PETERSON v. SAN FRANCISCO COMMUNITY COLLEGE DISTRICT

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

Kathleen PETERSON, Plaintiff and Appellant, v. SAN FRANCISCO COMMUNITY COLLEGE DISTRICT, et al., Defendants and Respondents.

A013988.

Decided: March 29, 1983

John J. Conneely, John D. O'Connor, Brobeck, Phleger & Harrison, San Francisco, for plaintiff and appellant. Leo J. O'Brien, Lawrence A. Margoles, Barfield, Barfield, Dryden & Ruane, San Francisco, for defendants and respondents.

In plaintiff Kathleen Peterson's action against defendant San Francisco Community College District, an agency of the State of California, for damages under the state's Tort Claims Act (Gov.Code, §§ 810, et seq.), a demurrer was sustained without leave to amend.   She has appealed from a judgment of dismissal of the action which was thereupon entered.

As stated by plaintiff:

“The first amended complaint [hereafter sometimes complaint] alleges that, on April 25, 1978, plaintiff and appellant Kathleen Peterson (hereinafter ‘plaintiff’), a student at San Francisco City College, was violently assaulted while ascending a stairway comprising a portion of the lower campus parking lot by an unidentified male who, using a modus operandi similar in nature to that employed in recent attacks on the same stairway, jumped from the cover of unreasonably thick and untrimmed foliage adjoining the stairway, and attempted to rape her.   The incident occurred in an area of the campus where, to the knowledge of the San Francisco Community College District (hereinafter ‘defendant’), prior violent assaults of a similar nature had occurred and after defendant had undertaken to protect users of the parking lot and stairway.   Plaintiff seeks to recover damages for her injuries incurred in the assault from the defendant.

“The first amended complaint contains two causes of action, the first predicated upon a theory that special facts, specifically alleged, created a ‘special relationship’ between the plaintiff and defendant giving rise to a duty to warn her of, and protect her against, the anticipated criminal conduct of would-be assailants, and the second founded upon a theory that defendant is liable under § 835 of the California Government Code for having maintained a ‘dangerous condition ’ on its property, which in combination with the wrongful criminal act of a third party, caused the injuries in question.”   (Emphasis added.)

 (We observe initially that insofar as the complaint may be deemed to rest upon the failure of defendant to provide sufficient police protection to plaintiff and others, it states no cause of action.  “A public entity is specifically immunized from liability for such failure by Government Code section 845.”  Slapin v. Los Angeles International Airport (1976) 65 Cal.App.3d 484, 487, 135 Cal.Rptr. 296.)

 We consider now, plaintiff's contention that the defendant had “a duty to warn her of ․ the anticipated criminal conduct of would-be assailants.”

We are of the opinion that the contention was resolved adversely to plaintiff by Hayes v. State of California (1974) 11 Cal.3d 469, 113 Cal.Rptr. 599, 521 P.2d 855, where a state agency had failed to warn Hayes of the danger of recurrent criminal assaults upon those using the agency's public beach.   The high court, unanimously concluding there was “no duty to warn against criminal conduct,” continued:

“Under other circumstances, it is conceivable liability might be imposed in the absence of a physical defect, but we must conclude there was no duty to warn against criminal conduct.

“While we acknowledge that the warning called for by plaintiffs might be beneficial in some instances, both public awareness of the prevalence of crime and policy factors militate against imposing a governmental duty to warn in circumstances such as these.

“First, it is indisputable that the public is aware of the incidence of violent crime, particularly in unlit and little used places.   Thus, it would serve little purpose for government to further remind the public of this unfortunate circumstance in society.

 “Next, to the extent warning of past criminal conduct might serve a beneficial purpose, it—unlike cautioning against a specific hazard in the use of property—admonishes against any use of the property whatever, thus effectively closing the area.   But determining and regulating the use of public property are better left to legislative and administrative bodies, rather than to the judiciary.

“Finally, the disquieting spectre of warning signs hanging in areas where crime has occurred—not unlike the leper's bell—manifests the unreasonableness of the duty sought to be imposed by plaintiffs on their government.”  (11 Cal.3d at pp. 472–473, 113 Cal.Rptr. 599, 521 P.2d 855.)

We further observe that no contention is made that plaintiff had no knowledge of the prevalence of crime upon defendant's campus.   And here the “disquieting spectre of warning signs” throughout defendant's campus where “thick and untrimmed foliage” is to be found, is easily discerned.

We are unpersuaded by plaintiff's argument that a “special relationship” between her and defendant college existed, requiring, under Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334, special notice to her of criminal activity on the campus.   Tarasoff v. Regents of University of California 's special relationship was founded upon a university's knowledge that a specified individual who had been under its medical restraint, had threatened to kill plaintiff Tarasoff's daughter.   No warning was given by the university to the designated victim who was thereafter killed, as threatened.   Such a relationship does not appear here, where the criminal threat knowingly appeared to all women on the campus.   As stated in Hayes v. State of California, supra, “both public awareness of the prevalence of crime and policy factors militate against a governmental duty to warn in circumstances such as these.”

