Isaacs v. Huntington Memorial Hospital

Opinion

This court must decide whether a plaintiff, in an action against a landowner for criminal acts of third persons on the landowner’s property, may establish foreseeability other than by evidence of prior similar incidents on those premises.

I.

Plaintiff, Mervyn Isaacs, is an anesthesiologist affiliated with defendant, Huntington Memorial Hospital, a private hospital located in Pasadena. On March 26, 1978, at approximately 8:30 p.m., Dr. Isaacs arrived at the hospital with his wife. He parked their car in the hospital’s research parking lot which was located across the street from the emergency room and the physicians’ entrance to the hospital. The lot was open “to anyone who wished to park there. ” While his wife was visiting a friend at the hospital, Dr. Isaacs saw some of his patients who were to undergo surgery.

About 10 p.m., Dr. Isaacs, his wife and a family friend left the building and went to the Isaacs’ car. While Dr. Isaacs was moving some belongings from the back seat to the trunk, Ms. Isaacs and the friend got into the car. As he was closing the lid to the trunk, Dr. Isaacs was grabbed from behind by a man who held a gun to the doctor’s chest. Dr. Isaacs put up his hands and began to turn around very slowly. At that point, the assailant shot the doctor in the chest. The gunman then fled the scene and was never apprehended.

As a result of the shooting, Dr. Isaacs sustained severe injuries, including the loss of a kidney. He and his wife brought an action against the hospital and its insurance carrier, Truck Insurance Exchange (hereafter Exchange). The Isaacs alleged that the hospital failed to provide adequate security measures to protect its invitees and licensees against the criminal acts of third persons on its premises. Exchange was negligent, they contended, for participating in the hospital’s decision to disarm its security guards. Plaintiffs *121 alleged that this decision directly contributed to the inadequacy of the security measures.

Both the hospital and Exchange filed motions for summary judgment. The trial court granted Exchange’s motion and denied the hospital’s. The case proceeded to trial, and plaintiffs introduced the following evidence.

Harold Bastrup, a security consultant, testified that the hospital was located in a “high crime area.” He based this conclusion on incident reports from the hospital and the Pasadena Police Department. Numerous assaults or threatened assaults had occurred on the hospital premises during the three years preceding Dr. Isaacs’ shooting. 1

Among those incidents were several threatened assaults with deadly weapons in the emergency room area across from the research parking lot. In September of 1977, a man pulled out a knife and threatened to cut another person’s head off. A security guard, displaying a baton, attempted to talk the assailant into dropping the knife. The guard’s efforts were futile until he pulled out his gun. In January of 1977, a man with a knife threatened to assault a person in the hospital emergency room. In March of that same year, a person brandished a rifle in the emergency room. The security guards were able to disarm him.

Plaintiffs also presented evidence of thefts in the vicinity. In August of 1976, a purse snatching occurred near the hospital. In September of 1977, a person grabbed money from a counter in the hospital and ran away.

In addition, a security guard for the hospital testified that incidents involving harassment of persons in the emergency area were “very common. ” In September of 1977, one such incident, which occurred in front of the emergency room, involved 10 to 12 male adults who were “disturbing the peace [and] drinking. ”

Testimony was also offered concerning the danger associated with emergency room areas. David Wright, the former director of security at a different hospital, testified that emergency rooms, surrounding areas, and nearby parking lots are the areas with the “highest potential for violent acts.” He noted that such areas are “subject to a lot of criminal elements.”

Hospital personnel conceded that the emergency room area was frequented by persons under the influence of drugs and alcohol. Dr. Charles Berg *122 quist, who was at the hospital on the night of the shooting, testified that upon entering the hospital that night, “many people [were] milling around . . . drinking out of bottles and brown paper packages.” Dr. Bergquist described the scene as “scary” and “physically threatening. ” He also testified that this was not unusual activity.

