Because a number of our clients are owners of commercial rental properties, we felt it advisable to bring you up-to-date on some recent developments in California case law concerning the troublesome issue of premises liability. These cases are particularly significant because they implicate not only public safety issues but also the important public policy question of who should bare the responsibility for, and costs of, the increasing levels of violent crime being experienced in virtually every community in the state. The message to commercial landlords is Abeware,@ the old rules may well be on the way out; the new rules may expose you to greater liability.

On the surface, the elements of premises liability are simple. In fact, the case that a plaintiff must prove in a premises liability case is essentially the same as in any other type of negligence action. First, the plaintiff must show that the defendant owed him a duty, and that the defendant breached that duty by not exercising the appropriate standard of care. However, even if the plaintiff can establish that the defendant owed him a duty and breached it, he must still show that it was the defendant=s breach of duty that caused plaintiff=s injuries. The defenses to a premises liability claim mirror the elements of the plaintiff=s case. A defendant must show either that he had no duty to the plaintiff (generally due to lack of foreseeability) or, if a duty to the plaintiff is shown, that he exercised the requisite standard of care in carrying out that duty and/or that breach of a duty owed to the plaintiff was not the cause of the plaintiff=s injuries.

In practice, the application of the principles of general negligence to premises liability cases has been anything but simple. In fact, it has been a nightmare, with different courts applying very different analyses to apparently the same problem. The good news has always been the California Supreme Court=s reluctance to expand the scope of landowner liability. The bad news is that change may be in the wind.

The issues of duty and causation have always been particularly troublesome to the courts. Just recently, in December of 1999, the California Supreme Court appeared put to rest the thorny issue of the scope of the duty owed by a property owner to persons coming on to his property. In the case of Sharon P. v. Armand, Ltd., the Court held that the operator of a commercial garage did not owe a duty to persons coming onto his property to take measures to prevent harm to those persons from other third persons coming onto his property. The basis for the court=s decision, as it always is in cases of determining the existence of duty, was the lack of foreseeability of harm. Because no similar incidents had ever occurred on the garage owner=s premises, the court determined that it simply was not foreseeable for him to expect such criminal conduct to occur on the premises and that therefore he owed no duty to the rape victim to prevent it. This ruling was consistent with the Court=s 1993 holding in a similar case.

Schel In fact, until the appearance of recent decisions clouding the issues, it was generally accepted that the standards to be applied in determining the existence of both of the critical elements of duty and causation in premises liability cases had been defined by the early 1993 cases of Nora M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666 and Nola M. v. University of Southern California (1993) 16 Cal.App. 4th 421

In the Nora M. case, the Supreme Court found that the property owner owed no duty to the Plaintiff, because the lack of similar occurrences on the owner=s property undermined the requirement of foreseeability which is the basis for the existence of duty. The court said that in cases where the burden of preventing future harm is great, a high degree of foreseeability may be required. However, in cases where there are strong policy reasons for preventing the harm, or the harm can be prevented by simple means, a lesser degree of foreseeability may be required in order to establish a duty. As described by one California appellate panel, duty in such circumstances is determined by balancing Aforeseeability@ of the criminal acts against the Aburdensome, vagueness and efficacy@of the proposed security measures.

The case of Nola M involved the other critical element of premises liability: causation. The plaintiff was raped on the U.S.C. campus and alleged that U.S.C.=s failure to provide adequate security was the cause of her injuries. The court ruled against her because she failed to prove the that U.S.C.=s lack of security caused her injuries. The court=s rationale focuses more on the reasonableness of enhanced security measures rather than the rigid proof standards normally required for a plaintiff to prove causation. The opinion goes on to address important policy considerations such as (1) where does the provision for additional security become symptomatic of a police state which restricts the freedom of its citizens? and (2) Who is going to pay for all this security and will be increased costs are passed on to those who can least afford to pay it and who may otherwise lose the benefits of other state priorities such as education or affordable housing?

Critics of the Nola M. decision have consistently pointed out that the court seems to suggest that the police have exclusive responsibility for crime prevention and that private property owners, including those running huge apartment complexes, should have no responsibility to protect against crimes within their often vast private premises. They also argue that Nola M. requires that as the danger increases the level of required security measures decreases. This follows because, according to those critics, as the frequency of criminal acts increases it becomes more difficult to prove causation. It is difficult to establish a greater set of security precautions would have prevented any given criminal attack so private property owners are excused from liability even when they supplied little or none. Thus, they say that the duty to provide security precautions diminishes just when those precautions are most needed. The critics, including the majority in the Saelzler case, argue that common sense tells judges, as well as jurors, that security measures - - whether they are gates or lights or cards or more sophisticated approaches - - indeed, do decrease the probability of crime at locations enjoying those protections. Thus, they argue that in a real sense, the absence of those measures is a contributing cause of most crimes that occur on those premises.

Now, a Second District Court of Appeal Case, Saelzler v. Advanced Group 77 Cal.App.4th 1001 (2000) has picked up the mantle of the Nola M. critics and called into question the long standing causation guidelines established by that case. The majority in Saelzler acknowledged that their opinion, handed down last month as an unpublished holding and ordered published on January 26, 2000, contradicts earlier California decisions insofar as they differ with regard to the breadth of the rule that should be applied. Saelzler argues that the legal principle established by these cases actually discourages the provisions of security measures by private landowners in the very situations where the need for the same is the greatest.

Just a few weeks ago, the California Supreme Court granted review in the Saelzler case, meaning that it will now take up the newly clouded issue of causation as it relates to premises liability. The Saelzler case will require the California Supreme Court to take another hard look at the issue of causation.

What does this all mean for owners of commercial properties? It means that the rules may be subtly changing in response to changes in our society. While the California courts have traditionally been reluctant to hold a landlord responsible for the criminal acts of third parties trespassing on his property, they are now forced to address and balance important policy considerations presented by rising levels of crime and homelessness. As a practical matter, it means that you the individual property owner should be more diligent in your own management or in overseeing the activities of professional managers. You should not rely on the conservative standards applied by the California courts in the early 1990s. You don=t want to be the case that sets the new standards for he millennium! Pay particular attention to what goes on at your property. If a violent episode occurs, fully investigate it and do Asomething@! The question of how far you have to go is being answered in the courts every day. We will keep you apprized of further developments in this important area.