We advert now to a more troublesome issue, defendant's claimed liability in damages for “having maintained a ‘dangerous condition’ on its property which, in combination with the wrongful criminal act of a third party, caused the injuries in question.”

The Tort Claims Act is the measure of such rights as plaintiff here may have.   As to claims not authorized by it, the state continues to have immunity:  “Except as otherwise provided by statute:  (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person․”  (Gov.Code, § 815.)   And:  “There is no common law governmental tort liability in California;  and except as otherwise provided by statute, there is no liability on the part of a public entity for any act or omission of itself, a public employee, or any other person.”  (Cowing v. City of Torrance, (1976) 60 Cal.App.3d 757, 761, 131 Cal.Rptr. 830.)

Plaintiff's rights, if any, are thus derived from Government Code section 835, providing, as relevant:

“Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred․”  (Emphasis added.)

“Dangerous condition of its property,” within the meaning of section 835 is defined by Government Code section 830, subdivision (a):

“ ‘Dangerous condition’ means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used․”

The definition has many times been elaborated by the state's reviewing courts.

In reference to Government Code section 835's predecessor statute of like language and import (see Hayes v. State of California, supra, 11 Cal.3d 469, 472, fn. 2, 113 Cal.Rptr. 599, 521 P.2d 855), we long ago held in Jones v. Czapkay (1960) 182 Cal.App.2d 192, 203, 6 Cal.Rptr. 182, that “dangerous condition ” of property means property which is “dangerous or defective either structurally or by way of [its] general use and operation.”   We there said:  “The section has always been considered to mean just what it says, that it is the condition of property that determines the waiver of the immunity and not the condition of persons on that property.   The public streets complained of were not dangerous or defective either structurally or by way of their general use and operation.   Neither the county nor the city is an insurer of the public ways within their respective jurisdictions against moving objects not controlled by them or wrongful acts of third parties.”  (Latter emphasis added.)

The same rule was recently iterated in Hayes v. State of California, supra, 11 Cal.3d 469, 113 Cal.Rptr. 599, 521 P.2d 855, where the plaintiffs were assaulted on a public beach “owned, maintained, and managed,” by the state.   On demurrer they asserted a right to amend their complaint to allege (as was here alleged) a “dangerous condition of public property” and a “failure to warn ” them of such condition.   The trial court declined to allow the amendment, and the high court affirmed, saying:  “Liability for injury caused by a dangerous condition of property has been imposed when an unreasonable risk of harm is created by a combination of defect in the property and acts of their parties․  However, courts have consistently refused to characterize harmful third party conduct as a dangerous condition—absent some concurrent contributing defect in the property itself.  (See, e.g., Jones v. Czapkay (1960) 182 Cal.App.2d 192, 203, 6 Cal.Rptr. 182․)  All are based on some physical feature.   There is no suggestion in the instant case that a defect in the property itself contributed to the assault.”

 It is sufficient, as suggested by Hayes v. State of California, supra, in order that the public entity may be held liable, that the claimed injury result from a third party's conduct and “some concurrent contributing defect in the property itself”;  the dangerous condition need not be the sole cause.   But there must in any event be a “structural defect in the property itself” either, as we said in Jones v. Czapkay, supra, “structurally or by way of [its] general use and operation.”

Illustrations where such a dangerous condition of property might exist, not structurally but because of “its general use and occupation” are where, a greatly increased traffic flow rendered obsolete and dangerous a busy thoroughfare's intersection design (Baldwin v. State of California (1972) 6 Cal.3d 424, 99 Cal.Rptr. 145, 491 P.2d 1121), and where a heavily traveled freeway reasonably required a median barrier between opposite lines of traffic (Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 159 Cal.Rptr. 835, 602 P.2d 755).

For other statements of the rule that for application of the Tort Claims Act there must be a “physical defect” of the public property “either structurally or by way of [its] general use and operation,” see Baldwin v. Zoradi (1981) 123 Cal.App.3d 275, 291, 293, 176 Cal.Rptr. 809;  Moncur v. City of Los Angeles (1977) 68 Cal.App.3d 118, 123, 137 Cal.Rptr. 239.   And see Bartell v. Palos Verdes Peninsula Sch. Dist. (1978) 83 Cal.App.3d 492, 497, 147 Cal.Rptr. 898, which recently emphasized the rule of Hayes v. State of California, supra, that “courts have consistently refused to characterize harmful third party conduct as a dangerous condition—absent some concurrent contributing defect in the property itself.”

We are neither advised of, nor do we find, authority, decisional or in reason, where the landscaping or beautification of public parks, or highways, or college campuses, with trees and shrubbery, behind which criminals might lurk unseen before attacking their victims, constitutes a physical defect in the property itself, “either structurally or by way of their general use and operation.”