Plaintiffs also presented evidence concerning security. At the time of the shooting, the hospital had three security guards on duty. One guard was stationed inside the emergency room entrance at the visitor control desk. Another guard was stationed in the employee parking lot, which was located a considerable distance from both the emergency area and the research parking lot. 2 The third guard was on roving patrol on the second floor in one of the buildings.

The guards were unarmed. 3 They wore uniforms and carried flashlights but no nightsticks or mace. Guard dogs were not used.

The hospital also had numerous television cameras at various locations around the hospital to monitor activity in those areas. With the exception of one camera which covered the employee parking lot, all of the cameras were used to view activity inside the hospital.

An escort service was available to protect hospital staff. However, there was conflicting evidence as to whether this service had ever been used by or was known to the doctors.

Evidence was presented concerning the lighting in the research parking lot on the night of the incident. Two lights on the side of the research building, which normally provided some of the light in the research parking lot, were not lit. The testimony as to the lighting conditions in the research parking lot was in conflict. Two witnesses described it as “poor,” “dim,” and “very dimly lighted.” However, two other witnesses said it was “good” and “fair to good.”

Finally, plaintiffs presented testimony from two experts in security matters. Both concluded that the hospital’s security on the night of the shooting was “totally inadequate.” They based their conclusions on (1) the insufficient number of guards, in view of the responsibilities assigned to them and *123 the size of the premises; 4 (2) inadequate administration of the security force; (3) failure to arm the guards with defensive weapons; (4) inadequate television monitoring of the parking lot areas; (5) a lack of any means of communication with the police department on an emergency basis; and (6) an absence of signs warning that the area was guarded. One expert concluded that these aspects rendered the research parking lot “totally devoid of any deterrents or security” on the night of the shooting.

At the close of plaintiffs’ case in chief, the hospital moved for nonsuit. The trial court granted the motion and entered judgment in the hospital’s favor on the ground that there was insufficient evidence to find the hospital liable.

The court concluded that “plaintiffs failed to introduce evidence essential to prove the following elements of their case: [1] (a) Notice of prior crimes of the same or similar nature in the same or similar portion of defendant’s premises; [1] (b) The reasonable foreseeability of the subject crime occurring; [f] (c) The minimum standards of security for premises similar to those of defendant for the period of time and locality involved; [and] [5] (d) Any proof of causation . . . .”

Plaintiffs appeal from that judgment and from the summary judgment entered in favor of Exchange.

H.

The primary question presented by this appeal is whether foreseeability, for the purposes of establishing a landowner’s liability for the criminal acts of third persons on the landowner’s property, may be established other than by evidence of prior similar incidents on those premises. Since foreseeability is of primary importance in establishing the element of duty (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46 [123 Cal.Rptr. 468, 539 P.2d 36]), it is helpful to review the law in this area.

It is well settled that an owner of land has a duty “to take affirmative action to control the wrongful acts of third persons which threaten invitees where the [owner] has reasonable cause to anticipate such acts and the probability of injury resulting therefrom.” (Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 121 [52 Cal.Rptr. 561, 416 P.2d 793].) This duty is premised on the special relationship between the landowner and the invitee *124 (see Rest.2d Torts, §§ 314A, 315) and the general duty to exercise reasonable care in the management of one’s property (see Civ. Code, § 1714, subd. (a); 5 Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 806-807 [205 Cal.Rptr. 842, 685 P.2d 1193]).

“It has long been recognized that ‘a possessor of land who holds it open to the public for entry for business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent or intentionally harmful acts of third persons . . . and by the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.’” (Peterson v. San Francisco Community College Dist., supra, 36 Cal.3d at p. 807, quoting Rest.2d Torts, § 344.)

The Restatement Second of Torts, section 344, comment (f) further details the circumstances under which such a duty arises: “Since the [owner of land] is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection. ” (Italics added.)

Whether such a duty exists is a question of law to be determined on a case-by-case basis. (Weirum v. RKO General, Inc., supra, 15 Cal.3d at p. 46.) In considering whether one owes another a duty of care, several factors must be weighed, including: “ ‘ “[T]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and con *125 sequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. [Citations.]” (Rowland v. Christian (1968) 69 Cal.2d 108, 113 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496]; [citations].)’ ” (Peterson v. San Francisco Community College Dist., supra, 36 Cal.3d at p. 806.)

