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Hallman v. California State University11/22/2002
cally alleged to have occurred in past three years]; with Gregorian, supra, 174 Cal.App.3d at pp. 949-950 [no duty where there were no indications or allegations of specific prior criminal activity].)
Appellants' third amended complaint does not allege the altercation/battery was foreseeable nor does it allege any facts from which foreseeability may be inferred. There is nothing within the complaint that alleges or alludes to prior acts of criminal activity in the University parking facility. It is not sufficient generally to allege or conclude that a property owner is on notice because crime can occur anywhere at any time. Rather, there must be specifically articulated facts that would be sufficient to cause a reasonable person to take action to mitigate risk. (Gregorian, supra, 174 Cal.App.3d at pp. 949-950.) Appellants fail to allege any facts that would lead to the conclusion University knew or should have known of a danger to the public from possible criminal activity. We therefore conclude Appellants have failed to establish that University had any special duty of care based on common tort law principles to protect Appellants from foreseeable risks of criminal acts by third parties.
Even if we were to conclude there existed a special duty of care on the part of University, statutory modifications of that duty would limit University's liability.
California's Tort Claims Act provides that public entity liability is statutory in nature. (Gov. Code, § 810 et seq. ; Peterson, supra, 36 Cal.3d at p. 809.) Section 815 modifies the duty of governmental entities by providing the entities are not liable for injuries caused by acts or omissions of the entity or its employees except as otherwise provide by statute. Thus, a tort action may not be maintained against the state or a public entity of the state unless there is a statute that provides for that liability. (Chester v. State (1994) 21 Cal.App.4th 1002, 1004-1005.)
If statutory authority does establish a duty of care, then the entity is liable for the acts or omissions of its employees acting within the scope of their employment to the same extent the employee would be liable. (§ 815.2; Thomas v. City of Richmond (1995) 9 Cal.4th 1154, 1157.) In order sufficiently to state a claim of action against University, "every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty. [Citation.]" (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.)
Appellants contend that University, having made the discretionary decision to provide security personnel, incurred a special duty to Appellants to investigate once the security personnel responded to Appellants' request for help. The crux of Appellants' claim against University is their contention the University's security personnel have a mandatory duty to potential victims or future claimants to investigate and issue reports where University personnel intervene in unlawful incidents. We presume Appellants' reference to "mandatory duty" is intended to invoke the doctrine of negligence per se as applied to public entities by the provisions of section 815.6, which provides in its entirety:
"Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury , the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty."
By its own terms, liability under this section is not invoked unless a mandatory duty is imposed by some
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