 Beginning in the 1980's, and then decisively at the turn of the millennium, American courts altered their position and began to demand that colleges and universities provide reasonable care for student safety.-Peter F. Lake |
In Saelzler, a Federal Express employee attempted delivery at a twenty-eight building, 300-unit, apartment complex. She entered the premises and attempted delivery, but was unable to deliver the package and attempted to exit the premises. She was confronted by several males who attempted to rape her. She fought off the attack, but was seriously injured in the process. The Federal Express employee brought her case against the complex alleging negligent security. Among the things that she alleged were that the security gate was not operating properly, full daytime security patrols (which were not employed) would have prevented her attack, and there were no adequate warnings to her, or others, of the dangers on the premises.
The complex was a high crime, low income housing unit. There had been numerous crimes and reports of crimes on or near the premises and the police had been called many times to deal with issues on the premises. The premises were so dangerous that the manager reportedly only went to her vehicle with police escort. In addition, there were indications that a gang was headquartered in the building and conducting illegal operations that included violence against other tenants. Pizza parlor delivery people in the area typically refused to deliver into the complex and would only meet a tenant on the street to deliver the pizza. From the record it is apparent that the community was an extremely high-risk community.
The plaintiff was unable to identify her assailants. Particularly, she was unable to identify whether the assailants were residents of the complex or intruders from the community. To attempt to prove her case, plaintiff enlisted the services of a security expert who testified that a non-functional gate could have facilitated an attack and that roaming security patrols which had been employed in the evening hours may have effectively prevented this type of attack in the daytime.
The trial court dismissed the claim on summary judgment. The intermediate court of appeals reversed and reinstated the claim against the defendant. An appeal was taken to the Supreme Court of California and many business entities, including a number of colleges in California, entered the litigation to establish favorable principles for business defendants. The four justice majority began by acknowledging that the case presented a tough decision – balancing compensating victims against placing unreasonable financial burdens on business defendants. The majority determined that because the plaintiff was unable to establish the identity of her assailants she was therefore unable to identify and establish causation in her case.
In California, as elsewhere, a plaintiff must establish that a defendant owes a duty - a legal duty - to her, that the duty was breached and that it caused her damage. Because plaintiff was unable to convince the majority that she had established causation, her claim was dismissed as a matter of law on summary judgment, despite the fact that a legal duty may have been breached.
The case featured an interesting twist in negligent security litigation. For many years the campus college community argued successfully in American courts that no duty was owed to protect students on campus or to reasonably facilitate a safe learning environment. Beginning in the 1980's, and then decisively at the turn of the millennium, American courts altered their position and began to demand that colleges and universities provide reasonable care for student safety. This attitude of responsibility for safety of students was reflected in the monumental shift in national policy reflected in the reporting requirements of the Clery Act. Having lost on the issue of legal duty, college attorneys (and their business counterparts) have turned to the long-standing defense technique of arguing “no causation” to defend their claims. Because the issue of causation is so typically a fact issue to be decided by a fact finder, reported decisions on causation in the college context have been rare. Typically much of the law of causation is made at the trial level and in unreported decisions. In many jurisdictions, including California, a plaintiff must show by a preponderance of the evidence that the defendant’s negligence was a substantial factor in bringing about the ultimate injury.
The majority found itself in the unusual position of determining the causation issue partly because, according to their own opinion, of significant changes in summary judgment procedure in California which empower appellate courts to act more swiftly to dismiss claims. (Because of the unique procedural posturing of the Saelzler case, it will likely be the case that a number of courts will not be willing to follow the decision. California has become known for the aggressive use of summary judgment in these circumstances. In many jurisdictions the procedural rules do not provide as much latitude for appellate courts to act on plaintiff’s claims before trial). The majority pointed to the fact that the defendant in Saelzler did not contest that a duty of reasonable care was owed and that the duty was breached under the circumstances. Instead the court postulated that despite the negligence, the defendant’s negligence did not cause, legally, the plaintiff’s injuries.
