Opinion
7649/99.
Decided October 12, 2004.
Migdalia Afflick and Blanca Granados are seeking damages for injury allegedly suffered as a result of an armed robbery at One World Trade Center on January 13, 1998. Defendants are The Port Authority of New York and New Jersey, owner of One World Trade Center; Brink's (actually "Brinks") Inc., an armored car carrier that was delivering one million dollars in cash to a bank located in One World Trade Center; and Summit Capital Group, Inc. and Summit Security, who provided security services at One World Trade Center under contract with The Port Authority. In these motions, Brinks and The Port Authority seek summary judgment dismissing Plaintiffs' Amended Verified Complaint.
On the day of the robbery, Ms. Afflick and Ms. Granados were working for contractors engaged in projects at One World Trade Center. Ms. Afflick was an electrician scheduled to work on the 22nd floor; Ms. Granados was a laborer assigned to demolition on the 23rd floor. At approximately 8:30 a.m., Ms. Afflick and Ms. Granados were passengers in a freight elevator operated by an employee of The Port Authority. Other passengers included a maintenance worker, a Port Authority inspector, and two Brinks employees a "messenger" named Rudolph Moses and a guard named Joseph Gephard. The Brinks employees were delivering the "merchandise" to Bank of America, located on the 11th floor.
The elevator ascended to the third floor, stopped, and the maintenance worker exited. The elevator stopped again on the 11th floor where, after the doors opened, the occupants faced three men wearing ski masks, two carrying guns. The men entered the elevator, announced a robbery, disarmed the Brinks guard, handcuffed both Brinks employees, and bound the hands of the others with electrical tape. (Ms. Granados alleges that one of the robbers held a gun to her head.) The robbers exited the elevator with the bags of money, and sent the elevator to the 22nd or 23rd floor where the occupants were untied. Ms. Afflick and Ms. Granados each allege that "she was caused to be, among other things, assaulted, abducted, restrained, and/or threatened with bodily harm, thereby sustaining serious and severe permanent injuries." (Amended Verified Complaint, ¶¶ 33, 41.)
Plaintiffs' respective claims are grounded in common law negligence. On these motions, Brinks and The Port Authority contend that there are no triable issues on three of the essential "elements" of a cause of action for negligence, i.e. duty, breach of duty, and proximate cause. Each of the moving Defendants conceives of Plaintiffs' respective claims as charging Defendant with a failure to act for their benefit, in failing to prevent the robbery or protect Plaintiffs from it. And so, Brinks disclaims any "duty to prevent the three gunmen from either gaining access to the World Trade Center or to attempt to stop the robbery as it was occurring." (Memorandum of Law in Support of Brinks' ( sic) Motion for Summary Judgment, at 2.) The Port Authority disclaims any "duty of protection to the plaintiffs, because an armed robbery was not a reasonably foreseeable criminal act that the Port Authority was required to protect against." (Memorandum of Law in Support of The Port Authority of New York and New Jersey's Cross-Motion for Summary Judgment, at 4.)
But Plaintiffs charge Defendants with "caus[ing] and creat[ing] the harm to plaintiffs" by "putting third parties in a situation where they were at risk of being harmed". (Plaintiffs' Affirmation in Opposition, ¶¶ 17, 19.) Specifically, Defendants were at fault in "not keeping Brinks separate from the public in this particular elevator", "confining the general public with material that is at high risk of theft." ( Id., ¶¶ 26, 27.)
Plaintiffs' contentions raise a question that is not clearly answered by the extensive caselaw explicating the duty concept: When, if at all, is there a duty to refrain from action that puts another person at risk of harm from third parties? Plaintiffs cite no authority in support of their contention that both Brinks and The Port Authority owed them such a duty on the morning of January 13, 1998. Consistent with a conception of Plaintiffs' claims as charging a failure to prevent the robbery or protect Plaintiffs from the gunmen, Brinks and The Port Authority rely on, what appears be, the most analogous authority, but that authority does not address the central contention of Plaintiffs' claims. Despite its characterization of these claims as "frivolous" and "meritless" (Reply Affirmation in Further Support of Motion for Summary Judgment, ¶¶ 2, 12), Brinks acknowledges that its employees owed Plaintiffs a duty "to act in a reasonable fashion once the robbery took place" ( id., ¶ 11). Brinks does not explain, however, how or why a duty to act reasonably arose then, if one did not exist before.
