DUARTE v. STATE

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

Yvonne DUARTE, Plaintiff and Appellant, v. STATE of California et al., Defendants and Respondents.

Civ. 16055.

Decided: January 18, 1979

Krause, Timan, Baskin, Shell & Grant and Marshall W. Krause, Larkspur, for plaintiff and appellant. Women's Union at New College of California School of Law and Roberta Achtenberg, San Francisco, amicus curiae for plaintiff and appellant. Luce, Forward, Hamilton & Scripps and Gerald S. Davee, San Diego, for defendants and respondents.

Plaintiff Yvonne Duarte's complaint sought damages for wrongful death of her daughter, Tanya Gardini. Tanya was raped and murdered in the student residence hall owned and operated by the California State University at San Diego. Duarte's complaint tendered contract, negligence, wanton and wilful misconduct, and negligent misrepresentation as alternative theories of liability.

The trial court sustained demurrers to each of the four causes of action without leave to amend. On appeal Duarte has abandoned her third cause of action.

PLEANDINGS

Duarte's first cause of action is based upon the theory of breach of warranty of habitability arising out of the written rental contract between the university and decedent. The second cause of action, sounds in negligence, charges the university with the failure to meet the duty to protect, care for, supervise, house, assist and otherwise exercise custodial responsibility towards her daughter. The fourth cause of action is for negligent misrepresentation concerning the safety of the university dormitory allegedly relied upon by plaintiff in placing her daughter in the dormitory rather than in a private security apartment.

We assume for the purpose of this proceeding the truth of any properly pleaded factual allegations contained in the complaint. (Serrano v. Priest, 5 Cal.3d 584, 591, 96 Cal.Rptr. 601, 487 P.2d 1241.) However, since the demurrers were sustained without leave to amend, we consider other relevant matters of which the court could take judicial notice (Evid.Code, § 452) as well as matters that are represented in good faith can be cured by amendment. (Minsky v. City of Los Angeles, 11 Cal.3d 113, 118, 113 Cal.Rptr. 102, 520 P.2d 726.)

FACTUAL ASSERTIONS

The facts so pled or to be pleaded by appropriate amendment are:

Tanya Gardini entered the California State University at San Diego in September 1974 as a freshman. She had just graduated from high school. She arranged for living accommodations at the Zura Hall, a dormitory facility operated by the university on its campus. Duarte alleges the university expressly and impliedly represented that the housing facilities were reasonably safe and secure for their occupants; Mrs. Duarte relied upon such representations and by reason thereof took no steps to provide additional safety or security measures for her daughter.

On December 2, 1974, Tanya was raped and murdered in her room at Zura Hall by Lee Ellis Handy, Jr. How the murderer entered is not known but Duarte anticipates such facts will be determined by discovery pre-trial. Handy, a Navy seaman, confessed to the rape and murder, pled guilty, and is now serving a life sentence in the California state prison system.

Duarte here represents the campus of the California State University attracted many nonstudents who were interested in establishing social relationships with the many young women living on the campus. Before Tanya's murder the university was aware there was a chronic pattern of violent assaults, rapes and attacks on female members of the university community, and that this pattern was escalating.

Despite this knowledge, the university failed to take responsible precautions to reduce the hazard and to protect the residents in the university dormitories or to warn the students or to train the students to protect themselves. Duarte here represents that defendants not only were aware of the increasing pattern of violence on the campus but engaged in a pattern of covering up these events so that the true extent of the violence on the campus was not generally known to Duarte or the university campus.

Duarte would amend to allege Tanya was living away from home for the first time; she was subjected to a danger for which she and others were totally unprepared and unwarned in living in the university dormitories; that in contracting for a room in Zura Hall, Tanya was required to submit herself to the control of the university far more extensively than does the university student not living in a resident dormitory; limitations are placed on the use or misuse of alcohol or possession of drugs. Dismissal may result from inappropriate behavior. Failure to abide by university residence hall standards could result in expulsion. The university could revoke Tanya's rental agreement on one day's notice. The university reserved the right to enter the students' rooms to inspect for purposes of management, health, safety, and maintenance of rules and regulations; Duarte asserts the rental agreement provides far greater control of the student than does the ordinary landlord and tenant relationship. Duarte argues that there develops a “special relationship” between the students and the university arising out of the terms of the contract and that “a dangerous condition” existed on the premises under control of the university for which there is a legal responsibility.1

ISSUES

Duarte first asserts that her complaint states or can be amended to state a cause of action for negligence. Duarte contends the university has a duty to provide reasonable security from foreseeable criminal acts against student tenants by third party intruders.

