Summary
finding a question of fact as to foreseeability where crimes occurred in other buildings located in the same housing complex
Summary of this case from Bailey v. StateOpinion
Argued March 31, 1993
Decided May 6, 1993
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Joan B. Lobis, J.
Salzman, Ingber Winer, New York City (Norman E. Frowley of counsel), for appellants. Wilson, Elser, Moskowitz, Edelman Dicker, New York City (Anthony J. Mercorella, Harry P. Brett and Richard E. Lerner of counsel), for respondent.
The plaintiff was a resident of one of several apartment buildings in a housing complex when she was abducted and raped by an assailant inside her building. In opposing defendant's motion for summary judgment, plaintiff produced evidence of violent criminal activity in the housing complex and of dangerous conditions in the building where she resided. The Appellate Division granted defendant summary judgment, however, holding that plaintiff's allegations contained insufficient "experiential evidence" of criminal activity to raise a triable issue as to foreseeability of crime in her own building. We conclude that the evidence adduced by plaintiff was sufficient to raise a triable issue of foreseeability so as to require denial of summary judgment. There should, therefore, be a reversal.
I.
In September 1988, plaintiff, a 14-year-old resident of the Wagner Houses public housing project in upper Manhattan, was abducted in the lobby of her apartment building, taken to a utility room on the roof of the building and raped. In her deposition testimony, Housing Authority Police Officer Juliet Jackson stated that she had responded to several reports of forcible rape in the Wagner Houses, which "usually occur on the roof or roof landing" of the buildings, and to "20 or more" forcible robberies. Jackson could not recall in which buildings the crimes occurred, but did not exclude plaintiff's. In addition, Nelson Santoni, the assistant superintendent of the Wagner Houses testified that empty crack vials, needles, syringes and drug paraphernalia were found "[t]hroughout the entire development, roof landing, stairways, lobbies, corridors, basement, grounds, [and] outside ground areas". During the period he was at the Wagner Houses, he found "numerous drug addicts on the roof * * * [and that] they would either sleep on the roof landing, sleep on the stairway, [or] in the corridors. You find them all over the place." Intruders, according to Santoni, could be found "all over the place". Officer Jackson stated that when she found people on the roof, "[t]hey're usually doing drugs". Indeed, Jackson testified that she always approached the door to a roof with her gun drawn because "you don't know what is on the other side of that door".
Despite these conditions, as well as numerous complaints from tenants, neither the door to the lobby nor the door to the utility room on the roof was locked and no security personnel were stationed in the building. Carl Schwartz, the housing assistant of the Wagner Houses stated that "[a]s long as I have been in Wagner Houses, which is approximately a year, none of [the entrance doors] had locks". Officer Jackson said that it was known that the utility room on the roof of plaintiff's building had a mattress in it and that she had never seen a lock on the door to the room. When asked why these doors were kept open and were not locked, Jackson responded, "You have to ask management that".
A referendum vote had been held in 1988 pursuant to Multiple Dwelling Law § 50-a (3) regarding installation of self-closing, self-locking doors and an intercommunication system, but a majority of the tenants of the 22-building complex rejected the plan. No evidence was submitted, however, as to whether a majority of the tenants in plaintiff's building had rejected the proposed security measures.
Plaintiff commenced the present action alleging breach of a common-law duty to provide adequate security. Supreme Court denied defendant's motion and plaintiff's cross motion for summary judgment. On defendant's appeal, the Appellate Division reversed, holding that defendant had fully complied with its statutory obligations under the Multiple Dwelling Law and that plaintiff had failed to establish a common-law duty to provide greater security because there was no showing of a specific instance of crime occurring in plaintiff's building. The Court stated:
Although originally commenced against both the City of New York and the Housing Authority, action against the City was discontinued.
"A landlord does have a common law duty to provide security to its tenants. However, that duty rests upon the foreseeability of the particular danger which proximately causes the harm * * * A Housing Authority police officer did testify as to her responding to calls on forcible rapes and robberies at the Wagner Houses prior to this occasion, but could recall no specific instance at this particular apartment building. The Housing Authority is not an insurer of plaintiff's safety * * * Without experiential evidence indicating the reasonable foreseeability of such a danger, a landlord's duty, under common law standards, will require only `"minimal"' safety precautions" ( 182 A.D.2d 514, 515 [emphasis added]).
