SALLY v. ORANGE GLEN ESTATES HOMEOWNERS (1986)

In their actions for negligence and negligent infliction of emotional distress, Sally G. and her five-year-old son, Tom, allege they were injured when a third person sexually assaulted and battered Tom on property owned and maintained by the Orange Glen Estates Homeowners Association (Association) and the Bank of America (Bank).   Arguing Sally and Tom had no special relationship with them and hence were owed no duty of care, the Association and the Bank demurred.   The trial court granted the demurrer without leave to amend to the first amended complaint.   We conclude the trial court erred in granting the demurrer and reverse.

OVERVIEW OF PLAINTIFFS' ALLEGATIONS AND PROCEDURAL BACKGROUND

In their amended complaint, Sally and Tom allege that on January 12, 1984, Tom was sexually assaulted and battered by twelve-year-old James Doe in the Orange Glen Estates' recreation clubhouse which was “owned, maintained, controlled, managed and operated” by the Association and the Bank.   Sometime during the assault, Sally entered the clubhouse and saw “her son's clothes in disarray and other evidence of the molestation.”   Sally and Tom further allege the clubhouse was “being used by delinquent adolescents and other third parties for wrongful and criminal activity ․ involv[ing] ․ alcohol and drug abuse ․ breaking empty bottles of alcoholic beverages on the street”, vandalization of clubhouse furniture, recreational equipment and appliances.   Additionally, they allege on one occasion an Orange Glen Estate resident attempted to prevent this adolescent misconduct resulting in that resident's discovery his tires had been slashed and his bicycle had been stolen.   Finally, alleging the clubhouse was known as the “hotel” by the delinquent adolescents resulting in the inability of residents to use the recreational facility of the clubhouse, Sally and Tom allege the Association and the Bank knew or, in the exercise of reasonable care, should have known, the clubhouse was being used for such wrongful and criminal activity ¹ and that such conduct was a danger to anyone who went into or near the vicinity of the clubhouse, but failed to take any precautions to protect plaintiffs and others from the wrongful and criminal activity;  failed to warn them of the cited misconduct;  and failed to control both access to the clubhouse and the attendant criminal activity, thus affording “an opportunity to the delinquent adolescents and other third parties to commit wrongful and criminal activity upon the premises, ․”  Having so alleged, Sally and Tom sought recovery for negligence and negligent infliction of emotional distress from the Association and the Bank.²

The Association and the Bank demurred to the first amended complaint, arguing the allegations were factually insufficient to demonstrate a “duty” owing the plaintiffs.   The trial court sustained this second demurrer without leave to amend.

THE TRIAL COURT ERRED IN FINDING THE ALLEGATIONS INSUFFICIENT TO STATE A NEGLIGENCE CAUSE OF ACTION

On appeal, Sally and Tom assert their allegations sufficiently state a cause of action sounding in negligence.   In reviewing this contention, we preliminarily note the demurrer limits the record in this case to the complaint itself (Childs v. State of California (1983) 144 Cal.App.3d 155, 160, 192 Cal.Rptr. 526) and admits the truth of all properly pleaded allegations (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496, 86 Cal.Rptr. 88, 468 P.2d 216).   Whether plaintiff can prove these allegations are not a matter of concern, for plaintiff need only plead facts showing entitlement to some relief (ibid.) within a context where the allegations are liberally construed with a view to attaining substantial justice between the parties (King v. Central Bank (1977) 18 Cal.3d 840, 842, 135 Cal.Rptr. 771, 558 P.2d 857).  (See Gonzales v. City of San Diego (1982) 130 Cal.App.3d 882, 884, 182 Cal.Rptr. 73;  Keyes v. Santa Clara Valley Water District (1982) 128 Cal.App.3d 882, 885, 180 Cal.Rptr. 586.)