Secondly Duarte contends the university had a contractual obligation to Tanya arising from the terms of the landlord-tenant agreement as well as from an implied in law covenant of habitability requiring the university to provide “a safe residence.” Finally Duarte argues that the sovereign immunity doctrine does not shield defendants from liability. We examine these contentions in order of presentation.

At the threshold of our inquiry into this novel pleading, we search for the fundamental rules, the source of the duty of one person to control the conduct of another or respond in damages.

At the outset of the search we find the “indispensible factor to liability founded upon negligence is the existence of a duty of care owed by the alleged wrongdoer to the person injured, or to a class of which he is a member.” (Routh v. Quinn, 20 Cal.2d 488, 491, 127 P.2d 1, 3; Rest., 2d Torts, §§ 281A & B.) Further, a “duty of care” is merely a descriptive phrase, a conclusory statement that in a particular case one party will be adjudged liable for damages done another. As was said in Dillon v. Legg, 68 Cal.2d 728, 734, 69 Cal.Rptr. 72, 76, 441 P.2d 912, 916:

“The assertion that liability must . . be denied because defendant bears no ‘duty’ to plaintiff ‘begs the essential question—whether the plaintiff's interests are entitled to legal protection against the defendant's conduct… [[[[[Duty] is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.’ (Prosser, Law of Torts, [3d ed. 1964] at pp. 332-333.)”

The sum total of those considerations giving rise to the duty of care is expressed in Civil Code section 1714. Liability is to be imposed “for an injury occasioned to another by his want of ordinary care or skill.” And the most important of the considerations establishing want of ordinary care, i. e. duty, is foreseeability. (Tarasoff v. Regents of University of California, 17 Cal.3d 425, 434, 131 Cal.Rptr. 14, 551 P.2d 334.)

“As a general principle, a ‘defendant owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous.’ [Citations.] … however, when the avoidance of foreseeable harm requires a defendant to control the conduct of another person, or to warn of such conduct, the common law has traditionally imposed liability only if the defendant bears some special relationship to the dangerous person or to the potential victim.” (Id. at pp. 434-435, 131 Cal.Rptr. at p. 22, 551 P.2d at p. 342.)

Under the common law, as a general rule, one person owed no duty to control the conduct of another (Richards v. Stanley, 43 Cal.2d 60, 65, 271 P.2d 23; Rest., 2d Torts, § 315), or to warn those endangered by such conduct (Rest., 2d Torts, § 314, com. c.; Prosser, Law of Torts (4th ed. 1971) § 56, p. 341). The courts have carved out exceptions (which may well have swallowed this rule) in cases where the defendant stands in some special relationship to either the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of that conduct. (See Rest., 2d Torts, §§ 315-320.) At section 315 of the Restatement Second of Torts, a duty of care may arise from either “(a) a special relation … between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation … between the actor and the other which gives to the other a right of protection.”

The legal responsibility for the protection of another person from the criminal misconduct of a third party (absent a specific contractual undertaking) has been historically founded on some recognized relationship existing between the parties such as carrier and passenger, innkeeper and guest, invitor and business guest, school district and pupil, employer and employee, landlord and tenant. The list and the concept has a general elasticity, characteristic of tort law principles. (Prosser, Law of Torts (4th ed. 1971) p. 174; Harper & Kime, The Duty to Control the Conduct of Another, 43 Yale L.J. 886, 904-905.)

In keeping with this growth process, the California courts have determined that the entrepreneurial land occupier has the duty to exercise reasonable care to protect invitees, patrons on the premises from unlawful acts of third persons. (Winn v. Holmes, 143 Cal.App.2d 501, 299 P.2d 994 [restaurant owner]; Bartosh v. Banning, 251 Cal.App.2d 378, 59 Cal.Rptr. 382 [bar owner]; Rahmel v. Lehndorff, 142 Cal. 681, 76 P. 659 [hotel operator]; Taylor v. Centennial Bowl, Inc., 65 Cal.2d 114, 52 Cal.Rptr. 561, 416 P.2d 793 [bowling alley]; Worcester v. Theatrical, etc., Corp., 28 Cal.App.2d 116, 82 P.2d 68 [theater]; Stockwell v. Board of Trustees, 64 Cal.App.2d 197, 148 P.2d 405 [university campus]; Thomas v. Bruza, 151 Cal.App.2d 150, 311 P.2d 128 [barroom operator]; Orser v. George, 252 Cal.App.2d 660, 60 Cal.Rptr. 708 [duck club].)