Duty
In our State, the concept of duty in negligence law can fairly be said to rest in great part on two early opinions by Judge Cardozo. In MacPherson v. Buick Motor Co. ( 217 NY 382), the Court of Appeals was asked to determine whether the manufacturer of an automobile owed a duty of care in its manufacture to anyone but the immediate purchaser from the manufacturer. Recognizing that an automobile "when negligently made . . . is . . . a thing of danger", "[i]f to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully." ( Id., at 389.) "There must . . . be knowledge that in the usual course of events the danger will be shared by others than the buyer . . . The proximity or remoteness of the relation is a factor to be considered." ( Id., at 389-90.) With MacPherson, notwithstanding the absence of the juridical relationship of privity, a "relation" created by the knowledge that "the danger will be shared" would establish duty.
In Palsgraf v. Long Island Railroad Co. ( 248 NY 339), the Court made clear that, while a juridical relationship was not necessary to duty, negligence could not exist "at large or in the abstract", but only "in relation to the plaintiff" ( id., at 346). The classic statement is that "[t]he risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension." ( Id., at 344.) In that case "relation" was absent, since "there was nothing in the situation to suggest to the most cautious mind that the parcel wrapped in newspaper would spread wreckage through the station." ( Id., at 345.) "Negligence, like risk, is . . . a term of relation." ( Id.)
MacPherson and Palsgraf linked duty to "relation", in the one case expanded by the "knowledge that . . . the danger will be shared", in the other contracted to the "range of apprehension", in each determined in part by considerations of time and space. The Court of Appeals has repeatedly cautioned, however, that "the boundaries of duty are not simply contracted or expanded by the notion of foreseeability." (See Palka v. Servicemaster Management Services Corp., 83 NY2d 579, 589; see also 532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Center, Inc., 96 NY2d 280, 289 ["foreseeability of harm does not define duty"]; D'Amico v. Christie, 71 NY2d 76, 87 ["Foreseeability of harm is alone not enough"]; Pulka v. Edelman, 40 NY2d 781, 785 ["Foreseeability should not be confused with duty"].)
Rather, Palsgraf's classic statement, quoted above, "is applicable to determine the scope of duty only after it is been determined that there is a duty." ( Id.; see also Waters v. New York City Housing Authority, 69 NY2d 225, 229.)
Despite the caution advised by the Court of Appeals, generations of first-year law students are taught the "unforeseeable plaintiff doctrine" of Palsgraf, as are judges who seek the assistance of our Pattern Jury Instructions ( see Comment to PJI 2:12, at 218 [2004].) Nonetheless, when the question is the "existence" of a duty, rather than its "scope", "foreseeability of the injury" is only one of the factors to be considered. ( See Tobin v. Grossman, 24 NY2d 609, 615.) In the "search for [the] shimmering line of duty" ( Palka v. Servicemaster Management Services Corp., 83 NY2d at 585), courts must consider the "reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability" ( id., at 586; see also Peralta v. Henriquez, 100 NY2d 139, 144; Tobin v. Grossman, 24 NY2d at 615-19.)
Duty springs from "common concepts of morality, logic and consideration of the social consequences of imposing the duty" ( see McNulty v. City of New York, 100 NY2d 227, 232 [ quoting Tenuto v. Lederle Laboratories, Division of American Cyanamid Co., 90 NY2d 606, 612; see also Waters v. New York City Housing Authority, 69 NY2d at 229), and reflects "what is socially, culturally and economically acceptable" ( Darby v. Compagnie National Air France, 96 NY2d 343, 347). In assessing these considerations, courts must "limit the legal consequences of wrongs to a controllable degree." ( Peralta v. Henriquez, 100 NY2d at 144-45 [ quoting Tobin v. Grossman, 24 NY2d at 619.) The Second Department has categorized these and related factors as "moral", "preventive", "economic", and "administrative" considerations. ( See Donohue v. Copiague Union Free School District, 64 AD2d 29, 33 [2d Dept 1978], aff'd 47 NY2d 440.)
