J & N REALTY, INC.

Third-Party Premises Liability Claims  

The California Supreme Court in Saelzler v. Advanced Group 4001 continued its recent trend of ruling in favor of defendant landowners in premises liability actions involving third-party criminal conduct.  Unlike other recent decisions in which the court grappled with questions regarding the scope of a landowner’s duty, Saelzler focused the court’s attention on the causation element—more specifically, the cause-in-fact prong of causation.  Indeed, the Saelzler court limited its discussion to cause in fact, since the defendants, for the purpose of their summary judgment motion, had conceded the elements of duty and breach. 

In a sharply divided 4-3 decision, the court affirmed summary judgment, holding that the plaintiff had failed to carry her burden in establishing cause in fact. 

The event at the heart of the case occurred on March 15, 1996, in midafternoon.  Marianne Saelzler, a Federal Express employee, arrived at the Sherwood Apartments Complex in Bellflower, California, to deliver a package.  Upon entering the premises, she saw two men standing beside a propped-open gate leading into the complex.  Walking further, she observed another man.  After an unsuccessful attempt to deliver the package, Saelzler encountered the three men while she was walking on one of the main paths of the complex.  The three men brutally assaulted and attempted to rape her. 

She has not been able to identify her assailants.  Saelzler sued the owners of the apartment complex (referred to collectively as Advanced Group 400) for negligent failure to provide adequate security.  The apartment complex, which spans several acres, is composed of 300 apartment units in 28 buildings and is in a neighborhood plagued by crime that is largely attributable to gang activity.  At the time of the assault, the complex itself offered little refuge from the rampant crime outside its boundaries. 

Instances of gunfire, robberies, rapes, and sexual assaults had occurred previously within the complex.  A notorious street gang reportedly had established its headquarters at the complex and conducted itself with impunity, with its members assaulting and threatening other residents.  In the year preceding the assault upon Saelzler, the police had been called to the complex approximately 50 times, while 45 instances of broken fences or gates and 41 instances of trespasses were also reported.  The prevalence of crime was so well known to the community that pizza delivery persons refused to enter the complex, requesting that residents meet them outside the premises.  Moreover, security personnel routinely escorted the apartment manager to her car.  Despite the frequency of crime, no security guards were on duty when Saelzler was attacked.  Advanced Group 400 hired security to patrol the grounds only at night.  Although recurring crime had prompted police to advise the manager to hire daytime security as well, Advanced Group 400 refused.  Robert Feliciano, a former police officer who served as Saelzler’s expert witness, asserted unequivocally “that [the]…assault and battery, and attempted rape on [Saelzler] would not have occurred had there been daytime security and a more concerted effort to keep the gates repaired and closed.” 

Despite finding “overwhelming evidence” of “recurring criminal activity” in the complex, the superior court granted Advanced Group 400’s summary judgment motion, stating that it was bound by the decisions of the California Court of Appeal in Nola M. v. University of Southern California and Leslie G. v. Perry & Associates.  The lower court ruled that Saelzler had failed to establish the cause-infact prong of her claim.  Saelzler appealed, and the Second District Court of Appeal, in a split decision, reversed the superior court. 

The Supreme Court then reversed the court of appeal. 

The Majority Opinion 

Joined by Chief Justice Ronald George and Justices Marvin Baxter and Janice Brown, Justice Ming Chin authored the majority opinion.  At the outset, the majority framed the issue as “the need to balance two important and competing policy concerns: society’s interest in compensating persons injured by another’s negligent acts, and its reluctance to impose unrealistic financial burdens on property owners conducting legitimate business enterprises on their premises.”  In balancing these interests “consistent with prior case precedent,” and in light of the crucial fact that Saelzler could not identify her assailants, the majority concluded that Saelzler was “unable to prove [that her attackers] would not have succeeded in assaulting her if [Advanced Group 400] had provided additional security precautions.”  Therefore, in reversing the court of appeal, the Supreme Court held “that the trial court properly granted summary judgment to defendants based on [Saelzler’s] failure adequately to demonstrate that [Advanced Group 400’s] negligence was an actual, legal cause of her injuries.”  In reaching its holding, the majority seized upon Saelzler’s failure to introduce any evidence pertaining to the identity of the assailants.  More specifically, she offered no proof as to whether they were residents of the apartment complex or intruders.  This lack of evidence, the majority reasoned, was critical for two reasons.  First, Saelzler had the burden to prove that the assailants would have been deterred by reasonable security precautions.  Saelzler argued that the most important of these security precautions was the presence of security personnel.  Because the assailants were still at large, they were unavailable to testify whether they would have assaulted Saelzler if security guards had been at the apartment complex.  Saelzler thus could not prove that the negligence of Advanced Group 400 caused the assault, since the assailants may have been bold or cunning enough to have attacked her even if reasonable security precautions had been taken. 

