NOLA M. v. University of Southern California

SPENCER, P. J.

I dissent. I would affirm the judgment insofar as it awards plaintiff compensatory damages, for I perceive substantial evidence from which the jury could have found defendant’s negligence was the legal cause of plaintiffs injury.

Plaintiff based her case on two related theories, one of which is that defendant negligently maintained its property in a dangerous condition by permitting dense, high foliage to grow in the area of the credit union and lighting the surrounding area inadequately. There is a dangerous condition of property when a person of ordinary prudence should have foreseen that the condition would enhance appreciably the risk of harm. (Constance B. v. State of California (1986) 178 Cal.App.3d 200, 209 [223 Cal.Rptr. 645].)

In my view, that the evidence in the instant matter is sufficient to establish a dangerous condition of property in the immediate area of the credit union and human resources center is not open to serious question. There was dense, high, concealing foliage extending along nearly the entire front of the human resources center, and there was similar foliage in front of the credit union. Such foliage in itself deepens shadows and absorbs lighting, and there was clear evidence that the area between the credit union and the human resources center was very poorly lighted. It reasonably may be inferred that the lack of adequate lighting in that area affected the overall illumination *440shed on the front of these buildings and enhanced the risk posed by the foliage.

It is settled that inadequate lighting and dense foliage can constitute dangerous conditions of property. “ ‘That a mugger thrives in dark public places is a matter of common knowledge.’ ” (Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 812 [205 Cal.Rptr. 842, 685 P.2d 1193].) Indeed, defendant’s own security force recognized the danger posed by the poorly illuminated foliage along the front of the human resources center and credit union. A person of ordinary prudence clearly would have foreseen that these conditions increased the risk of harm to passersby on a campus which had experienced a number of assaultive crimes approximately 100 yards from this area and a rape approximately 1 block away and on which the credit union was considered to have one of the highest potentials for criminal activity.

Defendant argues, however, that there is no evidence these conditions caused plaintiff’s injuries, i.e., that there were reasonable steps defendant could have taken to prevent the injury or that defendant’s inaction caused it, citing Noble v. Los Angeles Dodgers, Inc. (1985) 168 Cal.App.3d 912, 915 [214 Cal.Rptr. 395], and the majority opinion adopts this view. The question is not and cannot be, as Noble phrases it, whether defendant could have prevented plaintiff’s injury. When a contributing cause of the plaintiffs injury is a third party’s criminal conduct, it never can be said that any action would have prevented the crime.

The majority attempts to draw a distinction between assaultive crimes of the type committed here and crimes directed against property, implying the latter can be prevented by “mechanical devices such as locks, safes, fences, etc. which are designed to protect property by ‘hardening the target,’ ” while it is impossible to say what would deter “conduct such as rape, robbery or physical assaults.” (Noble v. Los Angeles Dodgers, Inc., supra, 168 Cal.App.3d at p. 918.) However, a determined criminal of whatever sort will not be deterred by such mechanical devices. Thus, it cannot be said that repairing a lock on a door or providing an alarm system would have prevented even a simple theft or burglary. What can be said is that the use of such security measures will reduce substantially the likelihood that a crime will occur, and it will do so even when the contemplated crime is assaultive in nature.

Accordingly, the pertinent test of causation is whether a defendant’s “nonfeasance in some way contributed to [plaintiffs] resulting injuries,” or constituted a substantial factor in causing the injury. (Lopez v. McDonald’s *441Corp. (1987) 193 Cal.App.3d 495, 515 [238 Cal.Rptr. 436].) It is enough to have provided an enhanced opportunity for the harm to occur, to have created an opportunity to commit crime by providing a place of concealment. (Constance B. v. State of California, supra, 178 Cal.App.3d at pp. 211-212.) In Constance B., the court found there was no causation as a matter of law, in that the only reasonable inference to be drawn from the facts was that plaintiff’s assailant was standing in the light when plaintiff saw him staring at her and thus could not have used the dark, shadowy areas as a place of concealment. (Id. at p. 211.)