Since, according to the Appellate Division, defendant was relieved of any statutory obligation by the tenants' vote, that Court reversed and granted summary judgment dismissing the complaint.
II.
We discuss first defendant's contention that the requirements of the Multiple Dwelling Law supplant the common-law duty to provide adequate security and constitute the exclusive basis for liability. Multiple Dwelling Law § 50-a (3) mandates installation of self-closing, self-locking doors and an intercommunication system in buildings constructed before 1968 upon the request or consent of the tenants "occupying a majority of all the apartments within the structure comprising the multiple dwelling affected" (emphasis added). If a majority of tenants of the particular building reject the installation of such devices, then no installation is mandated by the statute. Contrary to defendant's claim, however, nothing in section 50-a (3) suggests that its terms supersede common-law duties and obligations such that a negative vote of the tenants relieves a landlord from any obligation to install security devices. Irrespective of the absence of a statutory obligation, the landlord remains subject to the common-law duty to take minimal precautions to protect tenants from foreseeable harm. A negative vote of the tenants in a particular building has no effect other than absolving the owner of the mandatory duty that Multiple Dwelling Law § 50-a (3) might otherwise impose.
In pertinent part, section 50-a (3) requires that every multiple dwelling: "shall be equipped with automatic self-closing and self-locking doors, which doors shall be kept locked except when an attendant shall actually be on duty, and with the intercommunication system described in paragraph two of this section, provided that tenants occupying a majority of all the apartments within the structure comprising the multiple dwelling affected request or consent in writing to the installation of such doors and intercommunication system * * * The terms under which such costs may be recovered shall be the same as those prescribed by the local city housing rent agency * * * Such costs shall not be deemed to be `rent' as that term is limited and defined in the contract."
Contrary to the Appellate Division's conclusion, the record in this case does not substantiate defendant's contention that a vote of the tenants in plaintiff's building did not trigger the obligation under Multiple Dwelling Law § 50-a (3). In its motion for summary judgment, the Housing Authority submitted a conclusory affidavit stating merely that the "tenants [of the Wagner Houses] rejected the installation of the aforementioned system by majority vote". The Housing Authority provided neither a tally of the votes nor the results pertaining specifically to plaintiff's building. Without evidence that a majority of the tenants in the particular structure where plaintiff resided had rejected the security measures, it cannot be established that the referendum did not impose a statutory duty to install security devices.
Turning to defendant's common-law duty, we reject the argument that plaintiff's allegations are insufficient to raise a triable issue as to the foreseeability of the violent assault on plaintiff merely because the housing police could not recall whether the violent criminal activity known to have occurred in the Wagner Houses took place inside the specific Wagner House structure where plaintiff resided. We have never adopted the restrictive rule urged by defendant and apparently embraced by the Appellate Division: that to establish the foreseeable danger from criminal activity necessary for liability, the operative proof must be limited to crimes actually occurring in the specific building where the attack took place (see, Miller v State of New York, 62 N.Y.2d 506; Nallan v Helmsley-Spear, Inc., 50 N.Y.2d 507; see generally, Prosser and Keeton, Torts § 63, at 442-443 [5th ed]; Annotation, Landlord's Obligation to Protect Tenant Against Criminal Activities of Third Persons, 43 ALR3d 331). In Nallan v Helmsley-Spear, Inc., which recognized the duty of landlords to take steps to minimize foreseeable danger from criminal acts, we cast foreseeability more generally — i.e., in terms of "past experience `that there is a likelihood of conduct on the part of third persons * * * which is likely to endanger the safety of the visitor'" (id., at 519).