Second, and more important, the lack of evidence regarding the identities of the assailants left open the possibility that the assailants could have been tenants or guests rather than trespassers.  According to the majority’s view of the record, it was just as likely that the assailants were lawfully present at the complex as it was that they were trespassing.  Significantly, the court stated that security measures would not have deterred the assailants if they had been lawfully on the premises.  The court linked together the function of security gates and security personnel, stating that the “primary” purpose of these measures is to keep unauthorized persons from entering the apartment complex.  Given this view, and because Saelzler could not prove that her assailants were trespassers, she could not prove that security would have had any effect in deterring or otherwise stopping the assault.  Additionally, despite a declaration from her expert stating that the assault would not have occurred had security guards been present, the majority rejected Saelzler’s contention that guards on patrol would have prevented the attack since assaults and other crimes can and do occur despite the highest level of security.  Characterizing the expert’s opinion as “speculation,” the court stated that Saelzler “cannot show that roving guards would have encountered her assailants or prevented the attack.”  The court demanded a showing from Saelzler that at the time and place of the assault, one or more guards would have been nearby to prevent or otherwise stop the assault.  Without such exacting proof, she had failed to establish causation. 

In reaching its holding, the Saelzler court also approved a line of California Court of Appeal decisions—including Nola M. and Leslie G.—upon which it relied heavily.  In these decisions, the appellate courts, ruling in favor of defendant property owners and/or managers, rejected the plaintiffs’ claims as establishing nothing more than “abstract negligence.”  In describing its concept of abstract negligence, the Saelzler court, quoting Leslie G., declared, “‘Where…there is evidence that the assault could have occurred even in the absence of the landlord’s negligence, proof of causation cannot be based on mere speculation, conjecture and inferences drawn from other inferences to reach a conclusion unsupported by any real evidence, or on an expert’s opinion based on inferences, speculation and conjecture.’” 

The Nola M. court cautioned against making landowners liable for failing to deter the “mindless acts of violence of a third person,” for such liability would “make the landowner the insurer of the absolute safety of everyone who enters the premises.”  Furthermore, in rejecting a “common sense rule” for causation as one that “seemingly would prevent summary judgment on the causation issue in every case in which the defendant failed to adopt increased security measures of some kind,” the Saelzler court, quoting Nola M., 

stated, “‘[I]t would be grossly unfair to permit a lay jury, after the fact, to determine in any case that security measures were “inadequate,” particularly in light of the fact that the decision would always be rendered in a case where the security had, in fact, proved inadequate.…’” 

In its conclusion, the majority emphasized Saelzler’s failure to prove causation.  Despite an extensive period of discovery, Saelzler did not and could not prove that Advanced Group 400’s failure to provide adequate security precautions was a “substantial factor in causing her injuries.”  Because she could not identify her assailants, her contention that adequate security would have prevented her injuries was considered pure speculation, making her proof of causation inadequate to take the issue to a trier of fact. 