It is clear that foreseeability is but one factor to be weighed in determining whether a landowner owes a duty in a particular case. “In this balancing process, foreseeability is an elastic factor. (2 Harper & James [Law of Torts (1956)] § 18.2, at p. 1026.) The degree of foreseeability necessary to warrant the finding of a duty will thus vary from case to case. For example, in cases where the burden of preventing fiiture harm is great, a high degree of foreseeability may be required. [Citation.] On the other hand, in cases where there are strong policy reasons for preventing the harm, or the harm can be prevented by simple means, a lesser degree of foreseeability may be required.” (Gomez v. Ticor (1983) 145 Cal.App.3d 622, 629-630 [193 Cal.Rptr. 600].) Thus, foreseeability is a somewhat flexible concept.

A recent line of Court of Appeal cases has rigidified the foreseeability concept in situations involving a landowner’s liability for the criminal acts of third persons against invitees. Those cases have established the rule that “in the absence of prior similar incidents, an owner of land is not bound to anticipate the criminal activities of third persons, particularly where the wrongdoer was a complete stranger to both the landowner and the victim and where the criminal activity leading to the injury came about precipitously.” (Wingard v. Safeway Stores, Inc. (1981) 123 Cal.App.3d 37, 43 [176 Cal.Rptr. 320]; accord Anaya v. Turk (1984) 151 Cal.App.3d 1092, 1099 [199 Cal.Rptr. 187]; Riley v. Marcus (1981) 125 Cal.App.3d 103, 109 & fn. 2 [177 Cal.Rptr. 827]; Jamison v. Mark C. Bloome Co. (1980) 112 Cal.App.3d 570, 578-580 [169 Cal.Rptr. 399]; Totten v. More Oakland Residential Housing, Inc. (1976) 63 Cal.App.3d 538, 543 [134 Cal.Rptr. 29]; Rogers v. Jones (1976) 56 Cal.App.3d 346, 351-352 [128 Cal.Rptr. 404]; see also Jubert v. Shalom Realty (1982) 135 Cal.App.3d Supp. 1, 6 [185 Cal.Rptr. 641].)

This rule is fatally flawed in numerous respects. First, the rule leads to results which are contrary to public policy. The rule has the effect of discouraging landowners from taking adequate measures to protect premises which they know are dangerous. This result contravenes the policy of preventing fiiture harm. Moreover, under the rule, the first victim always loses, while subsequent victims are permitted recovery. Such a result is not only unfair, but is inimical to the important policy of compensating injured par *126 ties (Peterson v. San Francisco Community Cffollege Dist., supra, 36 Cal.3d at p. 814). Surely, a landowner should not get one free assault before he can be held liable for criminal acts which occur on his property.

Second, a rule which limits evidence of foreseeability to prior similar criminal acts leads to arbitrary results and distinctions. (Mullins v. Pine Manor College (1983) 389 Mass. 47 [449 N.E.2d 331, 337], fn. 12.) Under this rule, there is uncertainty as to how “similar” the prior incidents must be to satisfy the rule. The rule raises a number of other troubling questions. For example, how close in time do the prior incidents have to be? How near in location must they be? The rule invites different courts to enunciate different standards of foreseeability based on their resolution of these questions.

Third, the rule erroneously equates foreseeability of a particular act with previous occurrences of similar acts. This court has already rejected that notion. “ ‘The mere fact that a particular kind of an accident has not happened before does not . . . show that such accident is one which might not reasonably have been anticipated.’ [Citation.] Thus, the fortuitous absence of prior injury does not justify relieving defendant from responsibility for the foreseeable consequences of its acts.” (Weirum v. RKO General, Inc., supra, 15 Cal.3d at p. 47.)

