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The Civil Side of Crime: The High Court's Changing Approach to Liability for Another's Criminal Acts
The problem of violence is one that increasingly confronts not only our communities, but our courts. In recent months, the California Supreme Court has wrestled with the civil responsibility of defendants other than the criminal in an interesting variety of cases, addressing the liability of gun manufacturers, insurers, and public and private landowners alike. With one exception, a trend seems to be emerging—a gradual but consistent cutback on the liability of those “deep pockets” who did not commit the crime.
Public entity immunity. In May 2002, the supreme court issued its opinion in Zelig v County of Los Angeles (2002) 27 C4th 1112, 119 CR2d 709, reported at p 207, a case that took on new significance after the September 11th attacks. In a unanimous opinion, the court concluded that the County of Los Angeles was not liable for failing to provide security measures at its downtown Hill Street courthouse. At issue was the county's liability for the fatal shooting of a family-law litigant by her estranged husband on courthouse premises. Her children sued the county, contending that it owed a duty to protect litigants, who paid for court services, from criminal acts, and that the county should have installed metal detectors and barriers and searched for weapons.M
Zelig rejected all of plaintiffs’ claims. After concluding no special relationship existed between decedent and the county, the court found that the absence of barriers and metal detectors did not create a dangerous condition of public property because no physical defect of the property was involved. And because installing metal detectors would require police personnel to operate them, Zelig concluded that Govt C §845 provides a statutory immunity. The statute gives public entities discretion over allocation of funds for, and deployment of, police protection services, essentially an executive decision with which courts should not interfere.
Landowner liability and causation. In mid-2001, the supreme court confronted the problem of a landowner’s civil liability for violent assaults, this time on private property. The court reached a result similar to Zelig, but used a different approach. Saelzler v Advanced Group, Inc. (2001) 25 C4th 763, 107 CR2d 617, held that plaintiff, a courier delivering a package to an apartment complex known for criminal activity and gang violence, had to prove that greater security measures would have prevented the assault. Given the rampant pattern of violent acts on the premises, foreseeability of harm, i.e., duty, was not an issue. The question before the court was one of causation. Because the assailants’ identity was never discovered (they could have been residents or strangers), plaintiff could not show how they entered the premises, and thus was unable to prove that increased security measures would have prevented the clearly foreseeable harm. The court noted that expert opinion on whether increased security would have prevented the assault must be nonspeculative in nature—more than a showing that more security might have forestalled the attack.
Aiming for gun manufacturers misses the mark. In late summer of 2001, the court also rebuffed attempts to hold gun manufacturers liable for common-law negligence arising out of the use of their products. Merrill v Navegar, Inc. (2001) 26 C4th 465, 110 CR2d 370, arose out of the infamous 1993 shooting spree at 101 California Street. Plaintiffs, relatives of the victims, sued the manufacturer of the semi-automatic weapon used, contending it served no legitimate purpose, but rather was designed and marketed as particularly well-suited to inflict maximum injury in large-scale assaults on human targets. The court reasoned that since CC §1714.4 immunizes gun manufacturers from products liability lawsuits, it must likewise protect them from claims of common-law negligence. Otherwise, permitting lawsuits on a negligence theory would neutralize the Civil Code’s protections.
Insurer's “illegal acts” exclusion applies to “accidental” shooting death. Unlike the decisions discussed above, Safeco Ins. Co. v Robert S. (2001) 26 C4th 758, 110 CR2d 844, was an insurance coverage case. Its facts, tragically, are all too familiar. The teenage insured found his mother’s Beretta and, believing he had unloaded the weapon, pulled the trigger; the gun fired, killing his companion. The insured later pleaded guilty to involuntary manslaughter. The issue was whether his parents’ homeowners’ policy provided coverage despite an exclusion for “illegal acts.”
The supreme court, in a 4-2 opinion, found the exclusion ambiguous, since the term “illegal acts” could either be read to mean any act prohibited by law, or only those acts that are criminal. Distinguishing the clause from one that excludes only “criminal acts,” the court observed that an “illegal” act could include one that is merely negligent; because negligence was expressly covered by the policy, the exclusion was overly broad. In a surprising move, however, rather than construing the overbroad term as barring only those “illegal acts” that are also criminal, the court declined to enforce it at all. As a result, the carrier owed coverage for the claim.
Emerging trend? Although the court exonerated the noncriminal “deep pocket” in three out of these four recent cases, Navegar and Zelig largely relied on the construction of immunity statutes and suggest a strict statutory construction approach. Saelzler, however, far more grounded in public policy considerations, appears cut from a different cloth.
The court has long held that landowners must take reasonable steps to “secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures.” Ann M. v Pacific Plaza Shopping Ctr. (1993) 6 C4th 666, 674, 25 CR2d 137. But the George court has begun expressing its concern over the costs of imposing added security on landowners, noting that landlords should not be forced to become insurers of public safety. See Sharon P. v Arman, Ltd. (1999) 21 C4th 1181, 1190, 91 CR2d 35. Saelzler demonstrates that even a high degree of foreseeability is not enough to impose liability. Plaintiffs cannot merely show that security measures would have made the crime less likely to occur; they must establish an actual causal link between the absence of security and the injury, and prove it by nonspeculative evidence. Thus, although the court’s foreseeability pronouncements opened the door to landowner liability for a third party’s criminal conduct, Saelzler’s new causation requirement seemingly has started to close it again.
The only “wild card” in the deck is Robert S., in which the court seems to have relaxed the traditional rules by which it interprets insurance contracts. If a policy term is ambiguous, typically it is construed according to the insured’s objectively reasonable expectation of coverage. AIU Ins. Co. v Superior Court (1990) 51 C3d 807, 274 CR2d 820; Bank of the West v Superior Court (1992) 2 C4th 1254, 10 CR2d 538. Here, however, having found the “illegal acts” exclusion overbroad and ambiguous, Robert S. declined to enforce it at all, even though, as Justice Baxter noted in dissent, no reasonable insured would expect to be covered for criminal homicide. Safeco Ins. Co. v Robert S. (2001) 26 C4th 758, 767, 110 CR2d 844. Having found the exclusion ambiguous and over-broad, one would have expected the court to construe it narrowly, as covering only criminal acts. Even that narrower construction would have yielded a finding of no coverage.
When Robert S. came down last fall, many insurance commentators wondered if it presaged a major shift in the court's approach to interpreting insurance policies. In hindsight, those fears probably were premature; the holding seems driven by the court's obvious belief that, while technically the shooting was criminal, it was really a tragic “accident.” And only months before it issued Robert S., the court twice invoked its more traditional policy-interpretation test, i.e., that the policy be construed according to the insured's objectively reasonable expectations, and in each case found no coverage for the claim. Certain Underwriters at Lloyd’s of London v Superior Court (Powerine Oil Co.) (2001) 24 C4th 945, 103 CR2d 672; Kazi v State Farm Fire & Cas. Co. (2001) 24 C4th 871, 103 CR2d 1.
So what conclusions can we draw from this anecdotal evidence? The George court seems to be slowly applying the brakes to the noncriminal defendant’s civil liability for crimes committed by third parties on its premises or using its products. The single exception appears to be the court’s willingness to relax its own rules when it comes to finding insurance coverage for such acts.
This material is reproduced from CEB Civil Litigation Reporter , copyright 2003 by the Regents of the University of California. Reproduced with permission of Continuing Education of the Bar - California. (For information about CEB publications, telephone toll free 1-800-CEB-3444 or visit our Web site, CEB.com).
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