The rules stated in the foregoing cases are exemplified by the Restatement of Torts, Second, section 344 rule that the possessor of land open for public entry for business purposes has a duty to take appropriate measures to restrain conduct by third persons of which he should be aware and which he should realize is dangerous.

In a second area of non-business entities it has been held, for example, a school district's relationship with its students gives rise to a duty of care as a matter of law. The Supreme Court said in Dailey v. Los Angeles Unified School District, 2 Cal.3d 741, 747, 87 Cal.Rptr. 376, 379, 470 P.2d 360, 363:

“While school districts and their employees have never been considered insurers of the physical safety of students, California law has long imposed on school authorities a duty to ‘supervise at all times the conduct of the children on the school grounds and to enforce those rules and regulations necessary to their protection. [Citations.]’ (Taylor v. Oakland Scavenger Co. (1941) 17 Cal.2d 594, 600, 110 P.2d 1044; Ed.Code, § 13557. [Citations.] The standard of care imposed upon school personnel in carrying out this duty to supervise is identical to that required in the performance of their other duties. This uniform standard to which they are held is that degree of care ‘which a person of ordinary prudence, charged with [comparable] duties, would exercise under the same circumstances.’ [Citations.] Either a total lack of supervision [citation] or ineffective supervision [citation] may constitute a lack of ordinary care on the part of those responsible for student supervision. Under section 815.2, subdivision (a) of the Government Code, a school district is vicariously liable for injuries proximately caused by such negligence.”

In Dailey, a 16-year-old was killed from a fall in a “slap boxing match” during the lunch hour. The Supreme Court said:

“High school students may appear to be generally less hyperactive and more capable of self-control than grammar school children. Consequently, less rigorous and intrusive methods of supervision may be required. Nevertheless, adolescent high school students are not adults and should not be expected to exhibit that degree of discretion, judgment, and concern for the safety of themselves and others which we associate with full maturity. As the court observed in Satariano v. Sleight (1942) 54 Cal.App.2d 278, 283, 129 P.2d 35: ‘[W]e should not lose our eyes to the fact that … boys of seventeen and eighteen years of age, particularly in groups where the herd instinct and competitive spirit tend naturally to relax vigilance, are not accustomed to exercise the same amount of care for their own safety as persons of more mature years.’ Recognizing that a principal task of supervisors is to anticipate and curb rash student behavior, our courts have often held that a failure to prevent injuries caused by the intentional or reckless conduct of the victim or a fellow student may constitute negligence. [Citations.]” (Id. at pp. 748, 749, 87 Cal.Rptr. at p. 380, 470 P.2d at p. 364.)

And in Stockwell v. Board of Trustees, supra, 64 Cal.App.2d 197, 148 P.2d 405, a Stanford University student was struck in the eye by a pellet fired by an unknown party. The university had knowledge that guns had been used on the campus contrary to regulations. The duty of care owed to the student was determined as a matter of law. The court said at pages 203-204, 148 P.2d at page 408:

“Applying the foregoing legal rules to the factual situation presented, it becomes apparent not only that the question of whether under all the circumstances shown the university exercised reasonable care to protect its students from the perils of the promiscuous use on the premises of BB guns was one of fact which plaintiff was entitled to have submitted to and determined by the jury, but also that if a verdict favorable to plaintiff had been returned, it would not have been lacking in evidentiary support; and that therefore the court was not justified in granting the nonsuit.

There is no disputing the legal principle upon which defendants seem strongly to rely, that a person invited upon the premises of another may recover damages from such owner for injuries received owing to the dangerous condition of the premises known to the owner and not known to the person so injured, but that such owner is not bound to keep his premises absolutely safe. [Citations.] However, there is nothing in the statement of such legal principle indicating that the question of the owner's knowledge of the dangerous condition is one of law. Here as pointed out the evidence affirmatively shows knowledge on the part of the university of the promiscuous use of BB guns on the premises, and it was doubtless a question of fact as to whether the promiscuous use thereof under the conditions shown by the evidence constituted a dangerous condition against which the university negligently failed to protect its invitees.”