There is no requirement in Nallan or Miller that the past experience relied on to establish foreseeability be of criminal activity at the exact location where plaintiff was harmed or that it be of the same type of criminal conduct to which plaintiff was subjected. Indeed, in Miller, the occurrence of criminal activity in plaintiff's college dormitory was held to be foreseeable, in part, because of different criminal conduct occurring in other dormitories on the same campus (see, Miller, supra, at 509). Whether knowledge of criminal activities occurring at various points within a unified public housing complex, such as Wagner Houses, can be sufficient to make injury to a person in one of the buildings foreseeable, must depend on the location, nature and extent of those previous criminal activities and their similarity, proximity or other relationship to the crime in question (see, e.g., Keenan v Dayton Beach Park No. 1 Corp., 175 A.D.2d 862; see also, Trentacost v Brussel, 82 N.J. 214, 412 A.2d 436; Czerwinski v Sunrise Point Condominium, 540 So.2d 199 [Fla App]; Paterson v Deeb, 472 So.2d 1210 [Fla App]; Bayshore Co. v Pruitt, 175 Ga. App. 679, 334 S.E.2d 213).
We conclude that enough has been shown to raise a triable issue as to foreseeability. Plaintiff's submissions showed, among other things, that there was evidence of drug-related criminal activity in her building and that vagrants and drug addicts readily gained access to and loitered in the corridors, stairwells and on the roof of plaintiff's building. The Housing Authority police, it appeared, had responded to numerous reports of forcible rapes and robberies in the Wagner Houses and Officer Jackson could not recall whether some of these violent crimes had occurred in plaintiffs building. The Housing Authority was aware that neither the doors to the lobbies of the buildings nor the doors to the utility rooms on the roofs were equipped with locks.
Contrary to the assertions of the dissent, our decision does not impose a "burden of impossible practical and functional dimensions" (see, dissenting opn, at 296). Nor does it extend the rule of Nallan and Miller (see, id., at 297). We hold merely that, in the circumstances, given the Authority's conceded failure to supply even the most rudimentary security — e.g., locks for the entrances — it was error to grant summary judgment on the question of foreseeability of danger from a violent crime (see, Phillips v Kantor Co., 31 N.Y.2d 307, 311 [summary judgment should be denied if there is a doubt as to whether there is a material, triable issue of fact]).
Accordingly, the order of the Appellate Division should be reversed, with costs, and defendant New York City Housing Authority's motion for summary judgment denied.
Chief Judge KAYE and Judges SIMONS, TITONE and SMITH concur with Judge HANCOCK, JR.; Judge BELLACOSA dissents and votes to affirm in a separate opinion.
Order reversed, etc.
I respectfully dissent and vote to affirm the Appellate Division order dismissing plaintiff's case. The ultimate effect of the Court's ruling will be to render the defendant, New York City Housing Authority, an unlimited insurer of the safety of its premises against urban crime. The legal, fiscal and policy consequences of such a rule, which imposes a sweeping negligence liability burden of impossible practical and functional dimensions, are unwarranted.
A landlord is generally not responsible for guaranteeing the safety of tenants against the criminal acts of third parties. However, where a private, commercial landlord has sufficient notice of relevant criminal activities bearing temporally and proximately on injuries to a plaintiff, this Court has recognized a narrow duty based on a traditional foreseeability nexus. The duty requires the landowner to take reasonable precautionary measures to protect against or minimize the foreseeable risk, or suffer exposure to a jury resolution for its negligence (Nallan v Helmsley-Spear, Inc., 50 N.Y.2d 507, 520).
However, this Court has demarcated the limits of this duty by requiring that the record must establish that an owner "knows or has reason to know from past experience `that there is a likelihood of conduct on the part of third persons * * * which is likely to endanger the safety of [a tenant or] visitor'" (id., at 519). Questions necessarily evolve as to what quantum and particularity of related past criminal activities must be advanced to entitle an injured party to a jury consideration of this otherwise expansive and largely uncontrollable absorption of liability for the actions of third parties. For example, must not the foreseeable wrongdoing be shown to be at least of a similar kind of criminal activity to that for which damages are sought? How frequently must the similar criminal activity have occurred and at what proximate range of location and time?
This case dramatically widens the dimensions of the applicable rule in virtually every component of the formerly limiting details. For practical purposes, the new rule eliminates the boundaries that courts precedentially promulgated in their efforts to impose reasonable and appropriate limits. Under this case, there are no real qualifying components left to the wide-ranging duty. Indeed, the Court fails to provide a discernible test or set of criteria in this regard to guide the lower courts for the trial of this case or future cases (see, majority opn, at 295). They will be at a loss, as I am, to predict the instruction that should be given the jurors for their definitive and reasonable guidance.