"This sort of line-drawing" is not only "invariably difficult", but "in a sense arbitrary." ( McNulty v. City of New York, 100 NY2d at 234-35 [Kaye, J., concurring].) It is a daunting task for trial judges and advocates, particularly on motions for summary judgment. But, even though "difficult to draw", the line "does not lose for that reason its correspondence with realities. Life has relations not capable always of division into inflexible compartments. The moulds expand and shrink." ( Glanzer v. Shepard, 233 NY 236, 241.)
On the pending motions, neither of the movants makes a factual showing on any of the factors, and, except for foreseeability, the factors are not addressed in argument. Unless existing caselaw would require a conclusion that no duty was owned to Plaintiffs as a matter of law, Brinks's motion and The Port Authority's cross-motion must be denied, because neither movant has otherwise established prima facie that it is entitled to judgment. ( See Zuckerman v. City of New York, 49 NY2d 557, 562.)
New York courts have shown "longstanding reluctance to recognize causes of action for negligent infliction of emotional distress, especially in cases where the plaintiff suffers no independent physical or economic injury." ( Broadnax v. Gonzalez, 2 NY3d 148, 153.) Contrary to Brinks's assertion that Plaintiffs "are claiming emotional injuries only as a result of the incident" ( see Affidavit in Support of Motion for Summary Judgment, ¶ 32), Plaintiffs allege a broader range of injury ( see Amended Verified Complaint, ¶¶ 33, 41.) It seems fair to say, however, that the more serious injuries alleged would be characterized as "emotional" and, for the most part, flow independently of any physical contact or constraint.
"While physical injury is not a necessary element of a cause of action to recover for negligent infliction of emotional distress, such a cause of action must generally be premised upon a breach of a duty owed directly to the plaintiff which either unreasonably endangers a plaintiff's physical safety or causes the plaintiff to fear for his or her own safety." (E.B. v. Liberation Publications, Inc., 7 AD3d 566, 567 [2d Dept 2004]; see also Kennedy v. McKesson Co., 58 NY2d 500, 504-05; Mortise v. Unitd States, 910 FSupp 74, 77-78 [NDNY 1995].)
In Battalla v. State of New York ( 10 NY2d 237), the plaintiff, placed in a chair lift by an employee at Bellayre Mountain Ski Center, "became frightened and hysterical upon the decent" as a result of the employee's "fail[ure] to secure and properly lock the belt intended to protect the occupant" ( id., at 238). The Court held that Mitchell v. Rochester Railway Co. ( 151 NY 107), which had "decided that there could be no recovery for injuries, physical or mental, incurred by fright negligently induced", should be overruled. ( Battalla v. State of New York, 10 NY2d at 238.) The Court did not articulate the source of the duty owed to the plaintiff, although by implication it distinguished the case before it from those that found an exception to the no-recovery rule based upon "slight impact" or a "contract relationship". ( See id., at 241.) It is at least arguable that the duty arose when the defendant's employee exposed the plaintiff to an unreasonable risk of bodily harm.
Bovsun v. Sanperi ( 61 NY2d 219) held that "where a defendant negligently exposes a plaintiff to an unreasonable risk of bodily injury or death, the plaintiff may recover, as a proper element of his or her damages, damages for injuries suffered in consequence of the observation of the serious injury or death of a member of his or her immediate family assuming, of course, that it is established that the defendant's conduct was a substantial factor bringing about such injury or death" ( id., at 230-31 [footnote omitted].) This "zone-of-danger rule . . . is premised on the traditional negligence concept that by unreasonably endangering the plaintiff's physical safety the defendant has breached a duty owed to him or her for which he or she should recover all damages sustained" ( id., at 228-29), including emotional distress resulting from both the fear for one's own safety and resulting from the observation of an injured family member ( see id., at 228, 231 n. 10.)