The duty of care arises in yet another fact matrix where the special circumstances arise because one person has the custody, control of another. The Restatement of Torts, Second, section 320, provides:

“One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal power of self-protection or to subject him to association with persons likely to harm him, is under a duty to exercise reasonable care so to control the conduct of third persons as to prevent them from intentionally harming the other or so conducting themselves as to create an unreasonable risk of harm to him, if the actor (a) knows or has reason to know that he has the ability to control the conduct of the third persons, and (b) knows or should know of the necessity and opportunity for exercising such control.”

This duty includes the duty to anticipate danger, as is stated in Restatement of Torts, Second, section 320, comment (d):

“One who has taken custody of another may not only be required to exercise reasonable care for the other's protection when he knows or has reason to know that the other is in immediate need of it, but also to make careful preparations to enable him to give effective protection when the need arises, and to exercise reasonable vigilance to ascertain the need of giving it․ [A] schoolmaster who knows that a group of older boys are in the habit of bullying the younger pupils to an extent likely to do them actual harm, is not only required to interfere when he sees the bullying going on, but also to be reasonably vigilant in his supervision of his pupils so as to ascertain when such conduct is about to occur. This is true whether the actor is or is not under a duty to take custody of the other.”

Illustrative of this principle is the case of Wallace v. Der-Ohanian, 199 Cal.App.2d 141, 18 Cal.Rptr. 892. There a summer camp operator was held responsible for the rape and sexual abuse of an 11-year-old girl who was a guest at the camp and who had been assigned to sleep in a cabin with one other young girl. Given the defendant's knowledge of the neighborhood and its residents, it was held that the defendant owed a duty to protect the child from such an assault. While a young female child was the victim in Der-Ohanian, supra, yet the cogent reasoning and case authorities relied upon there have applicability to a university dormitory situation. (See also Mrzlak v. Ettinger, 25 Ill.App.3d 706, 323 N.E.2d 796.)

In yet another area the courts, by the process of analogy to the innkeeper's liabilities (after cleaning away much legal underbrush), have held the landlord-tenant relationship in the urban, multiple residential dwelling context, gives rise to liability under circumstances where landlords have failed to take reasonable steps to protect tenants from criminal activity. (O'Hara v. Western Seven Trees Corp., 75 Cal.App.3d 798, 802-803, 142 Cal.Rptr. 487; Totten v. More Oakland Residential Housing, Inc., 63 Cal.App.3d 538, 543, 134 Cal.Rptr. 29; and see Kline v. 1500 Massachusetts Avenue Corp., 141 U.S.App.D.C. 370, 439 F.2d 477; Samson v. Saginaw Professional Bldg., Inc., 393 Mich. 393, 224 N.W.2d 843; Johnston v. Harris, 387 Mich. 569, 198 N.W.2d 409; see Annot. 43 A.L.R.3d 331.)

Kline v. 1500 Massachusetts Avenue Corp., supra, the landmark case holds a landlord liable both on negligence and contract principles in failing to protect a tenant against criminal conduct of third parties.

The Kline court based liability, found “duty” on these premises. First the court found the “logic of the situation” required the imposition of a duty of protection upon the landlord.

“The landlord is no insurer of his tenants' safety, but he certainly is no bystander. And where, as here, the landlord has notice of repeated criminal assaults and robberies, has notice that these crimes occurred in the portion of the premises exclusively within his control, has every reason to expect like crimes to happen again, and has the exclusive power to take preventive action, it does not seem unfair to place upon the landlord a duty to take those steps which are within his power to minimize the predictable risk to his tenants. 141 U.S.App.D.C. 370, 374, 439 F.2d 477, 481.”

Further, the Kline court said:

“[S]ince 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. However, there is no liability normally imposed upon the one having the power to act if the violence is sudden and unexpected provided that the source of the violence is not an employee of the one in control.”