 We approach our analysis mindful that judicial treatment of the concept of “duty” within the negligence context has left a legacy of analytical confusion.   Analysis of liability for negligence within the context of “duty” has been criticized as a “question-begging process”;  for, “duty” it is not sacrosanct or an immutable fact of nature, but only a shorthand expression of the sum total of public policy considerations which lead the law to protect a particular plaintiff from harm.  (Ballard v. Uribe (1986) 41 Cal.3d 564, 572, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624;  Dillon v. Legg (1968) 68 Cal.2d 728, 734, 69 Cal.Rptr. 72, 441 P.2d 912;  J'aire Corp. v. Gregory (1979) 24 Cal.3d 799, 803, 157 Cal.Rptr. 407, 598 P.2d 60;  Marois v. Royal Investigation & Patrol, Inc. (1984) 162 Cal.App.3d 193, 197, 208 Cal.Rptr. 384;  Myers v. Quesenberry (1983) 144 Cal.App.3d 888, 891, 193 Cal.Rptr. 733;  Elam v. College Park Hospital (1982) 132 Cal.App.3d 332, 338–339, fn. 7, 183 Cal.Rptr. 156.)   In fact, the general rule in California is that all persons have a duty to employ ordinary care to prevent others from being injured as a result of their conduct.  (Ballard v. Uribe, supra, 41 Cal.3d at p. 572, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624;  Rowland v. Christian (1968) 69 Cal.2d 108, 112, 70 Cal.Rptr. 97, 443 P.2d 561.)   Thus, any “duty” analysis must begin “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.”  (Elam v. College Park Hospital, supra, 132 Cal.App.3d at p. 339, 183 Cal.Rptr. 156.)   Liability for negligent conduct is therefore the rule, as no exception is to be made unless clearly supported by public policy considerations.  (Id.;  Rowland v. Christian, supra, 69 Cal.2d at p. 112, 70 Cal.Rptr. 97, 443 P.2d 561.)   Consequently, “[t]he relevant inquiry in cases as this is whether public policy considerations justify a departure from the general rule that persons will be held liable for their failure to act reasonably.   The issue is one of legal remedy, not ‘duty.’   In cases where liability is restricted, society is not intending to foster unreasonable conduct;  rather, other policy interests are seen as being adversely affected if defendants' conduct and decisions are subject to judicial scrutiny and sanctions [citation].”  (Hucko v. City of San Diego (1986) 179 Cal.App.3d 520, 524, 224 Cal.Rptr. 552.)

“Any departure from the fundamental principle involves the ‘balancing of a number of considerations;  the major ones are the forseeability of harm to plaintiff, 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.]’ ”  (Becker v. IRM Corporation (1985) 38 Cal.3d 454, 467, 213 Cal.Rptr. 213, 698 P.2d 116 quoting Rowland v. Christian, supra, 69 Cal.2d at pp. 112–113, 70 Cal.Rptr. 97, 443 P.2d 561;  Ballard v. Uribe, supra, 41 Cal.3d at p. 572, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624.)

Moreover, in determining whether on these pleadings “liability” can be imposed if negligence is proved, we are further guided by “history, our continually refined concepts of morals and justice, the convenience of the rule, and social judgment as to where the loss should fall.”  (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36;  see Elam v. College Park Hospital, supra, 132 Cal.App.3d at p. 340, fn. 9, 183 Cal.Rptr. 156.)

 Historically under the common law, one could not be held liable for failing to control the conduct of another or to warn of impending peril created by such conduct.  (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 203, 185 Cal.Rptr. 252, 649 P.2d 894;  Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 435, 131 Cal.Rptr. 14, 551 P.2d 334;  Rest.2d Torts, § 314.)   However, liability may arise “․ where ‘(a) a special relation exists 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 exists between the actor and the other which gives the other a right of protection.’ ”  (Petersen v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 806, 205 Cal.Rptr. 842, 685 P.2d 1193, quoting Rest.2d Torts, § 315.)   The relation between a landowner and members of the public who enter in response to the landowner's invitation is widely recognized as such a duty-bound relationship.  (Id.;  Anaya v. Turk (1984) 151 Cal.App.3d 1092, 1098, 199 Cal.Rptr. 187;  Rest.2d Torts, § 314A.)   Here, however, Sally and Tom do not allege such a relationship.   Indeed, they do not allege they or the assailant James have any prior relations whatsoever with either the Association or the Bank.   Both the Association and the Bank find the absence of this special relationship fatal to imposing “duty” and urge us to stop our analysis here.³  This we cannot do.⁴  The Supreme Court in Rowland v. Christian, supra, 69 Cal.2d at pages 112–113, 70 Cal.Rptr. 97, 443 P.2d 561, clearly held a plaintiff's status vis-a-vis a landowner does not solely determine the landowner's liability.

