Summary
noting that criminal activity relied upon to establish foreseeability does not need to have occurred on the same premises nor does it need to be the same type of criminal conduct
Summary of this case from Richardson v. Quiktrip Corp.Opinion
Argued April 29, 1999
August 23, 1999
APPEAL by the defendants, in an action, inter alia, to recover damages for personal injuries, from an order of the Supreme Court (John A. Milano, J.).
Sedgwick, Detert, Moran Arnold, New York, N.Y. (Kenneth N. Rashbaum and Howard R. Cohen of counsel), for appellants.
Worby, Borowick Groner, LLP, White Plains, N.Y. (Richard Vecchio and Alicia Sandberg of counsel), for respondents.
DAVID S. RITTER, J.P., FRED T. SANTUCCI, DANIEL F. LUCIANO, HOWARD MILLER, JJ.
OPINION ORDER
The issue presented is whether the defendants' failure to have provided a 24-hour-a-day doorman at a residential apartment building constituted a breach of their duty to provide minimal precautions against the foreseeable criminal acts of third parties. We find that it did not.
This appeal concerns the tragic shooting death of Arkady Novikova while he and his wife were visiting two friends who were tenants in a condominium apartment building owned and/or operated by the defendants. The decedent, his wife, and their friends returned to the building one night well after midnight, at approximately 2:30 A.M. The decedent's wife and the two friends entered the vestibule of the building and were in the process of opening the inner locked doors when a man appeared from behind the adjacent bushes and attempted to steal the wife's purse. The decedent attempted to ward off his wife's attacker, but was shot and killed during the ensuing struggle.
Thereafter, the plaintiffs, as representatives of the decedent's estate, commenced this action seeking damages arising from negligence. The plaintiffs alleged that the defendants breached their duty to take minimal precautions against the foreseeable criminal acts of third parties because the defendants failed to provide a 24-hour-a-day doorman. After issue was joined and various disclosure completed, the defendants moved for summary judgment dismissing the complaint, arguing that the security measures provided were sufficient to discharge any duty owed the decedent. In the order appealed from, the Supreme Court denied the defendants' motion, finding that triable issues of fact existed. We now reverse the order and grant summary judgment to the defendants.
Under the common law, the owner or possessor of property has the general duty to take reasonable measures to maintain his or her property in a reasonably safe condition ( see, Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507; Basso v. Miller, 40 N.Y.2d 233). In Nallan v. Helmsley-Spear, Inc. (supra), the Court of Appeals first addressed the duty of an owner or possessor of property to take precautions against the criminal acts of third parties. The Nallan court, citing to the Restatement, Torts 2d, § 344, which defined the liability of the owner of business premises when there is a foreseeable danger of harm to visitors from the criminal acts of third parties, held that a "natural corollary" of the above-stated general common-law duty to maintain property in a reasonably safe condition was the "obligation to take reasonable precautionary measures to minimize the risk [of criminal acts] and make the premises safe for the visiting public" ( Nallan v. Helmsley-Spear, Inc., supra, at 520). In Miller v. State of New York ( 62 N.Y.2d 506), the court distilled the holding of Nallan as imposing on the owner or possessor of land "a duty to maintain minimal security measures, related to a specific building itself, in the face of foreseeable criminal intrusion upon tenants" ( Miller v. State of New York, supra, at 513). In so holding, the Miller court cited several lower court cases concerning rudimentary security measures such as the provision of proper illumination ( Loeser v. Nathan Hale Gardens, 73 A.D.2d 187) and working doors and locks ( Sherman v. Concourse Realty Corp., 47 A.D.2d 134; Skaria v. State of New York, 110 Misc.2d 711). In recent cases, the Court of Appeals formulated the relevant standard as being the "`common-law duty to take minimal precautions to protect tenants from foreseeable harm', including a third party's foreseeable criminal conduct" ( Burgos v. Aqueduct Realty Corp., 92 N.Y.2d 544, 548, quoting Jacqueline S. v. City of New York, 81 N.Y.2d 288, 293-294). The duty extends, as here, to a guest of a tenant ( see, Waters v. New York City Hous. Auth., 69 N.Y.2d 225).
In support of their motion for summary judgment, the defendants noted that both the outside of the building and entrance vestibule were lighted, that the entrance was equipped with an inner door lock, an intercom and buzzer system and a surveillance camera, and that there was a doorman on duty from 4:00 P.M. to 12:00 A.M. daily. These undisputed facts were sufficient to demonstrate a prima facie case that the defendants satisfied their duty to provide minimal precautions against the foreseeable criminal acts of third parties and to warrant judgment to the defendants as a matter of law ( see, e.g., Roberts v. Jam Realty Co., 260 A.D.2d 230 [1st Dept., Apr. 15, 1999]; Tarter v. Schildkraut, 151 A.D.2d 414).