Up to now, the Appellate Division had at least started to develop a sensible and workable formulation. Drawing on its efforts, the rule we might have adopted to govern this case is that a landlord's duty to take reasonable precautionary measures against a risk of particularly foreseeable criminal conduct arises if there is temporally relevant, experiential evidence pointing to the likelihood of similar criminality in or at proximate locations to the premises at issue (see, Jacqueline S. v City of New York, 182 A.D.2d 514, 515; Iannelli v Powers, 114 A.D.2d 157, 162; Sherman v Concourse Realty Corp., 47 A.D.2d 134, 136). Such a rule would be fair and would help to pinpoint some boundaries on an otherwise virtually limitless landlord's duty set against overwhelming social ills and criminal activities in the urban universe.
It should not be overlooked that in swinging this kind of liability door wide open in this case, the Court is doing so for the first time against a public municipal landlord charged with maintaining numerous multibuilding public housing projects such as this one, which extends over a 27-acre site in Manhattan. In that context, the Appellate Division's balanced test seems more faithful to the limited rationale of Nallan v Helmsley-Spear, Inc. ( 50 N.Y.2d 507, supra), the case which inaugurated this kind of liability in New York against commercial owners. The instant case moves light years away from the limited holdings and facts of Nallan and Miller v State of New York ( 62 N.Y.2d 506).
For example, in Nallan, the plaintiff was shot by an unknown assailant as he was signing a guest registry in the unattended lobby of the defendant's office building, where there had been 107 reported crimes in the 21-month period immediately preceding the shooting. On that record, this Court carefully circumscribed that "a rational jury could have found from the history of criminal activity in the other parts of the building that a criminal incident in the lobby was a significant, foreseeable possibility" (Nallan, supra, at 520 [emphasis added]). In diametric contrast, the record in this summary judgment case is barren of any documentation of relevant or similar violent criminal activity in or near the particular public housing building where the crime occurred. We do not know when or where any of the few alleged prior incidents occurred. The testimony of Housing Authority Police Officer Juliet Jackson indicates that in her nine years as an officer at the Wagner Houses, she had responded on five occasions to reports of rape and on 20 occasions to reports of robbery. However, she did not state in which buildings of the vast 22-building Wagner Houses project these crimes had occurred or when they occurred in relation to the criminal act at issue here. She had no recollection of any criminal activity in the particular building at issue. Other than the supposition that rapes "usually occur on the roof or roof landing," the officer gave no evidence concerning the manner in which the previous crimes were perpetrated, a factor that should be of critical threshold weight in determining whether a duty rooted in foreseeability ought to be imposed here. There is no other evidence of violent crime offered by plaintiff to satisfy the limiting components of the Nallan rule, and I believe on this record and as a matter of policy we should uphold the grant of summary judgment dismissing plaintiff's case.
Miller v State of New York ( 62 N.Y.2d 506, supra) is also instructive. The plaintiff satisfied the required threshold showing by offering evidence that with respect to her own dormitory,
"there had been reports to campus security of men being present in the women's bathroom. Claimant herself had complained twice to the Assistant Quad Manager of her dormitory area about nonresidents loitering in the dormitory lounges and hallways when they were not accompanied by resident students" (Miller, id., at 509).
Furthermore, in Miller, all of the dormitory doors were equipped with locks which the State, as a matter of policy, did not lock. As this Court noted, "the act complained of under the landlord theory of liability was the failure to lock the outer doors of the dormitory" (id., at 513), and the duty which was breached was the "duty to take the rather minimal security measure of keeping the dormitory doors locked" (id., at 514). Here, in contrast, self-locking entrance doors had never been installed on plaintiff's building or in any of 22 buildings of the sprawling Wagner Houses Project.
Everyone shares the hope and desire that all feasible measures be taken to prevent the type of heinous crime against an innocent youngster that underlies this action. However, creating a cascade of public liability of the type imposed here under these circumstances is particularly ill-suited and illfated to redressing endemic urban ills and crimes. This ancient tort theory and common-law method of spreading risk and deterring negligent conduct does not work here. It is more likely in these circumstances instead to divert limited public funds, that might be invested in some safety measures and better public housing, into the payment of escalating tort settlements and judgments against "deep pocket" public landlords. This consequence will flow merely because they were 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.