“The proper test to be applied to the liability of the possessor of land in accordance with section 1714 of the Civil Code ⁵ is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others, and, although the plaintiff's status as a trespasser, licensee, or invitee may in light of the facts giving rise to such status have some bearing on the question of liability, the status is not determinative.”  (Id. at p. 119, 70 Cal.Rptr. 97, 443 P.2d 561.)

Thus, the respective statuses of Sally, Tom and James must be seen only as considerations in the further analysis of “duty,” an analysis to which we now turn.  (See, e.g., Pamela L. v. Farmer (1980) 112 Cal.App.3d 206, 211, 169 Cal.Rptr. 282.)

Although arguably accepting the propriety of applying the Rowland liability analysis in this case, the Association argues Rowland involved physical defects in the condition of the defendant's property and therefore is not “dispositive authority” when the control of a third person's conduct is at issue.   This argument simply recasts the Association and the Bank's previous assertion that, in these circumstances, a special relationship is a sine qua non to their liability.   However, as discussed above, the relations, or more properly the absence of relations, between the litigants is a factor in the liability equation, not determinative of it.  (Petersen v. San Francisco Community College Dist., supra, 36 Cal.3d at pp. 805–806, 205 Cal.Rptr. 842, 685 P.2d 1193;  Anaya v. Turk, supra, 151 Cal.App.3d at p. 1098, 199 Cal.Rptr. 187.)   Moreover, in their complaint Sally and Tom allege the Association and the Bank failed to maintain or monitor the clubhouse so as to deny delinquents access to the premises and that this failure “created a situation which afforded an opportunity to the delinquent adolescents and other third parties to commit wrongful and criminal activity upon the premises, ․”  Thus, Sally and Tom do, in part, premise the Association and the Bank's liability on the condition of the property.   Our courts have consistently affixed liability when injury results from the combination of a defect in the property and acts of third persons.  (Hayes v. State of California (1974) 11 Cal.3d 469, 472, 113 Cal.Rptr. 599, 521 P.2d 855.)

 The first of the Rowland factors is foreseeability of harm to the plaintiff, which not only plays a significant role in this calculus but also constitutes perhaps the most controversial of the cited considerations.   In determining “duty,” a court's task “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.”  (Ballard v. Uribe, supra, 41 Cal.3d at p. 572, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624.)   Accordingly, within a general context here, it is imminently foreseeable the condition of the property (the clubhouse) may contribute to or facilitate the wrongful acts of third persons, resulting in the kind of harm Sally and Tom suffered.

 The remaining Rowland factors or policy considerations do not convince us that negligence liability within this context should be restricted.   Preliminarily, the certainty of the plaintiffs' injuries cannot be disputed.   Secondly, the closeness of the nexus between the defendants' conduct and the injuries suffered is readily ascertainable by proof later in the proceedings.   Plaintiffs have adequately alleged not only defendants' ownership, maintenance, and obligation to control and manage the clubhouse, but also their failure to do so when aware, or constructively so, the clubhouse was being used by delinquent adolescents and other third parties for wrongful and criminal activity and had become known as a safe haven for such wrongful conduct.   The alleged failure to act in a reasonable manner to prevent such use of the clubhouse, and thus indirectly any resulting criminal conduct, essentially creates an attractive nuisance for adolescents to predictably act in the cited manner.   There appear to be no significant practical problems inherent in requiring landowners to use ordinary care in maintaining, controlling, managing and operating a clubhouse so as to avoid encouraging wrongful and criminal conduct.   Indeed, just as our society has enacted and enforced Penal statutes to discourage criminal conduct, so should landowners be obligated to exercise reasonable and ordinary care in managing their property so as not to encourage wrongful or criminal activity by others.   In other words, our declaration does not impose an onerous and vague burden of control of third persons upon a landowner;  rather, we merely state the landlord's traditional obligation to maintain property in a reasonably safe condition by recognizing that “safe premises” require the landowner take into account reasonably foreseeable misconduct of third persons.   Thirdly, mindful of the defendants' alleged actual or constructive knowledge of the use of the clubhouse for wrongful and criminal conduct of nonresidents, moral blame attaches to their total disregard to the health and safety of persons who may be victimized by the abandonment of the clubhouse to the juvenile delinquents and their criminal activity.   Fourthly, as to the policy of preventing future harm, to hold otherwise would discourage landowners and others in similar situations from taking reasonable remedial measures to maintain premises so as to avoid the harm and conduct which occurred here.   Finally, because imposing liability furthers the policy of preventing future harm while placing no new or greater duty on landowners other than to maintain their property in a reasonably safe condition, the value to the community of not restricting negligence liability here is apparent.⁶