In opposition to the defendants' prima facie case, the plaintiffs proffered the affidavit of a purported expert in premises security, Dennis McCormack, a former police officer. McCormack opined that, based on, inter alia, police reports of 21 crimes within the six months preceding the crime at issue that occurred in and in the "immediate vicinity" of the subject building, the presence of a 24-hour-a-day doorman would have been a "reasonable security measure". We hold that McCormack's affidavit and the appended police reports were insufficient to raise a triable issue of fact as to whether the defendants breached their duty to provide minimal precautions against the foreseeable criminal acts of third parties.
As a threshold issue, the plaintiffs presented no evidence that the defendants knew or should have known of the criminal conduct set forth in the reports, one prerequisite to establishing foreseeability ( see, Francis v. Ocean Vil. Apts., 222 A.D.2d 551). Indeed, the plaintiffs did not identify the dimensions of the area they describe as being in the "immediate vicinity" of the subject premises, or even whether it included one or more blocks. To the contrary, for example, the Jacqueline S. case (supra) concerned an identified location, namely multiple buildings in a single unified, albeit expansive, housing project.
In any event, even if notice had been established, the plaintiffs failed to raise a triable issue of fact that the crime at issue, or one of similar nature, was foreseeable. The Court of Appeals recently held that there is no requirement "that the past experience relied on to establish foreseeability be of criminal activity at the exact location where the plaintiff was harmed or that it be of the same type of criminal conduct to which plaintiff was subjected", or that "the operative proof must be limited to crimes actually occurring in the specific building where the attack took place" ( Jacqueline S. v. City of New York, supra, at 294). However, this does not mean that the criminal activity relied upon by the plaintiffs to support their claim of foreseeability need not be relevant to predicting the crime in question. As the endless supply of crime statistics attest, crime is a fact of life and is foreseeable ( see, e.g., Jacqueline S. v. City of New York, supra, at 299 [Bellacosa, J., dissenting]; Waters v. New York City Hous. Auth., 69 N.Y.2d 225, supra). Criminal activity is more frequent in our urban centers, although there are marked differences between neighborhoods ( see, New York State Division of Criminal Justice Services, 1997 Crime and Justice Annual Report). However, the courts have repeatedly held that ambient neighborhood crime alone is insufficient to establish foreseeability ( see, Evans v. 141 Condominium Corp., 258 A.D.2d 293 [1st Dept., Feb. 9, 1999]; Todorovich v. Columbia Univ., 245 A.D.2d 45; Levine v. Fifth Hous. Co., 242 A.D.2d 564; Mendez v. 441 Ocean Ave. Assocs., 234 A.D.2d 524; Rozhik v. 1600 Ocean Parkway Assocs., 208 A.D.2d 913). Rather, to establish foreseeability, 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. Here, this was not done. Of the 21 reported crimes relied upon by the plaintiffs, only three are reported as having occurred at or in front of the subject premises — two apartment burglaries and one theft of a car. None of these three crimes are similar to the crime at issue. Indeed, the burglaries do not even necessarily implicate street crime or a criminal intruder, as these crimes might have been committed by a fellow tenant, a guest, or a service provider. Of the remaining reported crimes, the vast majority concern the theft of or vandalism to cars, or burglaries. Again, none of these are similar to the crime at issue. Of the three crimes that were against the person, all occurred on the street during hours when the defendants' doorman would have otherwise been on duty, and none concerned an ambush-style robbery as occurred here. Finally, concerning the proximity of these other reported crimes to the subject building, as noted supra, the plaintiffs did not identify the dimensions of the area at issue or where, within such an area, the various crimes occurred. In sum, the proffered police reports provide no basis for singling out the subject premises as one more likely than another to be the situs of random criminal violence of the type at issue. Accordingly, the plaintiffs failed to raise a triable issue of fact that the crime at issue was foreseeable.
