Tort Law and Criminal Acts  

Saelzler v. Advanced Group 400 (2001), Cal. 4^th [No. S085736]

Kathy Brown was a customer at a Redondo Beach Kentucky Fried Chicken franchise when she was seized and held at gunpoint by an unidentified person.  An employee did not comply promptly with the robber's demands, and Ms. Brown was assaulted.  She sued the franchise.¹  James Huberty entered a McDonald's restaurant in San Ysidro, California heavily armed. He  slaughtered several patrons and employees. The attack generated a number of lawsuits against the McDonald’s Corporation.² Nola M. was attacked and raped on the campus of the University of Southern California. She sued the University.³ In 1985, Ann M. was employed by the Original 60 Minute Photo Company, located in the Pacific Beach area of San Diego.  Shortly after opening the store on June 17, a man, who was armed with a knife, raped Ann M., robbed the store, and fled. He was not apprehended.  Ann M. sued the shopping center property owners.⁴  Leslie M. arrived home at about 2 a.m. on June 15, 1990, used her security access card to enter the apartment building's underground garage, and pulled into her parking space. Leslie was attacked by an unknown assailant who beat her,  raped her, and then fled, never to be caught.  She sued the owners of her apartment building, alleging negligence and "premises liability" arising from a failure to repair a broken security gate.⁵

Each of these cases has been a part of a trend in the civil law---the use of tort legal theories to remedy the suffering  imposed by criminals.  A recent example of this is the multi-million dollar verdict against O. J. Simpson.  Direct recovery from the alleged perpetrators poses no controversy. However, the seeking of such remedies from third parties not associated with the actual crime has been both ground-breaking and provocative. Indeed, entertainer Connie Francis’ ancient lawsuit against an international hotel chain for her in room assault has been linked to peep-holes and self-locking doors for every hotel room—certainly, some would agree, a social good.  The innovations resulting from such litigation have not come without debate and controversy.  A recent decision of the California Supreme Court is a good example.

Saelzler—A New Order?

On May 31, 2001, the California Supreme Court issued its divided opinion in Saelzler v. Advanced Groups 400 ⁷, 25 Cal. 4th 763.  Justice Chin spoke for the majority.  Dissent was offered by Justices Kennard, Werdegar and Mosk.  The opinion decided an appeal from the Second District Court of Appeals opinion, cited at footnote 6.  The opinion may very well signal a new direction for cases involving intervening criminal conduct and allegations of negligent failure to provide security by landowners or businesses.

On March 15, 1996, Marianne Saelzler, as an employee of Federal Express, had gone to the Sherwood Apartment complex in Bellflower in midafternoon to deliver a package to a resident. Unable to deliver the package because the resident was not at home, she returned down a walk path with the package in hand when she was confronted by three men.   The three beat her and attempted to rape her, inflicting serious injuries.  Her assailants fled and were never apprehended.  She sued the apartment complex owners alleging they knew that dangerous persons frequented their premises, and nonetheless failed to maintain the premises in a safe condition, failed to provide adequate security, and failed to warn others of the unsafe conditions.

The case was filed in the gritty southeast Norwalk district of Los Angeles County Superior Court.  The trial judge granted the defense motion for summary judgment, which was reversed on appeal to the Second District.

In law school, we are taught the fundamental elements of negligence, which includes proximate causation.   We are taught the significance of “special relationships” between employer-employee,  and business owner-invitee.  Eventually, we are introduced to Section 344 of the Restatement of Torts, Second which elaborates for land/business owners the concept of being held responsible for omission or passive negligence---failing to take affirmative action, something tort law traditionally tries to at least hold in check.⁸  The realities of street law and a few years at either defending, prosecuting, or both, such claims, teaches us that advocacy and theory are not parallel paths.