Finally, the “prior similar incidents” rule improperly removes too many cases from the jury’s consideration. It is well established that foreseeability is ordinarily a question of fact. (Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 56 [192 Cal.Rptr. 857, 665 P.2d 947]; Weirum v. RKO General, Inc., supra, 15 Cal.3d at p. 46.) “It may be decided as a question of law only if, ‘under the undisputed facts there is no room for a reasonable difference of opinion.’ [Citations.]” (Bigbee v. Pacific Tel. & Tel. Co., supra, 34 Cal.3d at p. 56.)

There is a general reluctance to remove foreseeability questions from the jury. (See Cohen v. Southland Corp. (1984) 157 Cal.App.3d 130, 140-141 [203 Cal.Rptr. 572].) Foreseeability “‘is not to be measured by what is more probable than not, but includes whatever is likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it in guiding practical conduct. ’ [Citation.] One may be held accountable for creating even ‘ “the risk of a slight possibility of injury if a reasonably prudent [person] would not do so.’”” (Bigbee v. Pacific Tel. & Tel. Co., supra, 34 Cal.3d at p. 57.)

Thus, foreseeability is determined in light of all the circumstances and not by a rigid application of a mechanical “prior similars” rule. (Cf. *127 Bigbee v. Pacific Tel. & Tel. Co., supra, 34 Cal.3d at pp. 57-58.) As this court has held, “what is required to be foreseeable is the general character of the event or harm ... not its precise nature or manner of occurrence. ” (Ibid.) Prior similar incidents are helpful to determine foreseeability but they are not necessary. A rule that limits evidence of foreseeability to prior similar incidents deprives the jury of its role in determining that question.

A number of Courts of Appeal have properly recognized that evidence of prior similar incidents is not the sine qua non of a finding of foreseeability. (Kwaitkowski v. Superior Trading Co. (1981) 123 Cal.App.3d 324, 329 [176 Cal.Rptr. 494]; Gomez v. Ticor, supra, 145 Cal.App.3d 622, 630; see also Cohen v. Southland Corp., supra, 157 Cal.App.3d 130, 140-142.) These cases express the better view.

In Kwaitkowski v. Superior Trading Co., supra, 123 Cal.App.3d 324, the plaintiff was raped and robbed in the lobby of her apartment building. She sued her landlords, alleging that they had notice that (1) the lock of the lobby entrance door was defective at the time of the attack, (2) the apartment building was in a “high crime area,” and (3) that an assault and robbery had occurred previously in another common area of the building. The trial court sustained the landlords’ demurrer without leave to amend. (Id., at pp. 325-326.)

In reversing the judgment of dismissal, the Court of Appeal noted that “[fjoreseeability does not require prior identical or even similar events.” (123 Cal.App.3d at p. 329.) The court reasoned that “[w]hether a given criminal act is within the class of injuries which is reasonably foreseeable depends on the totality of the circumstances and not on arbitrary distinctions . . . .” (Id., at p. 329.) In concluding that the attack was foreseeable, the court focused on the defective nature of the premises (a broken lock), the easy access that strangers had to the interior of the building, the neighborhood in which the apartment building was located, and the prior assault and robbery. (Id., at pp. 328-329.)

Two Courts of Appeal have echoed similar concerns. (Gomez v. Ticor, supra, 145 Cal.App.3d 622, 630; Cohen v. Southland Corp., supra, 157 Cal.App.3d 130, 140-142.) These courts have adhered to the Rowland analysis of landowner duty, weighing foreseeability with other factors. (See Rowland, supra, 69 Cal.2d at pp. 112-113; ante, at p. 124.) Both courts have also emphasized that foreseeability should be determined by the jury in light of all the circumstances.

In Gomez, robbers shot and killed their victim as he was returning to his car in the parking structure of an office building. Plaintiffs, the victim’s *128 survivors, introduced evidence of the “high-crime character” of the neighborhood and of specific instances of theft and vandalism. Reversing summary judgment in favor of the defendant, the Court of Appeal held that despite the plaintiffs’ failure to present evidence of prior assaults on the premises, a question of fact remained as to the foreseeability of the attack. (145 Cal.App.3d at p. 632.)