While explaining the variety of roles “foreseeability” plays in tort doctrine, the Supreme Court in Ballard v. Uribe, supra, 41 Cal.3d at page 572, footnote 6, 224 Cal.Rptr. 664, 715 P.2d 624, described the trier-of-fact's consideration of the concept in comparison to the court's task within a “duty” analysis (supra ), stating:

“The jury, by contrast, considers “foreseeability” in two more focused, fact-specific settings.   First, the jury may consider the likelihood or ‘foreseeability’ of injury in determining whether, in fact, the particular defendant's conduct was negligent in the first place.   Second, foreseeability may be relevant to the jury's determination of whether the defendant's negligence was a proximate or legal cause of the plaintiff's injury.”

Within this “negligence,” rather than “duty,” context, the defendants argue the complaint fails to state a cause of action sounding in negligence because the risk Tom would be sexually assaulted by a third party within the abandoned clubhouse was not reasonably foreseeable.   Although foreseeability is usually a question of fact for the jury (Weirum v. RKO General, Inc., supra, 15 Cal.3d at p. 46, 123 Cal.Rptr. 468, 539 P.2d 36), it may be resolved as a question of law where within an undisputed factual record there is no room for a reasonable difference of opinion (Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 56, 192 Cal.Rptr. 857, 665 P.2d 947).   This is not such a case.

 Preliminarily, in pursuing this inquiry, we review the “totality of the circumstances” of the case including the nature, condition and location of the defendants' clubhouse.  (Isaacs v. Huntington Memorial Hosp. (1985) 38 Cal.3d 112, 125–129, 211 Cal.Rptr. 356, 695 P.2d 653;  see Kwaitkowski v. Superior Trading Co. (1981) 123 Cal.App.3d 324, 329, 176 Cal.Rptr. 494.)   Foreseeability of a third person's criminal conduct does not depend upon prior identical or even similar incidents.  (Isaacs v. Huntington Memorial Hosp., supra, 38 Cal.3d 112, 211 Cal.Rptr. 356, 695 P.2d 653.)   In addition,

“ ‘[f]oreseeability is not to be measured by what is more probable than not, but includes whatever is likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it in guiding practical conduct.’  [Citations.]   One may be held accountable for creating even ‘ “the risk of a slight possibility of injury if a reasonably prudent [person] would not do so.” ’  [Citations.]   Moreover, it is settled 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.]”  (Bigbee v. Pacific Tel. & Tel. Co., supra, 34 Cal.3d at pp. 57–58, 192 Cal.Rptr. 857, 665 P.2d 947.)