Following the Kline reasoning imposing liability on a negligence base are the following cases: Smith v. General Apartment Co., 133 Ga.App. 927, 213 S.E.2d 74; Sherman v. Concourse Realty Corp., 47 A.D.2d 134, 365 N.Y.S.2d 239; Smith v. ABC Realty Co., 66 Misc.2d 276, 322 N.Y.S.2d 207; Kendall v. Gore Properties, 98 U.S.App.D.C. 378, 236 F.2d 673; Goldberg v. Housing Auth. of Newark, 38 N.J. 578, 186 A.2d 291, 293; Braitman v. Overlook Terrace Corp., 68 N.J. 368, 346 A.2d 76; Stribling v. Chicago Housing Authority, 34 Ill.App.3d 551, 340 N.E.2d 47; see Annot. 43 A.L.R.3d 348-350; see also Rest., 2d Torts, §§ 302B, 448, 449.

And upon a second and distinct principle, the Kline court found a legal liability based upon a duty of care arising out of the lease contract. “[T]here is implied in the contract between landlord and tenant an obligation on the landlord to provide those protective measures which are within his reasonable capacity.” (Kline v. 1500 Massachusetts Avenue Corp., supra, 141 U.S.App. D.C. at p. 378, 439 F.2d at p. 485.) Following this Kline second principle that liability of the landlord may also rest upon an implied warranty arising from the lease-contract are the following authorities: Johnston v. Harris, supra, 387 Mich. 569, 198 N.W.2d 409; Levine v. Katz, 132 U.S.App. D.C. 173, 407 F.2d 303; Kendall v. Gore Properties, supra, 98 U.S.App.D.C. 378, 236 F.2d 673; Javins v. First National Realty Corp., 138 U.S.App.D.C. 369, 428 F.2d 1071; Old Town Development Co. v. Langford (Ind.App.) 349 N.E.2d 744; see Annot. 43 A.L.R.3d 345-348.

Defendants rely for support of the trial court's action upon Hayes v. State of California, 11 Cal.3d 469, 113 Cal.Rptr. 599, 521 P.2d 855, and Sykes v. County of Marin, 43 Cal.App.3d 158, 117 Cal.Rptr. 466. These cases have no relevance to the factual charges here made because neither involves the “special relationship” such as existed between Tanya and the university. The victims in Hayes were two young men camping on the University of California beach at Santa Barbara. Neither were students nor tenants of the university. Sykes involved an attack on a father picking up his daughter in a parking lot. He had no relationship with the defendant other than as a user of the lot. This selfsame lack of special circumstances giving rise to a duty of care was in critical absence in Moncur v. City of Los Angeles, 68 Cal.App.3d 118, 137 Cal.Rptr. 239.

We conclude that the Duarte allegations are factually closer to Kline v. 1500 Massachusetts Avenue Corp., supra, and O'Hara v. Western Seven Trees Corp., supra, than to Hayes, supra, Sykes, supra, Moncur, supra, or Totten v. More Oakland Residential Housing, Inc., supra, 63 Cal.App.3d 538, 134 Cal.Rptr. 29.

From the facts alleged or to be added by amendment, we draw the reasonable inferences that Tanya was not the victim of a sudden unexpected outburst. She had a landlord-tenant relationship-plus with the university; Tanya had in many substantial respects surrendered the control of her person, control of her own security to the university; the university failed to warn and concealed the true state of affairs concerning rapes and assaults upon students. A reasonable inference here is that no security devices were instituted, let alone minimal safety precautions such as warning of the degree of danger. The university allegedly has superior knowledge and also the means of instituting some reasonable protective measures. The university not only had control over the campus areas and the residential facilities but also many aspects of Tanya's personal activities. Tanya herself, it is here represented, could not purchase and install security devices or hire a private police force; she could not possess a dog or a firearm.

The pleadings here allege the most important factor of liability—foreseeability. It is asserted the university knew of past assaults and of the conditions inviting further assaults. By failure to institute reasonable means within their power of accomplishment the likelihood of Tanya becoming a rape victim was increased.

We conclude that the duty of care here arose not only from the factual situation in which the university was on notice of potential harm to a person or class of persons, a duty of care was owed under the traditional tort rules. But in addition the duty here rests upon, arose out of that special landlord-tenant relationship here alleged. Tanya was not only entitled to a safe roof and adequate walls, but to an essentially safe place of residence. The contract between the university and Tanya was more than a leasing of space in a student dormitory. She submitted her security to control by the university. In this fact matrix an obligation arose to provide such protective measures which were within the university's reasonable capacity to thwart or diminish the possibility of a foreseeable assault.