The facts in this case are quite different. Plaintiff had a clear view of the area around and in front of her as she approached the credit union—until she reached the sidewalk in front of the human resources center. She did not see anyone walking or loitering in the area. As she walked along the sidewalk, beside the dense, concealing foliage, a man suddenly grabbed her from behind. She was so unaware of his presence until he grabbed her that she described him as coming “from nowhere.” It reasonably may be inferred from these facts that plaintiff’s assailant had concealed himself nearby, waited until she passed him, and then attacked her. It further may be inferred reasonably that either the dense foliage or a nearby dark, shadowy area provided him with his place of concealment.1

Moreover, the combination of thick, rather high ground cover and dense, high bushes provided a concealed, secluded spot in which plaintiff’s assailant could carry out his criminal designs. While rapes may occur in open, easily observed areas, they ordinarily occur in secluded, concealing places. That is, the dense and concealing shrubbery and poor lighting facilitated the rape, providing an enhanced opportunity for it to occur. (Constance B. v. State of California, supra, 178 Cal.App.3d at pp. 211-212.) Additionally, but for the convenience of having such concealing foliage so close at hand, the assailant would have had far more difficulty in carrying out a prolonged sexual assault with little fear of discovery. Consequently, if nothing else, defendant’s failure to trim or remove the foliage contributed to the scope of plaintiff’s injuries. (Lopez v. McDonald’s Corp., supra, 193 Cal.App.3d at p. 515.)

In contrast to Lopez v. McDonald’s Corp., supra, 193 Cal.App.3d 495, it cannot be said in this case that plaintiff would have suffered the same harm *442even if defendant had trimmed substantially or removed the foliage from in front of the human resources building and credit union and increased the lighting in the area to remove deeply shadowed places of concealment. Plaintiff was not attacked by “a maniacal, suicidal assailant unconcerned with his own safety, bent on committing mass murder,” but was a victim of “ordinary criminal conduct [which may be deterred] because of the potential of identification and capture.” (Id. at p. 517.)

Additionally, the question is not, as the majority puts it, whether a university campus arguably could be kept clear of trees and bushes. The evidence established that the area occupied by the human resources center and credit union was a site particularly vulnerable to criminal activity and it thus was of great importance that it be kept clear of concealing foliage2 and be brightly lighted. The evidence further showed that dense foliage absorbs, or swallows, light and thus can render inadequate lighting which otherwise would be adequate. Moreover, defendant’s own security officers were aware of the risk posed by the foliage in this area. No one suggested that the entire campus should be denuded of all trees and foliage, only that the foliage in this area should have been severely trimmed or eliminated.

The question of causation is one of fact; it is only “ ‘where reasonable men will not dispute the absence of causality’ ” that it becomes a question of law. (Constance B. v. State of California, supra, 178 Cal.App.3d at p. 207.) This is not such a case. Reasonable minds can differ as to the inferences to be drawn from the facts, and thus as to whether the physical conditions of the area around the credit union were a cause of plaintiff’s injury. (Id. at p. 208.)

If in reliance on the rationale of Noble v. Los Angeles Dodgers, Inc., supra, 168 Cal.App.3d at page 918, the facts in this case are inadequate to prove causation, then causation will be impossible to prove in any case premised on a negligent failure to take reasonable precautions against the criminal activity of a third party and involving assaultive criminal conduct. If the reasoning used in Noble is applied, the courts in essence have created a purely theoretical cause of action for the victims of assaultive crime, one on which a plaintiff never can prevail. The cases acknowledging the duty to take reasonable precautions against third party criminal acts and liability for the breach of that duty make no distinction between property crimes and assaultive crimes, but in practical effect, the majority opinion works a subrosa elimination of the cause of action as to all assaultive crimes.

In summary, I would hold there is substantial evidence from which the jury could have found defendant’s negligent failure to remedy a dangerous *443condition of property was the legal cause of plaintiff’s injuries. Accordingly, I would affirm the award of compensatory damages.

A petition for a rehearing was denied July 2, 1993, and respondent’s petition for review by the Supreme Court was denied September 23, 1993. Mosk, J., Kennard, J., and Arabian, J., were of the opinion that the petition should be granted.

The majority states it cannot be ascertained from the evidence whether the assailant came from the foliage or a shadowy area or from behind a nearby fence or around a nearby building comer. As plaintiff crossed 36th Street at McClintock, she could have seen anyone lurking next to the McClintock side of the human resources center—if that area was unshadowed and well lighted. The only other nearby fence and building corner which could have provided concealment for plaintiffs assailant both lie in an area where the lighting admittedly is inadequate, along the east side of the credit union. Consequently, these areas are shadowy places of concealment.

Not all foliage is concealing when adequately trimmed, and many trees are not concealing.