Considering the case law and the totality of the alleged circumstances, we cannot conclude as a matter of law the injuries to Sally and Tom were unforeseeable.   Rather, in light of the circumstances of modern life and this case, a jury could reasonably find the Bank and the Association should have foreseen that if the clubhouse remained unmaintained and unmanaged, continuation of the unlawful third-party conduct described could cause the harm which actually occurred here within the “inviting” setting of the abandoned clubhouse.   Sally and Tom allege the clubhouse “was being used by delinquent adolescents and other third parties for wrongful and criminal activity,” including illegal drug activity, alcoholic parties during which the premises was strewn with broken glass from empty alcoholic beverage bottles, and the vandalizing and destruction of clubhouse furniture and fixtures.   Moreover, they allege not only the Bank and the Association knew or should have known of the foregoing, but also that the described criminal and wrongful conduct was so extensive the residents were unable to use the clubhouse for their own activities and, when they attempted to do something remedial had their own personal property damaged, i.e., tires slashed.   Indeed, the complaint alleges the availability of the clubhouse for such wrongful and criminal conduct was so reputed in the community it was known to the delinquents and criminal third-parties as “the hotel.”

It is alleged that in spite of the above knowledge, the Bank and the Association took no action to prevent the continued use of the clubhouse for criminal and wrongful conduct.   Given its open and continued use as an oasis for wrongful conduct, one can reasonably infer from the pleadings that delinquent teenagers could be expected to continue to use the clubhouse as a safe haven within which to commit further criminal activity.   Similar to the parking structure in Isaacs v. Huntington Memorial Hospital, supra, 38 Cal.3d at page 130, 211 Cal.Rptr. 356, 695 P.2d 653, and Gomez v. Ticor (1983) 145 Cal.App.3d 622, 628, 193 Cal.Rptr. 600, the nature, condition and location of the clubhouse created “an especial temptation and opportunity for criminal misconduct” increasing the reasonable foreseeability of the assault.⁷  (See also Peterson v. San Francisco Community College Dist., supra, 36 Cal.3d at p. 812, 205 Cal.Rptr. 842, 685 P.2d 1193.)   This “temptation,” or if you will, “attractive nuisance,” consideration is significant within the context of this case, for it is quite predictable juvenile delinquents would, if not denied access, commit criminal or wrongful conduct in the relative privacy of an “abandoned” building like the Orange Glen Estates clubhouse.   The fact the criminal act might have occurred elsewhere were the clubhouse not available, is not a relevant consideration, at least at the demurrer stage, and is purely speculative in any event.   Sexual molestation is the type of crime which rarely occurs in public and, to that extent, certainly the existence of the “safe haven” is causally related to the consummation of this crime.

DISPOSITION

Judgment reversed.

I respectfully dissent.

Sally G. and Tom's amended complaint fails, as a matter of law, to state an actionable cause for negligence.   Specifically, the alleged facts insufficiently demonstrate the injuries to Sally G. and Tom were reasonably foreseeable.   It is often stated what is required to be foreseen is not the precise nature or manner or the event or harm, but rather its general character.  (Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 57–58, 192 Cal.Rptr. 857, 665 P.2d 947.)   Here, the allegations reveal no more than minor incidents of juvenile vandalism and alcohol and drug use.   Even a broad and liberal reading of the allegations fails to reveal an assertion that anyone, other than the defendants themselves, was ever injured by third-party conduct.   There is one allegation a resident's tires were slashed and his bicycle stolen after giving chase to vandals.   However, the complaint subsequently fails to relate the slashing of the tires and the theft of the bicycle to the fleeing perpetrators or their cohorts and further fails to state the closeness in time between the pursuit of the perpetrators and the occurrence of the damage.   Thus, the general character of the alleged misdeeds is unrelated to any harm to others, let alone physical assaults.   This being so, the possibility of a sexual molestation occurring is even more remote.

Moreover, the area surrounding the clubhouse was not alleged to be a high crime area, nor were there any allegations of the frequency and recency of the alleged criminal activities.   Indeed, on this complaint one cannot determine whether the instances of vandalism and drug and alcohol use occurred over either the ten years or the ten days preceding the sexual assault of Tom.   The majority equate the allegation the clubhouse was known as the “hotel” as meaning it was a “safe haven” for criminal conduct or an “attractive nuisance.”  (Majority opn., p. 566.)   However, in the absence of an allegation of continued use of the property for criminal misdeeds, the majority's conclusion is unfounded.   Further, there is no allegation how the adolescents generally or Tom and James specifically gained access to the clubhouse.   For all that appears from the complaint, access may have been had by breaching Fort Knox-like security.   Were fences climbed?   Were locks pryed open?   Or were the premises easily and readily accessible?   Determining the unreasonableness of the Association and the Bank's conduct absent such allegations is an impossible task.