As stated by Hayes v. State of California, supra, the threat of crime is an “unfortunate circumstance in our society,” but coping with it will not reasonably entail the placement of verdant landscaping upon public property only under pain of public liability for criminal activity perpetrated by means of its coverage.   The implications of a rule equating such landscaping with negligence, we think, are staggering.   It would tend to desolate all public grounds.   And continually trimming low lying, “unreasonably thick and untrimmed foliage,” as suggested by plaintiff, in order that persons lurking behind it might be foreseen, would manifestly destroy most of it and entail enormous public cost.

Nor, do we think, is it reasonably an answer to say that attending litigation would create but an issue of fact for a court's or jury's resolution, which may or may not be favorable to the tort claimant.   Those situated as defendant is here, whose only purpose is to beautify, and better, the quality of our present day existence should not, in the overall public interest, reasonably be exposed to such travail.

We are of the opinion that despite the prevalence of crime in our society today, the probability that any particular public landscaping effort or design would somehow aid in criminal activity, is nevertheless slight and remote, and not reasonably foreseen.   It has long been the law, as explained by Mr. Witkin, that:

“Where, subsequent to the defendant's negligent act, an independent intervening force actively operates to produce the injury, the chain of causation may be broken.   It is usually said that if the risk of injury might have been reasonably foreseen, the defendant is liable, but that if the independent intervening act is highly unusual or extraordinary, not reasonably likely to happen and hence not foreseeable, it is a superseding cause, and the defendant is not liable.”  (4 Witkin, Summary of Cal.Law (8th ed. 1974) Torts, § 628, p. 2910.)

 Applying this rule and the above-noted principles expounded by Hayes v. State of California, supra, 11 Cal.3d 469, 113 Cal.Rptr. 599, 521 P.2d 855;  Jones v. Czapkay, supra, 182 Cal.App.2d 192, 6 Cal.Rptr. 182, and their companion cases, we conclude that plaintiff's first amended complaint did not state a cause of action against the defendant college.   And accordingly we discern no judicial error.

The judgment of dismissal is affirmed.

While I agree with the majority's reasoning and conclusion that no action is stated on a theory of “special relationship” giving rise to a duty to warn against a potential criminal assault, I disagree with its conclusion on the “troublesome issue” whether liability can attach on a theory of maintaining a “dangerous condition,” an inquiry essentially factual in nature.  (Bakity v. County of Riverside (1970) 12 Cal.App.3d 24, 30–32, 90 Cal.Rptr. 541, and cases there cited.)   Under rudimentary principles governing review of a judgment of dismissal grounded upon a general demurrer (White v. Davis (1975) 13 Cal.3d 757, 765, 120 Cal.Rptr. 94, 533 P.2d 222), plaintiff student has adequately pled—and is entitled to prove—whether the foliage-overgrown stairway from the school parking lot constituted a dangerous condition when combined with a criminal agency, under circumstances involving similar attacks under similar conditions.  (Cf. Slapin v. Los Angeles International Airport (1976) 65 Cal.App.3d 484, 135 Cal.Rptr. 296 [actionable assault committed on dimly lit parking lot].)   I would distinguish our decision in Sykes, which turned solely on a failure of proof, and limit our holding in Jones v. Czapkay (1960) 182 Cal.App.2d 192, 6 Cal.Rptr. 182 (decided before the 1963 enactment of the California Tort Claims Act) to its peculiar factual allegations.

I believe the precise question should be tested under the reasoning advanced in Slapin v. Los Angeles International Airport, supra, 65 Cal.App.3d 484, 489–490, 135 Cal.Rptr. 296, whose rationale was explicitly endorsed by our high court in Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 715, 159 Cal.Rptr. 835, 602 P.2d 755.   Under that analysis, plaintiff should be entitled to show whether liability exists as a result of a combination of a foreseeable external danger and the public entity's failure to take reasonable protective measures.   Moreover, as in Slapin, I would distinguish Hayes v. State of California (1974) 11 Cal.3d 469, 113 Cal.Rptr. 599, 521 P.2d 855, which did not involve a specific defect in the property, as herein alleged.  (Slapin, supra, 65 Cal.App.3d at p. 490.)

I do not subscribe to the majority's dire prediction that merely by recognizing the injured plaintiff's right to prove her claim founded on basic principles of tort law we will somehow encourage widespread and costly defoliage operations.   It is only in the area or places where a duty of care exists as a result of a dangerous condition involving foreseeable harm that liability can be asserted and—if proved—damages recovered.   If that requires that reasonable protective measures be undertaken in order to prevent harm to innocent student-users, then—I submit—the policy of the law is served rather than defeated.

I would reverse the judgment as to the second cause of action.

 ELKINGTON, Associate Justice.

NEWSOM, J., concurs.