The Second Department has cited Bovsun and Battalla for the proposition that "recovery . . . for purely emotional harm . . . must generally be premised upon a breach of duty owed directly to the plaintiff which either endangered the plaintiff's physical safety or caused the plaintiff fear for his or her own physical safety." ( Lancellotti v. Howard, 155 AD2d 588, 589-90 [2d Dept 1989].)
In a case involving bodily injury, Tenuto v. Lederle Laboratories, Division of American Cyanamid Co. ( 90 NY2d 606), the Court of Appeals held that a doctor who administered an oral vaccine against polio to a child owed a "duty of care to warn a patient's family of the risk of incurring . . . [the] disease from the patient" and of "the need to employ precautions" ( see id., at 612, 614), "despite the absence of a direct doctor/patient treatment relationship" between the doctor and the family ( see id., at 612.) But in McNulty v. City of New York ( 100 NY2d 227), the Court held that "doctors owed [no] duty of care to plaintiff, a friend of a woman treated for infectious meningitis who subsequently contracted the disease, based upon the doctor's alleged negative answer to plaintiff's question whether she needed treatment after being in close contact with her friend" ( id., at 229.) Tenuto was distinguished on the ground that, there, a "critical factor" was that the doctor's act in administering the vaccine to the child created the serious risk of physical harm to the family, whereas in McNulty the risk of harm to the patient's friend was not the result of the doctor's performance of any medical service to the patient. ( See id., at 233.) No doubt, the doctor/patient treatment relationship that created a duty of care to the child in Tenuto was also significant. ( See id.) One cannot fairly ignore, however, that in Tenuto the doctor's act placed the family at risk of harm, whereas in McNulty the doctor failed to protect the friend who was already at risk.
It should be obvious that the cases just discussed, as well as the emotional distress cases, differ from ours in that the harm to which Plaintiffs were allegedly exposed by the acts of Brinks's and The Port Authority's respective employees was harm resulting from the criminal conduct of third parties. Generally, courts have found
"a duty to control the conduct of others where there is a special relationship: a relationship between defendant and a third person whose actions expose plaintiff to harm such as would require the defendant to attempt to control the third person's conduct; or a relationship between the defendant and plaintiff requiring defendant to protect the plaintiff from the conduct of others . . . Under the appropriate circumstances, the traditional master-servant relationship, the relationship between a parent and child, or the relationship between a common carrier and its passenger are examples of such relationships." ( Purdy v. Public Administrator of Westchester County, 72 NY2d 1, 8 [1988]; see also D'Amico v. Christie, 71 NY2d at 88-89; Pulka v. Edelman, 40 NY2d 781, 783-84 [1976].)
Landowners have a duty to act in a reasonable manner to prevent harm to those on their property from the "conduct of third persons on their premises when they have the opportunity to control such persons and are reasonably aware of the need for such control." ( D'Amico v. Christie, 71 NY2d at 85.) But where the landowner has no relationship to the wrongdoer, and the injured plaintiff has "no association with the premises independent of the crime itself", there will no duty, "regardless of whether the ultimate harm could be found to be reasonably foreseeable." ( Waters v. New York City Housing Authority, 69 NY2d at 230-31.)
Landowners have a "common-law duty to take minimal security precautions against reasonably foreseeable criminal acts by third parties." ( James v. Jamie Towers Housing Co., Inc., 99 NY2d 639, 641; see also Burgos v. Aqueduct Realty Corp., 92 NY2d 544, 548; Nallan v. Helmsley-Spear, Inc., 50 NY2d 507, 518-20.) "[T]o establish foreseebility, the criminal conduct at issue must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location." ( Novikova v. Greenbriar Owners Corp., 258 AD2d 149, 153 [2d Dept 1999]; see also Sobers v. Roth Brothers Partnership Co., 284 AD2d 324 [2d Dept 2001].) "[A]mbient neighborhood crime alone is insufficient to establish forseeability." ( Novikova v. Greenbriar Owners Corp., 258 AD2d at 153; see also Levine v. Fifth Housing Co., Inc., 242 AD2d 564, 565-66 [2d Dept 1997].)