The court noted that “in its very operation of a parking structure, defendant may be said to have created ‘an especial temptation and opportunity for criminal misconduct,’ thus increasing the foreseeability of the attack.” (145 Cal.App.3d at p. 628, quoting Prosser, Torts (4th ed. 1971) § 33, p. 174.) “[T]he deserted . . . nature of these structures, especially at night, makes them likely places for robbers and rapists to lie in wait. Robbery, rape, and violent consequences to anyone who interrupts these crimes, may thus also be foreseeable. ” (145 Cal.App.3d at p. 628.)

Applying a Rowland analysis, the Gomez court held that the foreseeability of the attack would have engendered a minimal duty to provide a “ ‘first line of defense.’” (Gomez, supra, 145 Cal.App.3d at pp. 629-632.) The court noted that “[a] lesser degree of foreseeability is required when the proposed duty is minimal, i.e., when it involves the taking of simple, effective, easily defined steps.” (Id., at p. 632.) “[T]he peculiar attraction which a large commercial building’s unattended parking structure poses for the criminal may necessitate some minimal human or mechanical means of protecting patrons. . . . [S]uch minimal precautions are certain to have an appreciable effect in preventing crimes and in warning patrons . . . .” (Ibid.) The court concluded that such minimal measures would not “place an onerous burden upon [the] defendant or society.” (Id., at p. 633.)

In Cohen v. Southland Corp., supra, 157 Cal.App.3d 130, a customer in a 7-Eleven store was shot while attempting to prevent an armed robbery. The customer sued the owner, the franchisee and an employee of the store, alleging that the defendants negligently failed to protect store patrons from assault or other threatening behavior by would-be robbers. (Id., at p. 134.)

The Court of Appeal reversed a summary judgment in favor of the defendants. Since robberies had previously occurred at the particular store, 6 and nighttime robberies of other 7-Eleven stores were frequent, the court held that the evidence raised a triable issue of fact as to foreseeability of the injury. (Cohen, supra, 157 Cal.App.3d at p. 139.) Noting the general reluctance to remove foreseeability questions from the jury, the court rea *129 soned that “[i]n the very operation of an allnight convenience store, defendants may be said to have created ‘an especial temptation and opportunity for criminal misconduct,’ thus increasing the foreseeability of injury resulting from third party misconduct. . . .” (Id., at pp. 140-141, quoting Prosser, Torts, supra, § 33, p. 174.)

The Court of Appeal then proceeded to analyze the defendants’ duty in terms of the Rowland factors. If the plaintiff established that the injury was foreseeable, then the defendants owed him a minimal duty of care. (Cohen, supra, 157 Cal.App.3d at p. 143.) The imposition of a duty to take reasonable precautions against nighttime robberies would not place an onerous burden on the defendants or the community. Rather, the community would benefit from the imposition of such a duty. (Id., at p. 142.)

The courts in both Gomez and Cohen analyzed foreseeability in light of all the circumstances, correctly recognizing that foreseeability depends on the facts in each case. Prior incidents, whether similar or not, were properly held to constitute evidence of foreseeability. Such incidents were helpful in establishing foreseeability, but not required to satisfy this element.

As Gomez and Cohen illustrate, other types of evidence may also establish foreseeability, such as the nature, condition and location of the defendant’s premises. In analyzing foreseeability in this manner, these courts properly followed the well-settled rule that “what is required to be foreseeable is the general character of the event or harm . . . not its precise nature or manner of occurrence.” (Bigbee v. Pacific Tel. & Tel. Co., supra, 34 Cal.3d at pp. 57-58.) In addition, both Gomez and Cohen correctly analyzed the defendant-landowner’s duty in terms of the Rowland factors.

HI.

In the present case, this court must determine whether the trial court’s invocation of the “prior similar incidents” rule was a proper basis on which to grant defendant’s motion for nonsuit.

