Policy Oscillation in California’s Law of Premises Liability
48 Pages Posted: 6 Nov 2010
Date Written: 2008
The expansion of tort liability, which began in the middle of the twentieth century, and the reaction against that expansion as the century came to a close, constitutes a clear demonstration of the nostrum that tort law is “public law in disguise.” Adjudication of private disputes became a battleground of public policy preferences on how risks and compensation should be distributed so as to better serve societal interests such as fairness, efficiency, and personal autonomy. This article examines in detail a critical battleground in a key state – the revolution and counter-revolution in premises liability in California – as a paradigm case. Close attention to the policy oscillation with regard to “duty,” from a limited concept to a more expansive definition and then back again, reveals how common law doctrinal change reflects the public policy preferences of repeat players and institutional actors, and the political ideology of judges and those politicians who appoint them. By mandating that a landowner had no duty to address the threat of crime by third parties unless there were prior similar incidents which made the event foreseeable, the early rule reflected the interests of property and commerce. California courts, pioneers in the revolutionary expansion of tort liability, led the way in formulating a new rule that found a duty when the threat of crime was foreseeable under the “totality of the circumstances.” Shortly after, however, California courts underwent a rapid change in personnel which produced a profound ideological shift in favor of “re-visiting” the expansion of tort liability. The new jurists, aided by ideological and commercial interests as amici, reinstituted a modified version of the old prior similar incidents rule, expressly favoring the prerogatives of property ownership and a certain vision of economic costs and benefits. As can be seen, the changing law of premises liability in California is a clear example of how private law doctrine can be made and remade through policy choices that reflect ideological and political pressures brought to bear on the courts.
Keywords: Torts, Negligence, Duty, Breach, Proximate Cause, Foreseeability, Premises Liability, Judge/Jury
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