10 - Commentary on Sharon P. v. Arman, Ltd.

Summary

Sharon P. v. Arman, Ltd. is representative of a line of cases refusing to impose a duty of reasonable care on defendants in third-party rape cases. The plaintiff in Sharon P. was raped by an unknown assailant in an underground parking garage owned by the defendant. The California Supreme Court ruled that no duty should be imposed because the rape was not reasonably foreseeable, even though conditions in the garage had been allowed to deteriorate and the underground location invited criminal activity. The rewritten feminist opinion unpacks the concept of foreseeability to uncover hidden male bias in its application. Arguing that women’s experiences of rape and the fear of rape must be taken into account, the feminist opinion concludes that the risk of rape is objectively foreseeable. To conclude otherwise would ignore the systematic vulnerability of women plaintiffs and allow gender bias to infiltrate tort law. The accompanying commentary updates developments in California and elsewhere and argues for extending a duty of reasonable care to all third-party rape cases.