Litigation Forces

Invariably, at play in the Saelzler facts and cases similarly situated are some or all of the following probable components:

• Huge economic damages for horrendous physical injuries and extensive income loss.  This has significance if there are multiple defendants.  If the case gets to a jury, the jury will be deciding “PERCENTAGES” of fault.  With respect to economic or out of pocket damages (medical costs, and loss of earnings, past and present), responsibility can still be imposed upon any defendant(s), jointly and severally pursuant to the results of the Proposition 51 initiative codified in Civil Code,Section 3333.4.  This makes irrelevant the inability to pay of any one of multiple defendants as long as one deep pocket exists.  . 
• Huge Medi-Cal or worker’s compensation insurance claims/liens which are imposed against any potential recovery.  This affects potential settlement options.  The cases very often become “all or nothing” propositions because offers are simply inadequate to meet the thresholds set forth by the competing economic interests inevitably involved in the presentation of a large loss claim. (See, for example, the facts in Robison v. Six Flags Theme Parks, (1998) 64 Cal.App.4th 1294, 75 Cal.Rptr.2d 838  )
• Insurance coverage questions.  The liability carrier for one or some of the target third party defendants may have refused to indemnify and/or defend regardless of the allegations of negligence in the complaint,  having placed reliance upon an “assault and battery” exclusion. Such exclusions have been deemed legally enforceable and can serve to bare a defendant of insurance coverage where the injury producing event is an intentional criminal act, and whether that act was committed by the insured, insured’s employee or a third party.  In Zelda , Inc. v. Northland Insurance Company 56 Cal. App. 4^th 1252 (1997), a case involving the alleged intentional torts of the bartender employee and  his negligent hiring by the employer, the court held ”Bodily injuries that are subjectively planned or foreseen with some certainty by an insured, or that arise from incidents involving assault or battery, fall within (the) assault and battery exclusion.” ⁹  The significance is obvious. 
• Social and economic controversy.  Businesses and landowners experiencing crime in their locations are inevitably located in low income areas.  The “social policy” reflected in the opinions of some of the past cases very often becomes a “Catch-22”—or expression of unrealistic expectations and debatable speculative results.  Better types of insurance coverage are economically prohibitive or just not offered.  Residents who would suffer the increased cost of security and other crime prevention measures are least able to afford them.  Such businesses and landowners are usually the rare sources of shelter, goods and commerce in the area, employing locals who themselves are in desperate need of a “leg up” or entry position on the economic ladder.
• Emotional claimants who are victims, and generally have no place else to go but the courts for some relief.  The (economic) value in such cases, inevitably, is simply in getting to a jury.  Indeed, as the cases have pointed out, their very status of victim is often evidence of failed or absent security which cannot be credibly challenged. 

A New Standard

In both the Appellate and Supreme Court Saelzler opinions, it was noted the parties to the litigation acknowledged the proof established that defendants had a duty to provide security, and that had been breached.  It is not surprising Justice Chen couched his reversal of the 2^nd District opinion by noting fundamentally the absence of security measures was not a substantial factor in causing Saelzler’s injuries. In dissent, Justice Werdegar forcefully noted that such questions of “causation” are for the jury, conceding only that those situations most reasonably undisputable were questions of law, and that the majority was imposing a new standard of “actual” causation or “causation with certainty”.

Justice Chin was forced to navigate his way to the holding and reversal by dealing with standards set for such cases in a number of previous decisions.¹⁰  With Sharon P., infra, he noted the plaintiff was criminally assaulted by unknown assailants and drew upon dicta which first raised the theme of “abstract negligence” and “speculative causation”.  That the breach must have causal connection to the injury is fundamental.  In Constance B., infra, he noted that plaintiff was assaulted at night in the restroom of a state highway rest area by an assailant whom plaintiff had seen was watching her.  In Nola M., he noted the substantial factor analysis, and theme that the element of the tort theory was not satisfied simply by a presentation of self-serving security expert opinion testimony.