Moreover, the plaintiffs failed to raise a triable issue of fact that the defendants breached their duty to provide minimal precautions against the foreseeable criminal acts of third parties by having failed to have provided a 24-hour-a-day doorman. In Nallan v. Helmsley-Spear, Inc. ( 50 N.Y.2d 507, supra), the Court of Appeals held that "[w]hat safety precautions may reasonably be required of a landowner is almost always a question of fact for the jury. Conceivably, in assessing the reasonableness of the landowners conduct, the jury might take into account such variables as the seriousness of the risk and the cost of the various available safety measures" ( Nallan v. Helmsley-Spear, Inc., supra rat 520, n 8). However, despite the apparent flexibility of this standard, it is not without limit. Rather, it has been repeatedly held that an owner or possessor of property is not the insurer of a visitor's safety ( see, Nallan v. Helmsley-Spear, Inc., supra). In keeping with the trend first identified in Miller v. State of New York ( 62 N.Y.2d 506, supra), the premises liability cases that have considered the duty to provide a rudimentary security precaution such as a working door lock are legion ( see, e.g., Burgos v. Aqueduct Realty Corp., 92 N.Y.2d 544; Jacqueline S. v. City of New York, supra; Miller v. State of New York, supra; Mkrtchyan v. 61st Woodside Assocs., 209 A.D.2d 490: Tarter v. Schildkraut, 151 A.D.2d 414), while the cases that have considered the duty to provide a doorman or lobby attendant are few ( see, e.g., Nallan v. Helmsley-Spear, Inc., supra; Ianelli v. Powers, 114 A.D.2d 157). Further, in the main, cases addressing doormen or attendants involve either commercial buildings or allegations that a landlord voluntarily assumed the duty to provide doorman service by agreeing with the tenants to provide the same and then negligently failed to discharge such duty ( see, e.g., Nallan v. Helmsley-Spear, Inc., supra; Evans v. 141 Condominium Corp., 258 A.D.2d 293 [1st Dept., Feb. 9, 1999]; Four Aces Jewelry Corp. v. Smith, 257 A.D.2d 510 [1st Dept., Jan. 26, 1999]; Ianelli v. Powers, supra; cf, Garrett v. Twin Parks Northeast Site 2 Houses, Inc., 256 A.D.2d 224 [1st Dept., Dec. 29, 1998]; Gilmartin v. Helmsley-Spear, Inc., 162 A.D.2d 275). We find no controlling authority which has held that the failure to provide a 24-hour-a-day doorman for a residential building has constituted a failure to provide "minimal precautions" against the foreseeable criminal acts of third parties. Indeed, to hold the contrary, and to impose upon the owner or possessor of property the duty to provide such a costly and significant precaution against crime, would be to give flesh to Judge Bellacosa's stated concern against the imposition of a "sweeping negligence liability burden of impossible practical and functional dimensions" against landlords, especially public landlords, who are "impotent against the tide of criminal activity occurring just about anywhere in their vast premises and anywhere in or near vaster still New York City" ( Jacqueline S. v. City of New York, 81 N.Y.2d 288, 296-299, supra [Bellacosa, J., dissenting]). Accordingly, we find that the defendants' failure to have provided a 24-hour-a-day doorman was not a breach of their duty to have provided minimal precautions against the foreseeable criminal acts of third parties.
Finally, we note, this is not a case involving a criminal act committed within a building by an intruder who has gained entrance due to a lack of minimal security measures. Rather, the crime at issue occurred in the entrance vestibule to the building, which is by its nature necessarily accessible to the public. This implicates various limitations on the duty and ability to provide security precautions recognized in our earlier decision in Daly v. City of New York ( 227 A.D.2d 432). Daly concerned the tragic death of a bystander during a shoot-out between several teenagers, one of whom was alleged to be a tenant, in the outdoor common area of a public housing project. In dismissing the action against the owner of the premises, the New York City Housing Authority (hereinafter NYCHA), for damages arising from the alleged failure to have provided minimal precautions against the foreseeable criminal acts of third parties, this court held:
"This duty is premised on the landlowner's control over the premises * * * Contrary to the plaintiff's contentions, however, under the circumstances of this case, NYCHA had no reasonable opportunity or ability to control the conduct of the perpetrators * * * Moreover, because the tragic shooting death occurred in the outdoor common area of the housing project NYCHA had no duty to protect the decedent. To hold otherwise would be to expose NYCHA and other similarly situated landowners to a virtual limitless liability'".
( Daly v. City of New York, supra, at 433, quoting Levya v. Riverbay Corp., 206 A.D.2d 150, 155; see also, Roberts v. Jam Realty Co., 260 A.D.2d 230 [1st Dept., Apr. 15, 1999]; Evans v. 141 Condominium Corp., supra).
Accordingly, the order is reversed, the defendants' motion for summary judgment dismissing the complaint is granted, and the complaint is dismissed.
SANTUCCI, LUCIANO, and H. MILLER, JJ., concur.
ORDERED that the order is reversed, on the law, the motion is granted, and the complaint is dismissed.