The Port Authority recognizes these principles indeed, relies upon them in contending that "Plaintiffs have failed to establish that the robbery that took place at One World Trade Center was a reasonably foreseeable event, which would have triggered the Port Authority's duty to take reasonable precautions to secure the premises"; specifically, Plaintiffs " have failed to establish that the Port Authority had notice of prior criminal activity at this particular location." ( See Memorandum of Law in Support of The Port Authority of New and New Jersey's Cross-Motion for Summary Judgment, at 4-5 [emphasis added].) But The Port Authority makes no factual showing that the robbery was not foreseeable or that The Port Authority did not have notice of prior criminal activity.
"As a general rule, a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merit of its claim or defense." ( Mennerich v. Esposito, 4 AD3d 399, 400 [2d Dept 2004] [ quoting George Larkin Trucking Co. v. Lisbon Tire Mart, Inc., 185 AD2d 614, 615 [4th Dept 1992].) Specifically, a landowner does not make a prima facie showing on a motion for summary judgment without "affirmatively establishing" that it had no notice of the dangerous condition on which the plaintiff's claim is based. ( See Librandi v. Stop and Shop Food Stores, Inc., 7 AD3d 679, 679-80 [2d Dept 2004]; Redd v. Wizard Bus Tours, Inc., 2003 NY Slip Op 51237[U], *2 [2d and 11th Jud Dists].)
Brinks, of course, is not subject to the duty of a landowner, and did not posses a pre-existing juridical relationship with either Plaintiffs or the gunmen. Caselaw supports Brinks's contentions that "BRINKS did not have the necessary authority to exercise control over the gunmen's conduct so as to give rise to . . . a duty", and that "BRINKS had no duty to prevent any harm to PLAINTIFFS because no special relationship existed between the PLAINTIFFS and BRINKS." ( See Memorandum of Law in Support of Brinks' ( sic) Motion for Summary Judgment, at 3-4 [emphasis added].)
But the absence of a pre-existing juridical relationship does not necessarily end the inquiry. ( See Pulka v. Edelman, 40 NY2d at 783-86.) Plaintiffs, in effect, argue for the application of the "time-honored formula" that distinguishes between "misfeasance and non-feasance", by which "the conduct . . . engenders the relation." ( See H.R. Moch Co. v. Rensselaer Water, 247 NY 160, 167.) So conceived, Brinks's fault (and The Port Authority's) lies in "the commission of a wrong" and not merely "the denial of a benefit."( See id., at 169.)
Brinks does not establish prima facie that as a matter of law it had no duty to avoid placing Plaintiffs at risk of harm by "not keep Brinks separate from the public in this particular elevator." ( See Plaintiffs' Affirmation in Opposition, ¶ 26.) Brinks argues that its employees "had no control over who rode the elevators, whereas the elevator operator, employed by WTC controlled who entered and exited the elevator." (Affirmation in Support of Motion, ¶ 23.) One of Brinks's employees "said to the elevator operator '[t]here are two many people on the elevator'[but] the operator . . . permitted all of the occupants to remain on the elevator". ( Id., ¶ 15.)
Clearly, "control over who rode the elevators" would be a significant factor in determining whether Brinks should be deemed to owe a duty to other passengers. There is, however, nothing in the record on this motion with respect to the procedures, if any, that Brinks arranges with its customers or their landlords so as to minimize the risk to safety during delivery and receipt of valuable "merchandise". As to the day and place in question, Plaintiffs' retort is that "Brinks' ( sic) guards could have removed themselves from the elevator or asked the operator before they got on to let them go up alone. They did not even attempt that." (Plaintiffs' Affirmation in Opposition, ¶ 22.) The record is sparse as to what transpired between the Brinks employees and the elevator operator. The elevator operator has apparently not been deposed.
As previously noted, neither Brinks nor The Port Authority makes any factual showing on any of the factors that are to be considered in determining the existence of a duty. As to one of those factors, foreseeability, Plaintiffs argue:
"Brinks is like a lightening ( sic) rod. Wherever it is it has the foreseeable potential of being struck . . . And just as a person holding a lightening ( sic) rod in a thunderstorm would have a duty not to bring it into a crowd of unsuspecting people, Brinks has a duty to isolate itself from others when transporting over a million dollars of currency." ( Id., ¶ 20.)