At one level the result is extremely counter-intuitive because it would often appear that where there are negligent security failures, and an injury occurs, that therefore the negligent security failures facilitated and caused the injury (were a substantial factor). Nonetheless, courts have always been concerned that under some circumstances these assumptions may be too knee-jerk. For example, a security guard may fail to lock a padlock at the back end of a warehouse. An intruder may come, however, through a window in another area which was reasonably secure. Even though the security guard was negligent in failing to lock the padlock, that played no part in the particular break-in through the window. It would be the responsibility of any American trial judge to dismiss a case based on negligent security under these facts. The negligence simply did not cause the particular break-in. The difficulty lies however when the evidence is less clear. For example, in the Saelzler case it was not clear whether the assailants were intruders or tenants. Moreover, and perhaps most difficult of all, there is an element of speculation as to whether full roving security patrols in the daytime would have prevented this particular incident. The central issue then in this case is who should bear the burden to demonstrate causation when, as is very typical, the perpetrators are successful in covering their tracks as they exit a crime scene or crime prevention efforts have a statistical deterrent effect on crime generally but it is hard to say that these efforts would have prevented a particular incident.
The California Supreme Court, in its narrow 4 to 3 decision, tipped the burden of proof in these types of situations clearly to the plaintiff: What this means is that in a large number of cases where victims are attacked and there are demonstrable security failures, plaintiff will be unable to proceed to trial because she will be unable to prove to the satisfaction of the court that the negligence caused her injuries. This unfortunately will sweep up a large number of cases beyond those of the simple padlock scenario: In many situations if the truth were known it would be clearly determined that the negligence caused the injury, but because the burden is on the plaintiff to demonstrate causation, the victim will be left uncompensated in the face of negligence. Undoubtedly, the Saelzler court will become infamous for telling rape victims that if they fail to identify their assailants they may be unable to recover in a negligence action against an entity that is demonstrably negligent at the time the incident occurs.
In this particular instance the court criticized the plaintiff for failure to produce any evidence that any warning might have prevented the accident. In addition, the court criticized the plaintiff for being unable to produce direct or circumstantial evidence of the identity of the assailants. This was critical to the court because as it evaluated the negligent security gate issue, the court felt that a security gate would only deter intruders, not tenants, from committing a crime. Under that hypothesis, then, the plaintiff was unable to establish, more likely than not, that a failure of the security gate caused her injury because it was equally likely that the attackers were tenants.
In its most disturbing moment, the majority criticized the plaintiff’s expert testimony regarding enhanced daytime security patrols. The court stated on two occasions (quoting the same language twice from a well known decision involving an institution of higher education as a defendant) that security and increased policing do not prevent any particular crime and may not prevent crime in general. The majority appears to have taken judicial notice that generally enhanced security can never be (legally) causally determinative of the prevention of crime. In this regard the majority breaks radically from modern police science and also from what would appear to be the law in virtually every other jurisdiction in the United States. It is very common for plaintiffs to access a jury trial with evidence from an expert that specific enhanced security measures such as the presence of guards or gates may have prevented the type of injury in question. Nonetheless, the Supreme Court of California narrowly struck down this type of approach and now requires that each plaintiff in California prove that a specific security failure caused or facilitated an attack.
While it appears that the majority felt compelled to attempt to protect low income housing from the economic burdens associated with increased security, its discussion of security could have extremely damaging consequences in the collegiate environment. For one thing the expectations of a typical college student are not of the safety levels that are associated with the type of housing unit that was present in the case. The majority argued that increased security would simply be passed along in higher rents to already burdened poor tenants. My sense of it is that a typical college student already paying large sums of money at universities would be more than happy to be paying the marginal cost for security greater than that in a low income, high crime neighborhood. Moreover, the legal implications of Saelzler will put plaintiffs in the position of attempting to root out each and every single failure of a security system, but put less emphasis on the design of an overall and sensibly safe system. This could have some very dangerous and deleterious consequences. In California, campus security will now have to put a premium on insuring that each officer complies with whatever security practice 100% at all times. Any single failure could be the cause of a crime. It is exactly that kind of a failure which could lead to a lawsuit. However the incentive to design an overall safe system, at least as a matter of law, will diminish.
