Actually, they do. To win in a negligence lawsuit one must prove the defendant had a duty. That the defendant breached that duty and that the defendant's breach actually and proximately caused the damages to the plaintiff. Duty + breach + causation + damages = negligence.
Here, we don't know what the landlord's duty was here as we don't have the history of the property. While we do have the potential duty based on contract, I think it unlikely to be proven and is arguable. Having a fence does not raise the duty of a landlord to keep the fence in good repair absent a specific reason for the fence or a contractual issue.
Arguendo, a duty, would a reasonable landlord in like circumstances have been in breach of that duty by not repairing the fence quicker? I don't know. I don't know how long it takes to repair fences and the like. Besides, we still haven't defined the precise duty we're claiming to have been breached. I can assure subway and the OP it is *not* that the landlord guaranteed everything was going to be safe and protected.
Arguendo a duty and a breach, but for the broken fence, would the theft have occurred? Again, we have no idea. Unless the lot was completely secured where any entry or exit was recorded and a fence surrounded it, we can't just assume who committed the crime. There has to be some proof in some way. We don't even need to get to proximate cause as actual cause is a problem here. It's almost never a problem. The only way to go farther is to expand the duty of the landlord to that he promised to secure the vehicle (a possibility with the manager's statement). Or, based on specific historical instances the landlord did not take proper steps (which are defined as those a reasonable person in like circumstances would take) to address the specific problem. Then the breach is not that the fence was broken, but that the steps were not taken. (Security guard, video survellience, posting of warning signs, changing parking rules, whatever a reasonable person in like circumstances would do to prevent the known danger.) Again, we have no facts to determine any of this.
Damages seem easy here. No need for discussion beyond the fact a court may find the OP was at fault in some way and could have the damage award reduced. (I don't think so, but juries love to find fault with plaintiffs to some degree.)
Then, we have the possibility of an assumption of the risk defense. I don't think so, but don't really want to argue the point as it's not key to the discussion.
So, I agree with YAG and am a bit sorry my plea to let subway play led him to think he's arguing a done deal. There is a lot wrong here and it will be very difficult to find liability on the part of the landlord for the criminal act of others. Sure, CA has turned to a pure negligence state and has changed from the old way of not finding proximated cause for third party criminal acts to a more modern way of knowledge of potential harm and possibility. But, that's a long way from the landlord writing up a check for the OP's tunes.
Starting with the duty issue.
The poster had already mentioned that the property was advertised as a gated one. A gated parking lot increases safety and gives Landlord the ability to ask a higher rent compared to his neighbour Landlord who has an open parking lot. Obviously tenants do not pay for such types of benefits for free. They expect something in return. There is some type of contractual liability and unless the contract holds tenants responsible for the gate repair, it is Landlord's responsibility to put a reasonable effort for the repair and maintenance of it.
Which leads us to the second part.
Breach
The issue is not if the Landlord promised the safety of the cars. Most probably he did not. However, he did promise to provide reasonable safety for tenants cars which is linked with his obligation to make reasonable effort to keep the gate in good condition.
I also do not know what is a "reasonable amount of time" for fixing the gate.
I do say though that most probably is less than a few weeks. Should someone take an advice from an expert in gate installation.? Sure
Consulting a tenant lawyer for a small fee for half an hour might also bring some answers on this question.
Continue to causation
I said that the plaintiff does not have to show the EXACT consequence of defendant's negligence. Preponderance of the evidence is adequate to prove causation in such a case.
he does not have to prove that the theft WOULD NOT have happen if the defendant had not breached his duty and everything was in good order. All he needs to show is the amount of likehood.
I will let the proffesionals speak here
Copy and paste the following link
Essentials of Torts - Google Book Search
It is from google books, "esentials of torts"
Figure 13-3
"weight of the evidence on cause in fact: eight possibilities"
Possibility three
"The evidence shows that it is MORE LIKELY THAN NOT that, but for what the defendant did, the plaintiff's injury would not have occured.
consequencies:
If the case falls into one of these three categories (the above is number three), for the but for test or the substantial factor test,
the plaintiff has carried the burden of proving by a preponderance of the evidence that the defendant was the cause in fact of the plaintiff's injury."
So even if it is still likely that the injury would have happened in the absence of the defendant's action, it does not really matter.
Now if you say that the tenant in our case might need to get a police report about theft incidents in his apartment complex during the last year, i get it. For sure if you have frequent cases of thefts in the parking lot even when the gate was working properly, it is difficult to prove causation. Most probably if the tenant chooses to follow the legal path, he would have to forget about negligence and go with some other type of lawsuit related to breach of contract
As to the damages it seems we agree and since this is a small claims court there is no issue of what juries tend to do .
The last point is that I never implied or going to imply that any case is a “done deal”. But I am not going also to stay silent when others (not you) tell or imply that it is irrational to expect to win it. I am mostly interested to see if there is enough evidence to justify the time spend to pursue it and get a half hour appointment with a professional for a small fee.