In reviewing the instant complaint, I find nothing in the general character of the alleged criminal activity which indicates a serious and felonious sexual assault should reasonably have been foreseen.   That both the victims and the perpetrator were strangers to the Association and the Bank must, on this complaint, be seen as making more remote and less reasonable the forecasting of an assault.   Frequent crime is an unfortunate companion of modern urban society.   Our awareness of frequent crime makes all crimes, once committed, seem somehow foreseeable.  (See Totten v. More Oakland Residential Housing, Inc. (1976) 63 Cal.App.3d 538, 544, 134 Cal.Rptr. 29.)   This, however, is not the perspective from which the foreseeability of a particular harm can be judged.   On this complaint, reasonable persons would not dispute the lack of foreseeability of harm.   Thus, the Association and the Bank's actions or inactions cannot be seen as unreasonable, that is, as violating a standard of ordinary care, under the alleged circumstances.   Under the facts alleged, defendants simply did nothing wrong.   For this reason, I would find the demurrer was properly sustained.   For the same reason, I believe the majority errs in beginning its analysis with the proposition this complaint sufficiently states plaintiffs' injuries were the result of defendants' want of ordinary care.   And even if this were not the case, there is yet another flaw in the pleading—the failure to state facts sufficient to demonstrate a duty owing Sally G. and Tom.

While I agree the majority has properly framed the duty analysis here and similarly agree the absence of a special relationship does not wholly preclude the imposing of liability, I must disagree with the application of its analysis to the present facts.   The principle enunciated in Civil Code section 1714, that is, everyone is responsible for the harm occasioned by the want of ordinary care in his or her conduct, is firmly embedded in our jurisprudence.   So embedded, it is tempting when discussing negligence to suggest duty is somehow automatically present.   I do not believe this is correct.

Duty is properly seen, as the majority indicates, as the sum of public policy considerations which lead the law to conclude a particular plaintiff is entitled to protection.  (Dillon v. Legg (1968) 68 Cal.2d 728, 734, 69 Cal.Rptr. 72, 441 P.2d 912 [quoting Prosser, Law of Torts (3d ed. 1964) at pp. 332–333, for this proposition].)  These policies are found, if at all, in the circumstances of the particular case.

As mentioned above, the foremost policy affecting liability is the principle embodied in Civil Code section 1714.  (Rowland v. Christian (1968) 69 Cal.2d 108, 112, 70 Cal.Rptr. 97, 443 P.2d 561;  Elam v. College Park Hospital (1982) 132 Cal.App.3d 332, 339, 183 Cal.Rptr. 156.)   In determining liability, this policy is so commanding any exception from it must be supported by statutory mandate or equally clear and countervailing public policy.  (Rowland v. Christian, supra, 69 Cal.2d at p. 112, 70 Cal.Rptr. 97, 443 P.2d 561.)   I find no statute limiting the Association and the Bank's liability here and so turn to other policy considerations.   In a nonexhaustive listing, the California Supreme Court in Rowland v. Christian set out the major policies bearing on a duty analysis.   These include:  “the foreseeability of harm to the plaintiff, 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 the duty to exercise care with resulting liability for breach, and the availability, cost, and prevalance of insurance for the risk involved.”  (Rowland v. Christian, supra, at p. 113, 70 Cal.Rptr. 97, 443 P.2d 561;  accord Becker v. IRM Corporation (1985) 38 Cal.3d 454, 467, 213 Cal.Rptr. 213, 698 P.2d 116.)

