annie's regarding the effectiveness as an apparent deterrent of a parking attendant.

1.   It is to be noted in this regard that the confrontation outside Saska's which evolved into the assault on plaintiff commenced when plaintiff and his companion were on the sidewalk and the defendants were in their car on the city street.   We do not discuss the potential difference in duty of patrol of the public sidewalk and street as distinguished from the Saska's separated parking facility.   That this occurrence commenced on public property suggests to me, however, that the concern over requiring private policing of public areas is appropriate here.

WORK, Associate Justice.

KREMER, P.J., concurs.