In placing the imprimatur of the court here---that sufficient causation cannot be satisfied by just empty expert opinions alone, it is my opinion the fate of many future cases has been sealed.  The majority opinion in Saelzler has essentially made a policy choice, that puts an end to implicit burden shifting that had forced the defendant to prove a negative---improved security would not have changed the tragic consequences.  From the plaintiff’s perspective, what else does the security expert have to offer but opinions probative on the issue of causation? More subtly, the plaintiff in such matters will not be able to shift the focus to all those things that were not done (in order to prevent injury), but will now be compelled to deal more completely with the missing actor or “empty chair”--the perpetrator of the evil and harm--the character most plaintiff attorneys tactically would just as soon forget in such cases.

There is an unresolved aspect.  Justice Chin, in discussing the causation and expert opinion issues, draws on the distinction that such perpetrators of crime are often unknown and unidentified.  This is significant in drawing inferences as to their legitimate presence at the property.  What of the usual business where the public is generally an authorized invitee?  In discussing the facts of the underlying case, it’s 300 units, and 28 building dimensions are emphasized.  Do the owners of one room markets, gas stations and small rentals have reason to expect exception from the impact of this ruling?

I think not, and the conclusion remains the same.  This opinion offers land and business owners, residential or commercial,  alike, a significant weapon in concluding before trial a great number of these cases.  Justice Chin cites Lopez v. McDonald’s, infra, at footnote 2, and Thai v. Stang (1989) 214 Cal. App. 3d 1264, both cases involving random acts of violence, in open areas.   By affirming that the standard of review includes a requirement that the plaintiff must show that the defendant’s act or omission was a “substantial factor” in bringing about the injury; that there is some substantial nexus between omission and injury; by criticizing the Second District Court of Appeal’s reference to a “common sense” standard of acceptance that security measures reduce crime; and, by denigrating reliance upon security expert opinion as sufficient to establish “substantial factor”---the California Supreme court has clearly drawn a “line in the sand” for cases involving harm emanating directly from criminal acts, and the ability of plaintiffs to collect damages from others for that harm.

Gerald Spala

June 12, 2001

Gerald Spala is a sole practitioner with offices in Moreno Valley, California.  He is a 1979 graduate of Southwestern University School of Law, and specializes in tort, bankruptcy, small business and technology law. Please feel free to e-mail your comments to him at mail@geraldspala.com.

1   Kentucky Fried Chicken of California Inc. v. Superior Court of Los Angeles County, (1997) 14 Cal.4th 814, 59 Cal.Rptr.2d 756

2  Lopez v. McDonald's Corp., (1987)193 Cal. App. 3d 495, 238 Cal. Rptr. 436

3  Nola M. v. University of Southern California, (1993) 16 Cal. App. 4th 421, 20 Cal. Rptr. 2d 97

4  Ann M. v. Pacific Plaza Shopping Center, (1993)6 Cal. 4th 666, 25 Cal. Rptr. 2d 137

5  Leslie G. v. Perry & Associates, (1996) 43 Cal.App.4th 472

6  Saelzler v. Advanced Group 400,  (1999)  77 Cal.App.4th 1001, 92 Cal.Rptr.2d 103 

7  Saelzler v. Advanced Group 400 (2001) , 25 Cal.4th 763  [No. S085736. May 31, 2001.]

8  Section 344 of the Restatement Second of Torts states, in part:

"A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons . . .  If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, . . ., he may be under a duty to take precautions against it. . .." (Rest.2d Torts, § 344, com. f, pp. 225-226.)

9  See, also, Stevenson, Laurel, Wisconsin Lawyer, Analyzing an Assault or Battery Insurance Exclusion, Vol. 70, No. 6, June 1997.

10  Sharon P. v. Arman, Ltd. (1999) 21 Cal. 4^th 1181; Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal. 4^th 666; Nola M. v. University of Southern California (1993) 16 Cal. App. 4^th 421; Constance B. v. State of California (1986) 176 Cal. App. 3d 200.

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