In addition, Plaintiffs provide the affidavit of a "Security Specialist", in which the expert states that "[b]ased upon statistical data of robberies of armored vehicles and armored vehicle personnel of the currency they carry, it has been determined that such couriers and their merchandise are a 'target' and thus subject to a higher probability of robbery than non-courier activity." (Affidavit of Duane Atkisson, Exhibit A to Plaintiffs' Affirmation in Opposition, ¶ 4.) No specifics are provided, and nothing is said about the occurrence of robberies in indoor spaces generally or near elevators.
Brinks counters that Plaintiffs' argument, relying on "terms such as 'lightening ( sic) rod' and 'target' . . . to describe BRINKS' ( sic) business" would amount to "a new negligence standard. . . . simply based on the type of business in which BRINKS is engaged." (Reply Affidavit in Further Support of Motion for Summary Judgment, ¶ 5.) Brinks can find some support in duty cases that apply the same rules to banks maintaining automatic teller machines and night depositories that are applied to other types of commercial premises. ( See Lechmanski v. Marine Midland Bank, 259 AD2d 966, 966-67 [4th Dept 1999]; Williams v. Citibank, N.A., 247 AD2d 49, 51-53 [1st Dept 1998]; Vaughan v. Bank of New York, 230 AD2d 731 [2d Dept 1996].) Nonetheless, a duty might be found when the robbery occurs inside the bank, "in an area of the bank's premises proximate to its safe deposit facilities in which the need for adequate security was particularly acute." ( See Moskal v. Fleet Bank, 269 AD2d 260, 260-61 [1st Dept 2000].)
With respect to other factors that are relevant to an assignment of duty, Plaintiffs argue:
"[T]he harm which defendants' negligence has caused was easily preventable, even from a common sense perspective, and would not have involved any additional cost to any of the defendants . . . All that is expected . . . is to follow the simple, generally accepted procedure of not confining the general public with material that is at high risk for theft. Brinks and Port Authority could have accomplished this very easily." (Plaintiffs' Affirmation in Opposition, ¶ 26.)
With respect to considerations of policy, the Court notes that "armored car carriers" and "armored car guards" are regulated by statute and rule in this State. ( See Gen Bus L Art 8-B and Art 8-C; 19 NYCRR § 185.1 et seq; 19 NYCRR § 186.1 et seq.) Among other things, armored car carriers must be licensed and must carry "all risk" insurance of $10 million minimum, in addition to comprehensive general liability insurance; and armored car guards must be registered and meet specified training requirements. Although neither the statute nor regulations address delivery procedures, the legislative scheme evidences a concern about the safety consequences of "the type of business in which BRINKS is engaged." ( See Reply Affidavit in Further Support of Motion for Summary Judgment, ¶ 5.)
In sum, neither Brinks nor The Port Authority has made a prima facie showing that it is entitled to judgment as a matter of law because it did not owe a duty to Plaintiffs. The conclusion is supported by "first principles", articulated in MacPherson and Palsgraff, that define "relation" in part by reference to time, space and the range of apprehension, rather than by the existence of juridical relationships, at least when the negligence charged is action and not inaction.
Breach of Duty and Causation
Brinks and The Port Authority argue that, even if a duty was owed to Plaintiffs, that duty was not breached; and, even if the duty was breached, the breach was not the proximate cause of the harm to Plaintiffs. The Court concludes that neither Defendant has made a prima facie showing that it is entitled to judgment as a matter of law on either of these elements of Plaintiffs' causes of action.
"The objective, reasonable person standard in basic traditional negligence theory . . . necessarily takes into account the circumstances with which the actor was actually confronted when the [incident] occurred, including the reasonably perceivable risk and gravity of harm to others and any special relationship of dependency between the victim and the actor." ( Bethel v. New York City Transit Authority, 92 NY2d 348, 353.) The "reasonable person standard is sufficiently flexible . . . to permit courts and juries fully to take into account the ultrahazardous nature of a tortfeasor's activity." ( Id., at 355.)