A judgment of nonsuit removes the case from the trier of fact. For this reason, courts have traditionally taken a very restrictive view of the circumstances under which such a judgment is proper. Thus, it is established that a trial court may not grant a defendant’s motion for nonsuit if the plaintiff’s evidence would support a jury verdict in the plaintiff’s favor. (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 117-118 [184 Cal.Rptr. 891, 649 P.2d 224, 35 A.L.R.4th 1036]; Ewing v. Cloverleaf Bowl (1978) 20 Cal.3d 389, 395 [143 Cal.Rptr. 13, 572 P.2d 1155].)

*130 “In determining whether plaintiff’s evidence is sufficient, the [trial] court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give ‘to the plaintiff’s] evidence all the value to which it is legally entitled, . . . indulging every legitimate inference which may be drawn from the evidence in plaintiff’s] favor . . . .’ [Citation.]” (Campbell v. General Motors Corp., supra, 32 Cal.3d at p. 118.) “ ‘The mere fact that other inferences adverse to plaintiff might be drawn does not render the inference favorable to plaintiff too conjectural or speculative for consideration [by the jury].’ [Citations.]” (Id., at p. 121.)

The totality of the circumstances in this case strongly suggests that the foreseeability of an assault in the research parking lot should have been submitted to the jury. The hospital was located in a high crime area. Several threatened assaults had occurred in the emergency room area directly across from the research parking lot. There had been thefts in the area. A hospital security guard testified that incidents involving “harassment” were “very common.” According to one expert witness, emergency room facilities and surrounding areas are inherently dangerous. Parking lots, by their very nature, create an “especial temptation and opportunity for criminal misconduct . . . .” (Prosser, Torts, supra, § 33, p. 174; see Gomez v. Ticor, supra, 145 Cal.App.3d at p. 628.)

Further, two of the lights on the building adjacent to the research parking lot, which normally illuminated that area, were not working on the evening Dr. Isaacs was shot. Two witnesses testified that the research parking lot itself had poor lighting. “That a mugger thrives in dark places is a matter of common knowledge.” (Slapin v. Los Angeles International Airport (1976) 65 Cal.App.3d 484, 488 [135 Cal.Rptr. 296].) In addition, the research parking lot was devoid of any security at the time of Dr. Isaacs’ shooting. This contrasted markedly with the security at another parking lot on the hospital’s premises, where a security guard was stationed during shift changes and activity was monitored by a television camera. This information, all of which was known or should have been known to the hospital, was sufficient to provide notice of a risk of an assault in the research parking lot.

Under these circumstances, the trial court erred in concluding as a matter of law that Dr. Isaacs’ assault was not foreseeable. 7 “ ‘[J]ust as we may not *131 rely upon our private judgment on this issue, so the trial court may not impose its private judgment upon a situation, such as this, in which reasonable minds may differ.’ [Citation.]” (Bigbee v. Pacific Tel. & Tel. Co., supra, 34 Cal.3d at p. 59.)

It is of no consequence that the injury to plaintiffs was brought about by the criminal acts of a third person. “If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.” (Rest.2d Torts, § 449; accord Bigbee v. Pacific Tel. & Tel. Co., supra, 34 Cal.3d at p. 58; Weirum v. RKO General, Inc., supra, 15 Cal.3d at p. 47.)

Applying the Rowland factors (ante, at pp. 124-125), it is evident that the hospital had a duty to take precautions to protect Dr. Isaacs from criminal assaults in the parking lot. The foreseeability of an assault was high in comparison to the minimal burden on the hospital to take security measures to ensure the safety of persons using the research parking lot.

The value to the community of imposing such a duty is manifest. That plaintiff suffered serious injury is clear. A jury’s affirmative finding on foreseeability would establish not only “ ‘the foreseeability of harm to plaintiff,’ ” but also a sufficiently “ ‘close[] connection between the defendant[s’] conduct and the injury suffered.’” (See Bigbee v. Pacific Tel. & Tel. Co., supra, 34 Cal.3d at pp. 59-60, fn. 14.) 8