In examining the first Rowland consideration, that is, foreseeability of harm to the plaintiff, I am guided by our Supreme Court's recent explanation:  “[A] court's task—in determining ‘duty’—is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.”  (Ballard v. Uribe (1986) 41 Cal.3d 564, 572, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624.)   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 and proximate cause posed to the jury.   In applying the directive of Ballard v. Uribe, the majority conclude that given the “condition of the property”, the harm suffered by Sally G. and Tom was “imminently foreseeable.”  (Majority opn., p. 564.)   The “condition of the property” to which the majority refers and on which it grounds the defendants' negligent conduct is the mismanagement of the clubhouse which, as alleged in the amended complaint, “created a situation which afforded an opportunity to the delinquent adolescents and other third parties to commit wrongful and criminal activity on the premises, ․”  (Emphasis added.)   Thus understood, the characterization of the Association and Bank's negligent misconduct is overly broad.

While the Supreme Court provides no guide to the factual boundary of a “category of negligent conduct”, it is clear such a boundary must be drawn.   If the characterization of a defendant's misconduct was exceedingly general and abstract, arguably any harm suffered by a plaintiff could be linked to the category of the defendant's misconduct.   As can be seen, foreseeability in such circumstances would become meaningless for all harm would be said to be foreseeable.   In turn, its analytical value would become null.   Conversely, if the category of misconduct was bound too closely to the particular facts of the case, the “foreseeability” analysis involved would go beyond the general context identified in Ballard v. Uribe and approach the considerations charged to the jury in determining negligence and proximate cause.   Thus, the characterization of the category of misconduct in Ballard v. Uribe must fall somewhere between the highly abstract and the highly specific, that is, the category of misconduct should be descriptively general, but factually accurate.

So understood, the overgeneralization implicit in the majority's foreseeability analysis is clear.   At most, the allegations categorize the Association and the Bank's misconduct as failing, through property mismanagement, to prevent minor crimes against property and use of controlled substances and alcohol.   Characterized even more generally, the Association and the Bank's misconduct is in not preventing minor criminal activity not involving harm to persons.   By entering this general, yet factually accurate category of misconduct into the Ballard v. Uribe equation, the foreseeability of the sexual assault, viewed by the majority as imminent, shrinks dramatically and is, at most, minimal.   If the alleged failure to prevent this level of criminal activity in and about property is enough to state a justiciable claim for injuries caused when more significant offenses occur, few urban landowners unlucky enough to own the scene of a serious crime will escape the prospect of liability.

The low level of foreseeability is further offset by the remaining Rowland considerations affecting duty.   While the certainty of the plaintiffs' injuries is beyond question, the nexus between the Association and the Bank's conduct and these injuries is assailable.   Sally G. and Tom predicate their respective injuries on James' unsupervised and uncontrolled access to the clubhouse.   However, they do not allege how James attained this access.   On these allegations, we cannot say the harm could have easily been prevented by a functional lock (see Kwaitkowski v. Superior Trading Co. (1981) 123 Cal.App.3d 324, 176 Cal.Rptr. 494) or additional lighting (see Cohen v. Southland Corp. (1984) 157 Cal.App.3d 130, 142, 203 Cal.Rptr. 572).   As framed by their pleadings, Sally G. and Tom effectively assert the Association and the Bank should have dutifully protected them from James' intrusion effected in any manner at any time.   It is thus extremely difficult to say the Association and Bank's failings in maintaining the property, whatever they may be, were closely related to the harm suffered.   Similarly, whatever moral blame should be affixed for this harm would appear to lie more properly with James and his parents, rather than the Association and the Bank.   Also, in these circumstances the remediative burden placed on the Association and the Bank would be both onerous and vague.   No single or simple security measure can be said, with reasonable certainty, to prevent the injuries herein alleged.   Finally, imposing the duty Sally G. and Tom seek would also unquestionably result in two significant indirect burdens identified in Rowland:  increased cost through homeowner association assessments and increased liability insurance premiums (and eventual nonavailability)—costs which in today's world are by no means minimal.