Duarte's fourth cause of action was for negligent misrepresentation. Civil Code section 1710, subsection 2, defines deceit in terms of a negligent misrepresentation, to-wit: “The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true.” Duarte alleges that the university represented the “campus was reasonably safe and secure for the safety of female students, and that no unusual steps need be taken to insure safety from sexual and other violent assaults.” Duarte's reliance upon these false representations and approximate dangers are appropriately alleged.

The representation of the safety of the dormitories was, at least, an opinion made by persons in authority with presumed superior knowledge. These allegations will support a cause of action at the pleading stage. (Seeger v. Odell, 18 Cal.2d 409, 414, 115 P.2d 977; 4 Witkin, Summary of Cal.Law (8th ed. 1974) Torts, § 481, p. 2740.)

The university asserts Duarte's cause of action for negligent misrepresentation is expressly barred by Government Code section 818.8 which provides:

“A public entity is not liable for an injury caused by misrepresentation by an employee of the public entity, whether or not such misrepresentation be negligent or intentional.”

The Supreme Court in Johnson v. State of California, 69 Cal.2d 782, 800, 73 Cal.Rptr. 240, 252, 447 P.2d 352, 364, interpreted the term “misrepresentation” in a narrow restricted sense saying:

“The Legislature, in creating this exemption, must have had in mind those areas in which private defendants typically face liability for ‘misrepresentation’; in other areas, immunity for ‘misrepresentation’ would be superfluous.

and

“The Senate Committee on Judiciary Comment to section 818.8 of California's statute confirms this interpretation by giving the following example: ‘This section will provide … a public entity with protection against possible tort liability where it is claimed that an employee negligently misrepresented that the public entity would waive the terms of a construction contract requiring approval before changes were made.’ [Citation.]

and concludes:

“In short, ‘misrepresentation,’ as a tort distinct from the general milieu of negligent and intentional wrongs, applies to interferences with financial or commercial interest. The Legislature designed section 818.8 to exempt the governmental entity from this type of liability. Accordingly, however we may choose to characterize the parole officer's failure to give adequate warnings to plaintiff, section 818.8 does not apply to this case.” (See also Connelly v. State of California, 3 Cal.App.3d 744, 752, 84 Cal.Rptr. 257.)

The United States Supreme Court considered an analogous section of the federal Tort Claims Act and arrived at the same narrowed legislative intent in United States v. Neustadt, 366 U.S. 696, 711, 81 S.Ct. 1294, 6 L.Ed.2d 614.

This misrepresentation charged by Duarte clearly does not fall within the bar of Government Code section 818.8, for it does not in any respect interfere with any financial or commercial interest.

Duarte next contends that the sovereign immunity defense is not available to allow defendants to escape their responsibility toward students living in resident facilities controlled by the university.

Government Code section 814 provides that the California Tort Claims Act is not applicable to obligations based upon contract. Thus to the extent that the defendants' obligations arise out of the contract of landlord and tenant or the implied covenant of habitability the sovereign immunity defense has no applicability. (Souza & McCue Constr. Co. v. Superior Court, 57 Cal.2d 508, 510, 20 Cal.Rptr. 634, 370 P.2d 338; Universal By-Products, Inc. v. City of Modesto, 43 Cal.App.3d 145, 153, 117 Cal.Rptr. 525; 2 Witkin, Cal.Procedure (2d ed. 1971) Actions, § 293, p. 1140.)

Further, where a dangerous condition exists upon government property, the sovereign immunity defense is not available. (Gov.Code, § 835.) Whether or not there was a dangerous condition on the dormitory premises inviting the intruder, attracting the murderer is ordinarily a question of fact. (See Bakity v. County of Riverside, 12 Cal.App.3d 24, 30, 90 Cal.Rptr. 541.) If in fact the conditions that existed upon the dormitory premises constituted a dangerous condition in the nature of an invitation to an intruder to come to molest, then the liability of defendant is not negated because of a combination of the defect in the property and the act of a third party intruder. (See Baldwin v. State of California, 6 Cal.3d 424, 428, fn. 3, 99 Cal.Rptr. 145, 491 P.2d 1121; Hayes v. State of California, supra, 11 Cal.3d 469, 472, 113 Cal.Rptr. 599, 521 P.2d 855.)