The Dissents 

Saelzler contains two dissenting opinions.  One was written by Justice Joyce Kennard and  joined by Justice Kathryn Werdegar.  The other was written by Justice Werdegar and joined by Justices Kennard and Stanley Mosk.  In her dissent, Justice Kennard asserted that the majority’s decision erected “a virtually insurmountable barrier” in front of plaintiffs bringing premises liability actions involving “foreseeable third party criminal acts.”  She sharply criticized the majority’s holding, characterizing the decision as “bending both the rules of summary judgment and the legal causation element of negligence.…”  Justice Kennard claimed that the majority distorted the element of cause in fact by unfairly imposing upon the plaintiff “the burden of showing causation with certainty.” 

Moreover, Justice Kennard contended that the majority misstated the rule pertaining to summary judgment when it concluded that granting summary judgment for a defendant is proper “unless plaintiff proves ‘it was “more probable than not” that additional security precautions would have prevented the attack.’”  Justice Kennard stated that such a rule would allow the trial court to substitute its own judgment for that of a reasonable trier of fact.  With respect to summary judgment, “the critical inquiry,” according to 

Justice Kennard, is “whether the plaintiff has produced evidence from which a reasonable trier of fact could conclude that the evidence is sufficient to establish that an element of the cause of action is more probable than not.” 

In examining the evidence before the court, Justice Kennard stated that common sense would lead a reasonable trier of fact to conclude that Advanced Group 400’s failure to take reasonable security precautions was a substantial cause of Saelzler’s injuries.  In her dissent, Justice Werdegar stated that the majority’s decision had stretched the protection afforded to landlords to a breaking point and, in doing so, “[distorted] the law of causation.”  With regard to sufficient proof of causation, Justice Werdegar attacked the majority’s interpretation of the substantial factor test as improperly requiring Saelzler to prove it was “more probable than not” that Advanced Group 400’s negligence caused her injuries.  The substantial factor test, asserted Justice Werdegar, “‘requir[ed] only that the contribution of the individual cause be more than negligible or theoretical.’”  According to Justice Werdegar, the majority’s improper construction of the substantial factor test shifted the applicable burden of proof to the wrong party, because “it is the defendant [at the summary judgment stage] that has the burden of showing ‘that one or more elements of the cause of action…cannot be established.’”  Therefore, the fact that Saelzler could not exclude the possibility that her assailants were tenants should not have enabled Advanced Group 400 to satisfy its summary judgment burden.  Justice Werdegar also vigorously disputed the majority’s assumption that the primary purpose for hiring security guards is to prevent trespassers from coming onto the property.  A landlord’s primary reason for hiring security guards, contended Justice Werdegar, is to “deter all criminal behavior, not just trespassing, by any person (including tenants, not just unauthorized entrants).” 

According to Justice Werdegar, this “patently false” premise was used by the majority to support its otherwise irrelevant argument that because Saelzler’s assailants could have been residents, and therefore lawfully present on the premises, Saelzler’s claim could not survive summary judgment.  Justice Werdegar argued that Saelzler need not prove that trespassers had assaulted her.  Instead, Saelzler only had to “raise a triable issue as to whether defendants’ failure to provide increased daytime security was a ‘substantial factor’ in causing her injuries.” 

At the end of her opinion, Justice Werdegar stated that it was tragic that Saelzler’s assailants were never caught and brought to justice.  Moreover, “[t]hat [Saelzler] should be barred from the courthouse for this very reason, is both cruelly ironic and legally unjustified.” 

Evidentiary Hurdles 

In one sense, the California Supreme Court’s decision in Saelzler does not dramatically alter the legal landscape in California.  After all, an unbroken line of court of appeal decisions dating back at least to the Noble v. Los Angeles Dodgers, Inc. decision in 1985 established, refined, and broadened the rationale ultimately embraced by the supreme court in Saelzler.  Only the Saelzler court of appeal decision had departed from the previous appellate decisions (which helps to explain why the Supreme Court decided to review the case).  Nevertheless, the importance of the Supreme Court’s decision in Saelzler is that it finally places the imprimatur of the court on the appellate line of cases. 

Saelzler gives landowners a significant opportunity to obtain summary judgment even when evidence of their negligence is overwhelming or they concede that they breached their duty, since the decision imposes a substantial burden on plaintiffs in proving cause in fact.  As a result, many plaintiffs will have difficulty successfully opposing summary judgment motions that hinge on causation. 