The Port Authority makes a showing of "numerous security measures in place on the date of the incident relating to the identification and admittance of persons entering 1 WTC", arguing that it "provid[ed] considerably more than minimal precautions." ( See Memorandum of Law in Support of The Port Authority of New York and New Jersey's Cross-Motion for Summary Judgment, at 2, 4, 5-7.) Putting aside Plaintiffs' allegations that The Port Authority "thwarted [their] attempt to gather information that would provide evidence as to defendant's negligence" ( see Plaintiffs' Affirmation in Opposition, ¶ 13), it may be that The Port Authority has made a prima facie showing that it provided minimal security.
The Port Authority's showing, however, does not address Plaintiffs' contention that a duty was breached when the elevator operator permitted, if not required, Plaintiffs to ride with the Brinks employees and their "merchandise". Of course, the fact that the elevator operator so acted, while perhaps sufficient to establish duty, does not in itself establish a breach of duty unless his conduct was unreasonable under the circumstances. The Port Authority makes no showing that it was not unreasonable, as is its burden on this motion.
Similarly, Brinks makes a showing that its employees "adhered strictly to BRINKS' ( sic) training protocol and procedures, and avoided jeopardizing the safety of all of the elevator occupants once the unexpected robbery began." (Memorandum of Law in Support of Brinks' ( sic) Motion for Summary Judgment, at 7.) Here, too, putting aside Plaintiffs' allegation that Brinks failed to provide safety and training manuals in response to discovery ( see Plaintiff's Affirmation in Opposition, ¶¶ 11-14), it may be that Brinks has made a prima facie showing that it acted reasonably "once the . . . robbery began." But Brinks's showing does not address Plaintiffs' contention that it was unreasonable for the Brinks employees to ride the elevator with Plaintiffs and one million dollars.
Plaintiffs, on the other hand, have provided an expert affidavit, stating that both Brinks and The Port Authority "violated generally accepted principles of security; i.e. that escort procedures require that high risk, high visibility and/or high value properly be segregated from the generalized public during the complete operation of the assignment." (Affidavit of Duane Atkisson, Exhibit A to Plaintiffs' Affirmation in Opposition, ¶ 3.) "[G]enerally accepted security procedures for the transport of such material as the currency involved here require that the delivering party, Brinks, and the party exercising control over the receipt of the delivery into the premises, Port Authority in this case, do not permit the general public to be confined with the couriers in enclosed spaces such as elevators." ( Id., ¶ 7.)
As to proximate cause, both The Port Authority and Brinks contend that the robbery was not the "normal foreseeable consequence" of any negligence on the part of that Defendant ( see Memorandum of Law in Support of The Port Authority of New York and New Jersey's Cross-Motion for Summary Judgment, at 7-8; Memorandum of Law in Support of Brinks' ( sic) Motion for Summary Judgment, at 5-7), with Brinks arguing further that its "act of delivering money to a bank . . . merely creat[ed] the opportunity for a crime to occur" ( see id., at 7.) But neither Defendant makes an affirmative showing that there was no foreseeable connection between Plaintiffs' presence in the elevator with Brinks and its "merchandise" allegedly as a result of Defendants' negligence and Plaintiffs' involvement in an armed robbery.
"Evidence of negligence is not enough by itself to establish liability. It must also be proved that the negligence was the cause of the event which produced the harm sustained by one who brings the complaint." ( Sheehan v. City of New York, 40 NY2d 496, 501.) "The concept of proximate cause, or more appropriately legal cause" ( Derdiarian v. Felix Contracting Corp., 51 NY2d 308, 314) encompass two different, but related, issues: whether the defendant's negligence "was a substantial cause of the events which produced the injury"; and whether "policy considerations that serve to place manageable limits upon liability that flows from negligent conduct" should preclude liability in the particular case. ( See id., at 315.)