Next defendants are charged with responsibility for the negligent failure of their employees to protect Tanya from a foreseeable criminal act. Section 815.2 of the Government Code imposes vicarious liability upon public entities for the tortious acts or omissions of their employees; except as otherwise provided by statute, a public entity cannot be held liable for an employee's act or omission when the employee himself would be immune. (Tarasoff v. Regents of University of California, supra, 17 Cal.3d 425, 444, fn. 20, 131 Cal.Rptr. 14, 551 P.2d 334; Sava v. Fuller, 249 Cal.App.2d 281, 57 Cal.Rptr. 312; Morgan v. County of Yuba, 230 Cal.App.2d 938, 41 Cal.Rptr. 508; Dailey v. Los Angeles Unified School District, supra, 2 Cal.3d 741, 87 Cal.Rptr. 376, 470 P.2d 360; Williams v. State of California, 62 Cal.App.3d 960, 966, 133 Cal.Rptr. 539.)

Thus, under section 815.2 a public entity may be held vicariously liable for conduct of its employees only if it is established that employees would be personally liable for the misconduct charged upon some acceptable theory of liability. (Van Alstyne, Cal.Government Tort Liability (Cont.Ed.Bar 1964) § 5.33, p. 144; Peter W. v. San Francisco Unified Sch. Dist., 60 Cal.App.3d 814, 819, 131 Cal.Rptr. 854.)

Duarte's pleadings, actual and as proposed to be amended, charge acceptable theories imposing liability for the conduct of the university's employees. Therefore, section 815.2, subdivision (a), imposes responsibility; the university does not have a statutory immunity from liability for negligence of its employees.

The doctrine of sovereign immunity—a concept that the kind can do no wrong—must in this last quarter of the 20th century be viewed in the light of the Supreme Court's expression in Muskopf v. Corning Hospital Dist., 55 Cal.2d 211, 219, 11 Cal.Rptr. 89, 94, 359 P.2d 457, 462, “when there is negligence, the rule is liability, immunity is the exception.” The 1963 Torts Claim Act (Gov.Code, §§ 810-996.6) did not alter this “basic teaching.” (Johnson v. State v. California, supra, 69 Cal.2d at p. 798, 73 Cal.Rptr. 240, 447 P.2d 352; Peter W. v. San Francisco Unified Sch. Dist., supra, 60 Cal.App.3d at p. 819, 131 Cal.Rptr. 854.)

Judgment reversed.

FOOTNOTES

1.  The trial court delayed its ruling on the demurrer to the first cause of action (breach of contract) to enable Duarte to produce the “two-semester rental contract” signed by Tanya. After its production and examination by the court the demurrer was sustained as to the first cause of action without leave to amend. The contract provided, inter alia:“I. OCCUPANCYThe University hereby grants the Student permission to occupy a residence hall room as a licensee ․ The student must furnish his own blanket, towels, bedspread, and desk lamp. Sheets, pillowcase, mattress pad and a pillow are furnished by the University. The University reserves the right to change room assignments in the interest of health, discipline, vacations, recesses, management, and/or general welfare of the resident․“III. TERMS AND CONDITIONS OF OCCUPANCYThe University assumes no responsibility for any property of the Student which is lost, stolen, damaged, or destroyed in the residence hall at any time, including periods when the Student is not in occupancy.The University will respect the Student's right to be free from unreasonable searches and intrusions into the Student's living quarters. University reserves the right to enter upon the premises to inspect the premises for purposes of management, health, safety, and maintenance of applicable rules and regulations.“IV. MAINTENANCE OF PREMISESThe Student agrees to give reasonable care to his room and its furnishings and to make payment for any damage or loss promptly upon demand by the University.The Student agrees to be jointly responsible with other residents for the protection of the residence hall, its furnishings and equipment.“VI. GUESTSArrangements for overnight guests shall be made in advance with the Head Resident. Student agrees to pay to University a fee as indicated at the residence hall desk. Student agrees to accept responsibility for the behavior of his or her guests and that guests will leave the residence halls if deemed necessary and so directed by a University official (Calif. Penal Code).”

STANIFORTH, Associate Justice.

COLOGNE, Acting P. J., and WIENER, J., concur.