More broadly, Saelzler continues the judicial trend in California favoring defendant landowners as opposed to plaintiff victims of criminal attack.  The supreme court’s previous decisions in Sharon P. v. Arman, Ltd. and Ann M. v. Pacific Plaza Shopping Center rested on findings that the defendant land owner owed no duty to the plaintiff—an issue resolved as a question of law.  In Saelzler, the court’s reach, however, went beyond examining duty because the court based its ruling in the defendants’ favor on the cause-in-fact element—an issue ordinarily left to the trier of fact to resolve. 

In the wake of Saelzler, defendants seeking summary judgment based on causation should argue that the plaintiff’s proof of causation amounts to only abstract negligence.  A finding of abstract negligence, according to the court of appeal in Noble, means that the plaintiff has only proven that the defendant’s security measures were inadequate.  Noting that proof of cause in fact requires much more, the Noble court stated, “The purpose of a trial in this type of case is not simply to critique defendant’s security measures and to compare them to some abstract standards espoused by a so-called ‘security expert.’  The objective is to determine whether a particular defendant should, under the circumstances, be held liable for a plaintiff’s injury because of a failure to prevent the criminal actions of a third party.  We submit that causation is a critical question.” 

Therefore, to establish cause in fact, a plaintiff must establish more than just the inadequacy of the defendant’s security measures; the plaintiff must prove a causal connection between the breach of duty and the plaintiff’s harm.  This requires “specific facts” indicating that the assailant committed the assault as a direct result of the breach.  Proving that improved security measures would have actually prevented the crime will be exceedingly difficult in many cases; in others, sufficient proof may be virtually impossible to obtain.  Plaintiffs must present a hypothetical situation in which the requisite security measures were in place before the assailant committed the crime and then prove that these measures would have prevented the assailant from perpetrating the crime. 

To satisfy this burden, plaintiffs may well have to prove who the assailants were, whether the assailants were lawfully on the premises, how the assailants entered the premises, and how adequate security measures would have prevented such entry or otherwise deterred the crime.  Any proof less than this would probably compel judgment for the defendants.  In some situations, the plaintiff would need to have the assailant testify how he or she came onto the property and whether he or she would have been deterred by specific improvements in security.  Because of the majority’s insistence that the overriding purpose of security guards is to keep trespassers off the property, the majority concluded that Saelzler could not prove causation since she failed to prove who the assailants were or whether they were trespassers.  The type of proof demanded requires plaintiffs either to pin their case on the effectiveness and thoroughness of the police investigation or to carry out their own detective work.  This raises obvious practical difficulties.  Plaintiffs may have to pay for and conduct their own investigation to solve a crime that the police themselves could not solve. 

Saelzler argued that it would be “virtually impossible” for plaintiffs to prove causation in cases involving third-party criminal conduct if plaintiffs were required to prove that adequate security measures would have prevented the crime.  The Supreme Court discounted this contention, stating, “We can readily hypothesize cases in which the evidence discloses an actual and substantial causal link between the criminal assault and the defendant’s negligence.”  The court stated what it considered to be probative evidence of cause in fact: “[D]irect or circumstantial evidence may show the assailant took advantage of the defendant’s lapse (such as the failure to keep a security gate in repair) in the course of committing his attack, and that the omission was a substantial factor in causing the injury.  Eyewitnesses, security cameras, even fingerprints or recent signs of break-in or unauthorized entry, may show what likely transpired at the scene.” 

The specific proof required will vary depending upon the plaintiff’s allegations of duty and breach and their factual underpinnings.  Did the plaintiff allege that there were inadequate numbers of security personnel and/or that security personnel were negligently deployed?  Did the plaintiff allege that the defendant breached its duty by failing to provide any security personnel?  Did the plaintiff allege that mechanical security devices, such as security gates, were negligently maintained? 

