Low, Ball & Lynch’s

WEEKLY LAW RESUME

October 20, 2005 Issue   By: Mark Hazelwood

 Torts - Landowner Liability - Third Party Criminal Acts

 Rinehart v. Boys & Girls Club of Chula Vista

Court of Appeal, Fourth District

 (October 13, 2026)

Landowners are required to maintain land in their possession and control in a reasonably safe condition. This includes taking reasonable steps to secure common areas against foreseeable criminal acts of third parties.   In this case, Defendant Boys & Girls Club of Chula Vista (BGCCV) owned and operated an after school program.  Plaintiff Colmore Rinehart, age 10, was involved in the after school program.  The Club’s playground was located at the base of a hill just below a public park.  A fence separated the park from the Club.  

On an afternoon in April 2002, Rinehart was playing in the playground with some friends.  At some point, Rinehart noticed two or three rocks being thrown by older boys up the hill in the park.  These boys were not members of BGCCV.  While Rinehart had seen BGCCV members throw rocks on the playground before, he had never seen rocks being thrown from the park.  Rinehart and his friends began to move.  Before they could do so, Rinehart was struck by a rock and injured.  A BGCCV employee, who was in the vicinity, rendered assistance.  The employee did not see the incident occur.  The boy who threw the rock was never apprehended.

Rinehart, through his guardian ad litem, filed suit against BGCCV, alleging causes of action for premises liability and negligence.  In essence, Rinehart claimed that BGCCV had a duty to provide adequate supervision of the playground.  Rinehart contended that if there had been adequate supervision, the accident could have been prevented. 

BGCCV moved for summary judgment.  BGCCV argued that the incident was not foreseeable and that Rinehart could not prove a causal connection between the alleged breach of any duty and his injuries.  In opposition, Rinehart asserted that BGCCV’s policies and procedures set forth that it would provide a safe place for its members.  Rinehart claimed that the lack of supervision caused his injuries.  In support of his position, Rinehart submitted a declaration from a safety expert, who opined that there should have been increased supervision on the playground and a better barrier between the playground and park.   

The trial court granted BGCCV’s motion for summary judgment.  Rinehart appealed.  The Fourth District Court of Appeal affirmed the trial court’s decision.  In so doing, the Court of Appeal concluded that Rinehart failed to establish BGCCV owed a duty in this case, or had proved causation.  The Court held that pursuant to Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal 4^th 666, a duty to take affirmative action to control the wrongful acts of a third party will only be imposed where such conduct can reasonably be anticipated.  Unless particular criminal conduct is foreseeable, there is no duty to protect a plaintiff from that particular type of harm.  Here, Rinehart could not present any evidence of prior similar incidents, where there had been rock throwing from the park toward the playground below.   Further, the Court of Appeal held that prior throwing of rocks on the playground itself did not make the subject incident sufficiently  foreseeable to require BGCCV to take additional protective and supervisory measures. 

Even if greater supervision was in place, the Fourth District found that it was absolute speculation that the subject incident could have been prevented.  The Court held that because the identity of the assailant was unknown, Rinehart’s expert’s opinion was too tenuous to create a triable issue of fact. The Court felt that Rinehart failed to show a causal link between his injuries and any negligent failure to supervise by BGCCV.  The Court therefore held that the trial court properly granted summary judgment.

COMMENT

This case is consistent with  cases decided in the past several years, which have held that absent prior similar acts, landowners have no duty to prevent third party criminal activity.  Further, this case reiterates that expert opinions on causation must not be based on speculation and conjecture.            

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