Consider the following scenario. It might be that a campus in California would attempt to implement a security system of some considerable scope. That system might however feature a higher level of compliance error, yet on the whole be a safer system for students at that campus. For example certain television monitoring systems and locking systems are prone to more and more complex failures but are also more generally effective in deterring crime. Unfortunately, the Saelzler case may suggest to some counsel - and therefore to campus security - that a simple, administrable system, even if not the best overall system, is better legally because it is less likely to engage legal liability. An even worse implication may be that some campuses will feel that by enhancing security they simply open themselves up to greater lawsuits and therefore will withdraw from some security activities entirely. A close reading of Saelzler indicates that this is not at all what the California Supreme Court expects, but at least in the interim, until it clarifies in a particular case that raises that issue, it is conceivable that this is the message that will be received.
The California Supreme Court did make one other thing very clear. A specific threat or a specific assailant raises immediate security concerns that have to be addressed. Thus the court made clear that when a particular known dangerous assailant intrudes on campus, and campus security does not act reasonably to prevent that assailant from attacking a victim, causation in fact will be present. This of course has interesting ramifications. On the one hand it will send a clear message to campus security in California that it must act on threats of violence by specific assailants. On the other hand however, the opinion may lead campus security in a very inefficient direction, responding to each and every particular threat or assailant even when reasonable police tactics do not suggest that that individual is a risk. The result may be an over- response to the specific threat situation and strain limited campus security resources.
Undoubtedly the Saelzler opinion will send waves of interest throughout state courts in the United States and we will all be anxiously awaiting word from other top courts in the country as to whether they are willing to follow California’s approach. There is a sense from the opinion that the 4 to 3 majority is a very tenuous one in the case. Often, the majority opinion reads as if several justices do not believe that there should be a duty to use reasonable care to prevent attack on invitees --a radical idea under current standards---but that there were not four votes on this basis. There are moments in the opinion where the court seems to be questioning the efficacy of private security and the social value of asking businesses to provide security outside the context of readily identifiable danger. It must be always remembered that this case comes from low income, high crime housing and a direct analogy to a college case may be difficult (despite the fact that the California Supreme Court used college cases to support its decision). Moreover the vigorous dissent could easily capture the attention of other courts which may be more likely to follow the rationales of the minority justices. What Saelzler may have set off is a grand debate about what levels of security cause or affect criminality. It remains to be seen if American courts will follow the more specific causal approach of California or move in the direction of environmentally sound tactics that modern police strategies suggest.
Peter F. Lake is a Professor of Law at Stetson University College of Law, where he has been teaching since 1990. After graduation from law school, Professor Lake was a law clerk for the Honorable Bruce Selya, now judge of the United States Court of Appeals for the First Circuit and then for the Honorable Neil Lynch, Associate Justice of the Massachusetts Supreme Judicial Court. Before joining Stetson, Professor Lake was a litigation associate with the law firm of Cahill, Gordon & Reindel in New York City, where he was involved in a variety of commercial and insurance litigations and also First Amendment matters. Professor Lake is author of many articles including pieces appearing in the American Bar Association Journal, the Journal of Legal Education, and the Albany Law Review where "Tarasoff Revisited" appears. Professor Lake is co-author of "The Rights And Responsibilities Of The Modern University: Who Assumes The Risks of College Life?" and numerous articles on higher education law. Professor Lake received his A.B. in philosophy from Harvard (1981) magna cum laude, and has a J.D. cum laude also from Harvard (1984). Professor Lake teaches torts, insurance and jurisprudence at Stetson.