Finally, I find the absence of a special relationship yet another factor weighing against the imposing of liability here.   The majority minimize this consideration by defining the Association and the Bank's negligent conduct as failing to manage and oversee the clubhouse property to protect Sally G. and Tom from the injuries caused by third parties.   However, when faced with a negligence question in this context, our courts have consistently found the presence or absence of a special relationship is an important determinant in imposing liability.  (See, e.g., Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 123–124, 211 Cal.Rptr. 356, 695 P.2d 653;  Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 806–809, 205 Cal.Rptr. 842, 685 P.2d 1193;  Davidson v. City of Westminster (1982) 32 Cal.3d 197, 203–209, 185 Cal.Rptr. 252, 649 P.2d 894;  Richards v. Stanley (1954) 43 Cal.2d 60, 65–66, 271 P.2d 23;  Anaya v. Turk (1984) 151 Cal.App.3d 1092, 1098, 199 Cal.Rptr. 187.)   For example, the Supreme Court in Richards v. Stanley, supra, held, absent a special relationship, an owner or bailee of a car who leaves the key in the ignition and the car parked on a public street will not be liable for the injuries caused by a thief's negligent driving.  (Id. 43 Cal.2d at pp. 65–66, 271 P.2d 23.)   The burden of protecting would-be plaintiffs from harm caused by third parties may be onerous, and the courts in the above cited cases have implicitly or explicitly recognized the potential magnitude of such a task.  (See Rest.2d Torts, §§ 314, 314A, 315 and accompanying comments and illustrations.)   In the present case, the absence of a special relationship, indeed any relationship, between the defendants and the plaintiffs, though not automatically precluding liability, certainly argues against imposing it.

In balancing the above policy considerations and paying particular attention to Sally G., Tom and James' status as strangers, I find the trial court did not err in finding the Association and the Bank had no duty toward Sally G. and Tom and would thus affirm the sustaining of the demurrer without leave to amend.

FOOTNOTES

1.   They also allege one resident had contacted the Bank previously and informed it of the wrongful criminal activity taking place in the clubhouse.

2.   In addition, Sally and Tom brought an action for assault and battery and negligent infliction of emotional distress against James and negligence actions against James' parents.

3.   As this court recently stated in Hucko v. City of San Diego, supra, 179 Cal.App.3d at page 523, 224 Cal.Rptr. 552, “[t]he notion that a person has ‘no duty to use due care’ strikes a discordant note in the modern psyche.   One would think we have progressed beyond the view proffered by the court in Le Lievre v. Gould (1893) 1 Q.B. 491, 497 that ‘[a] man is entitled to be as negligent as he pleases towards the whole world if he owes no duty to them.’   The question is not so much ‘duty’ to the extent that word as a legal term of art still connotes ‘obligation’ or ‘responsibility.’   Everyone should be obliged to act reasonably.  [Citations.]”   Logically, this leads us to our inquiry into whether the public policy considerations justify a departure from the general rule all persons will be held liable for their failure to act reasonably.

4.   Nor, as the Association and Bank argue, does Totten v. More Oakland Residential Housing, Inc. (1976) 63 Cal.App.3d 538, 134 Cal.Rptr. 29, compel us to foreshorten our analysis.   In that case, the appellate court predicated the absence of duty on both the lack of a special relationship and the unforeseeability of the plaintiff's injuries.  (Id. at pp. 542–546, 134 Cal.Rptr. 29.)

5.   Civil Code section 1714 as stated at the time of the Rowland decision provided:  “Everyone is responsible, not only for the result of his willfull acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself․”

6.   The dissent correctly asserts we have given little comparative weight to the absence of a special relationship as another factor weighing against imposing liability here.   However, we have done so only because under these circumstances its value is comparatively diminished when weighed against the other factors within the balancing process.   Defendants' alleged negligent conduct threatens to the same degree all potential victims regardless of their technical relationship to the landowner or their status on the property.   The child of a tenant is no more vulnerable to this kind of criminal conduct than any other neighborhood child living in close proximity to the clubhouse.

7.   Granted, frequent crime is an unfortunate by-product of modern urban society;  however, our concern is whether defendants' alleged conduct and complete failure to act promoted or invited the continuation of criminal activity.   In other words, within this context, criminal activity subtly encouraged by the defendants' nonfeasance begets further criminal activity and foreseeable harm.

WORK, Associate Justice.

BUTLER, J., concurs.