Policy Oscillation in California\u27s Law of Premises Liability

The expansion of tort liability beginning in the middle of the 20th 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 as to how risks and compensation should be distributed so as to serve societal interests such as fairness, efficiency, and personal autonomy. This article studies 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 from a limited conception of duty 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. The early rule reflected the interests of property and commerce 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 latest event foreseeable. 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, 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 reflecting policy goals in favor of the prerogatives of property ownership and a certain vision of economic costs and benefits. 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 reflecting ideological and political pressures brought to bear on the courts