In a case alleging inadequate deployment and/or insufficient number of security guards, a plaintiff must prove that improved deployment and/or more guards would have prevented the assailant from assaulting the plaintiff.  This type of case may be the most difficult in which to establish causation.  A plaintiff cannot just prove that a different deployment of security would have more effectively deterred crime in general.  Instead, the plaintiff must prove that the actual deployment of security was below the standard of care and that a different deployment would have prevented the plaintiff’s injury.  If the plaintiff can only prove the former but not the latter, the claim is doomed because a court will construe the causation evidence as merely showing abstract negligence. 

In Noble, the court held that the plaintiff had failed to prove that an improved deployment of security guards would have prevented the plaintiff’s injury.  The plaintiff was injured during a brawl in the Los Angeles Dodgers’ parking lot following a baseball game.  Alleging that the Dodgers negligently failed to protect him against assault, the plaintiff retained an expert who opined that the Dodgers should have had more security personnel and that the existing personnel could have been more effectively deployed.  However, the plaintiff’s expert did not state that more security guards “or a different deployment pattern would have prevented the plaintiff’s injury.  In essence, he simply stated that he thought his method of policing the parking lot was better than the one the Dodgers used.”  The court of appeal reversed a jury verdict in the plaintiff’s favor, stating that unless a plaintiff proves that improved security deployment would have prevented the assault, the plaintiff has proven only abstract negligence. 

The issue of security deployment and causation arose again in Nola M., in which the court rejected the plaintiff’s argument that inadequate security and dangerous conditions on the campus of the University of 

Southern California were the cause in fact of her injuries.  The plaintiff was walking by the university credit union at night when she was accosted from behind by an unknown assailant who sexually assaulted her.  The plaintiff sued USC, alleging that the university negligently deployed its security personnel and negligently allowed the foliage surrounding the credit union to become overgrown and dense.  The plaintiff won a jury verdict, which the court of appeal reversed. 

Despite evidence that overgrown foliage surrounded the credit union, the court concluded that the assailant could have hidden in places other than the foliage.  That this possibility could not be negated was supported by the plaintiff’s own testimony, which established that her assailant “came from nowhere, from behind.”  She therefore could not prove that her assailant hid in the foliage.  The court implied that a plaintiff can only satisfy causation by proving with certainty that the defendant’s negligence actually caused the assault.  The court stated that even if the campus were denuded of all foliage, “there would still be no guaranty of safety.”  The number of places where a person could hide demonstrates that “[a]bsolute safety is not an achievable goal.” 

The Nola M. court relied greatly upon Noble, because in both cases security experts had testified that the deployment of the defendants’ security personnel was inadequate.  The Nola M. court found that the plaintiff’s expert, like the expert in Noble, merely criticized the defendant’s deployment of security by indicating only how the deployment could have been improved.  The court faulted the testimony of the plaintiff’s expert because the expert did not establish how his proposed security measures would have prevented the attack. 

In some situations, it is clear that reasonable security measures would never have prevented a criminal attack.  These circumstances often involve extremely disturbed or determined assailants.  This was the case in Lopez v. McDonald’s Corporation.  Equipped with an arsenal of automatic weapons, James Huberty entered a McDonald’s restaurant with the sole purpose of killing as many people as he could.  The rampage left 21 people dead—including Huberty, who was killed by police—and 11 more injured.  Recognizing that McDonald’s owed a general duty to protect its customers, the court determined that protecting customers from a massacre exceeded the scope of that duty.  Upon considering the type and amount of crime in the immediate vicinity of the restaurant, the court stated that at most McDonald’s had a duty to provide an “unarmed, uniformed, licensed security guard.”  The court found that causation posed no triable issue of fact because the plaintiffs did not, and could not, prove that the presence of an unarmed, uniformed security guard would have prevented Huberty’s killing spree.  Referring to the case as a classic example of abstract negligence, the court held that causation could not be established when an assailant was “bent on committing mass murder.” 