"Where the acts of a third person intervene between the defendant's conduct and the plaintiff's injury, . . . liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence." ( Id.) The acts of a third person will be deemed a "superseding cause which interrupted the link between [the defendant's] negligence and plaintiff's injuries" when they are "independent intervening acts which operate upon but do not flow from the original negligence." ( Id., at 315-16.) "An intervening act may not serve as a superseding cause, and relieve an actor of responsibility, where the risk of the intervening act occurring is the very same risk which renders the actor negligent." ( Id., at 316.)
Plaintiffs asset that "if defendants had followed the generally accepted procedure of riding separate from the general public in enclosed spaces, . . . plaintiffs would not have been in the elevator when the robbery took place, . . . [and] they would not have suffered injury." (Plaintiffs' Affirmation in Opposition, ¶ 26.) Assuming the negligence of one or both of the moving Defendants, that "negligence undoubtedly served to place the injured part[ies] at the site of" the occurrence. ( See Derdiarian v. Felix Contracting Corp., 51 NY2d at 315-16.) But, unlike the case where the defendant's negligence "merely furnished the occasion for an unrelated act to cause injuries not ordinarily anticipated" ( see id., at 316), Plaintiffs here contend that risk of a robbery occurring was "the very same risk" that rendered Defendants' acts negligent ( see id.).
Plaintiffs' expert states that "it is reasonably foreseeable that a robbery attempt would be made of such high value and highly visible material" as the Brinks "merchandise", and that "[t]he foreseeability of third party robbery is in fact the very reason for the precautions taken (and precautions which should have been taken in this case) by the courier Brinks, and those locations where Brinks makes deliveries." (Affidavit of Duane Atkisson, Exhibit A to Plaintiffs' Affirmation in Opposition, ¶¶ 4, 6.) Although highly conclusory, these opinions are to be contrasted with the assertions of Defendants' respective counsel on the subject, which are "without evidentiary value." ( See Zuckerman v. City of New York, 49 NY2d 557, 563.)
Generally, the determination of legal cause is one of fact ( see Derdiarian v. Felix Contracting Corp., 51 NY2d at 315), and the Court here cannot say that "the sequence of events leading to the plaintiff[s'] injuries was so extraordinary and far removed from any alleged breach of the defendant[s'] duty of care as to be unforeseeable as a matter of law" ( see Taylor v. Bedford Check Cashing Corp., 8 AD3d 657, 657-58 [2d Dept 2004].)
The moving Defendants having failed to make a prima facie showing sufficient to negate any of the crucial elements of Plaintiffs' respective causes of action for negligence, Brinks's motion and The Port Authority's cross-motion must be denied. Although it is, therefore, unnecessary to determine whether Plaintiffs have raised triable issues as to any of the elements ( see Winegrad v. New York University Medical Center, 64 NY2d 851, 853), it appears that they have done so on the elements of breach of duty and causation.
The question of duty is at the center of this case, particularly as to Brinks, who, unlike The Port Authority as landowner, owed Plaintiffs no general duty of care. The virtual absence from the record on this motion of an exploration of the various considerations that inform a court's determination of the existence of duty, as well as the apparent absence of any authority closely on point, leaves the Court highly reluctant to conclude that Plaintiffs have establish prima facie the existence of duty. Since the existence of duty is a question of law for the court ( see McNulty v. City of New York, 100 NY2d at 232), there can be no "triable issue" in the usual sense.
Although "multiple summary judgment motions in the same action are generally disfavored and should be discouraged in the absence of newly discovered evidence or other sufficient cause" ( Detko v. McDonald's Restaurants of New York, Inc., 198 AD2d 208, 209 [2d Dept 1993]), "sufficient cause" might be found here by a showing that a further motion "will further the ends of justice while eliminating an unnecessary burden on the resources of the courts" ( see id.). Such a further motion, which might be made by Plaintiffs or Defendants, would require a more complete factual record than is presented now, after additional discovery that avoids the difficulties that have apparently occurred to date. ( See Plaintiffs' Affirmation in Opposition, ¶¶ 12-14; Reply Affirmation in Further Support of Motion for Summary Judgment, ¶ 4 n1; see also CPLR 3212[d].)
Plaintiffs shall serve a copy of this order with Notice of Entry upon Defendants within 20 days after entry.