Dangerous Conditions 

Apart from cases in which the plaintiff alleges the defendant should have hired security guards are those involving plaintiffs who assert that the condition of the property was unreasonably dangerous.  (Some cases, such as Nola M., involve both allegations.)  In Constance B. v. State of California, an unidentified assailant assaulted the plaintiff at a highway rest stop at night.  The plaintiff alleged that the rest stop was unreasonably dangerous, citing several specific conditions.  After dismissing as insubstantial all but one of the alleged dangerous conditions, the majority stated that the remaining allegation about the poor illumination between the parking lot and the restroom and its causal factor in the assault upon the plaintiff was discredited by the plaintiff’s own evidence.  The undisputed facts showed that the assailant was standing at the “corner of a building whose outside walls were well-illuminated.  The only inference to be drawn is that he was standing in the light.”  Because of the assailant’s apparent boldness, the majority stated that no reasonable trier of fact could conclude that improving the lighting in the area between the parking lot and the restroom would have deterred him from assaulting the plaintiff. 

Leslie G. demonstrates the difficulties plaintiffs may have in proving causation when it is alleged that the defendant negligently failed to maintain security precautions.  In Leslie G., an unknown assailant beat and raped the plaintiff tenant in the parking garage of her apartment building.  She argued that the apartment owners breached their duty by failing to repair a broken security gate leading from the street into the garage.  The plaintiff produced evidence that the gate did not close properly—there was a three-foot gap between the bottom of the gate and the driveway when the gate was closed.  The plaintiff’s security expert opined that the assailant had probably entered the garage through the opening.  Despite the plaintiff’s proof of causation, the trial court granted summary judgment for the defendants.  The court of appeal affirmed, stating that the plaintiff’s proof of causation was insufficient because the plaintiff did not establish that it was “more probable than not” that the rapist had entered the garage by going through the gap created by the malfunctioning gate.  The court considered the security expert’s opinion unpersuasive, characterizing as speculative his testimony that the assailant actually entered the garage through the gap.  According to the court, the inference that the broken gate enabled the assailant to enter the garage was merely one possibility among several. 

The court reasoned that because the plaintiff could not rule out every other possible entry point where the assailant could have entered the garage, a “reasonably probable causal connection” between the malfunctioning gate and the assailant’s presence in the garage was not established.  The court listed several other ways that the rapist could have entered the parking lot, concluding that “[t]hese unknowns are significant because, had the gate been operating properly, the rapist still could have entered the garage.  Moreover, even if it had been working, he could have entered through the security gate itself by waiting outside for a car to enter, ducking beneath the closing gate, and hiding in the garage as he apparently did on the night of Leslie’s rape.”  Under Leslie G., an attorney representing a defendant does not have to be particularly clever to come up with a variety of different possibilities regarding how a specific event, such as an entry onto a property, occurs.  Leslie G., in effect, establishes that a plaintiff must rule out all other possible means of entry by the assailant. 

In reaching its decision in Saelzler, the Supreme Court addressed the testimony of Saelzler’s expert witness.  The court gave virtually no weight to this testimony, even though the expert clearly indicated that the crime would not have occurred had there been security personnel.  Saelzler instructs that such testimony, which the court considered as nothing more than proof of abstract negligence, fails to establish cause in fact.  Expert testimony that relied on evidence indicating how the assailant gained entry onto the property would have been much more useful to Saelzler.  Evidence such as fingerprints, surveillance video footage, eyewitness testimony, or the assailant’s confession would have satisfied the requirement that a plaintiff prove specific facts linking the alleged breach of security to the assault.  It is essential, therefore, for future plaintiffs to ensure that their experts base their opinions on facts that are reasonably probable and not upon “factors which are speculative, remote or conjectural.…” 

In cases involving third-party criminal conduct against defendant landowners, counsel for plaintiffs and defendants will have to pay heed to the California Supreme Court’s decision in Saelzler, which will undoubtedly influence how counsel approach the cause-infect element.  Saelzler provides landowners with a significant opportunity to obtain summary judgment because of the burden imposed on plaintiffs to prove cause in fact just to avoid summary judgment.  Moreover, the implications of the Saelzler ruling on the cause-in-fact requirement may well extend to other types of negligence cases—a concern voiced in the dissents of Justices Kennard and Werdegar.