Opinion
25351/03.
Decided March 7, 2006.
Appearances of Counsel: Plaintiffs' Counsel: James Newman, Bronx, NY.
Defendant's Counsel: Ptashnik Assoc, NY, NY.
Motion by Defendant, REGEIS CARE CENTER, LLC, referred to herein as REGEIS) for summary judgment in its favor, dismissing the Plaintiffs' Complaint, is granted. It is noted that Plaintiffs' Counsel fails to cite to any case law, whatsoever, to support their position.
The Incident :
This is an action to recover for alleged personal injuries suffered by the Plaintiff, NANCY PIAZZA, (referred to herein as NANCY) during an altercation with her own brother, nonparty Oswaldo Ocasio, (referred to herein as Wally), which occurred at Defendant's premises. Defendant REGEIS is a nursing home where Luz Ocasio the mother of NANCY and Wally, (referred to herein as Luz) was a resident. The incident occurred while NANCY and Wally were visiting their mother, in a public recreation room, on September 17, 2003, at about 6:45 P.M. Plaintiff, SAUL PIAZZA, is NANCY's husband, and alleges a derivative cause of action for loss of society.
In her deposition, NANCY alleges that the incident happened in the recreation room, not in her mother's room, as Plaintiffs' Counsel suggests. ( See NANCY's EBT, p. 69).
NANCY admits that she and Wally had a "back and forth" verbal disagreement, followed by a physical altercation which NANCY describes as follows: "He put all his body weight against me and shoved me as far back as he could and then flung me towards the table . . . I swivelled and turned a few times, tried to break my fall, and it was too late. I just slammed my full body, and my face broke my fall . . . on the wooden table." ( See NANCY PIAZZA's EBT, p. 59, 62-64).
Wally describes the verbal disagreement, and ensuing accident, as follows: "when I went there, . . . she said Shut up', and one thing led to another. I cursed at her and she said something to me. . . . She came toward me . . . Rushing to me, holding me. As she held me, I pushed her to the side, . . . and she grabbed me. . . . I guess when I pushed her to the side, she slipped on the floor. You know, she had heels. . . . She slide on it [the floor] and she fall on the table, grabbing the table, falling on it. She grabbed it, the table that they serve food, and she fell over it, and hit her head." ( See Oswaldo [Wally] Ocasio's EBT, p. 14, 16).
Their mother, Luz, relates that her 2 children were arguing, then NANCY grabbed Wally, and Wally pushed NANCY, who fell and hit her head — while Luz was telling them to "stop". ( See Luz Ocasio's EBT, p. 14-15).
Legal Standards:
— — Duty/ Breach
"A possessor of land, whether he be a landowner or leaseholder, is not an insurer of the visitor's safety." Nallan v. Helmsley-Spear, 50 NY2d 507, 519 (1980). "The possessor of land is under a common-law duty to maintain the public areas of his property in a reasonably safe condition for those who use it." Leyva v. Riverbay, 206 AD2d 150 (1st Dept. 1994), citing Basso v. Miller, 40 NY2d 233, 241.
It is well-established that a possessor of land has the " duty to take minimal security precautions against reasonably foreseeable criminal acts by third parties." James v. Jamie Towers Housing, 294 AD2d 268, 272 (1st Dept. 2002). [emphasis added]
"This duty arises only when such party knows or has reason to know that there is a likelihood that third persons may endanger the safety of those lawfully on the premises [citations omitted], as where the landlord [or permittee] is aware of prior criminal activity on the premises.' [citation omitted] " Florman v. City of NY, 293 AD2d 120, 124 (1st Dept. 2002).
Foreseeability . . . determines the scope of the duty. . . . In cases arising out of injuries sustained on another's property, the scope of the possessor's duty is defined by past experience and the "likelihood of conduct on the part of third persons . . . which is likely to endanger the safety of the visitor" (Nallan, 50 NY2d at 519, quoting Restatement [2nd] of Torts § 344, Comment f). [emphasis added]
Maheshwari v. City of New York , 2 NY3d 288, 294 (2004). In Maheshwari, the Plaintiff, (who was distributing pamphlets on behalf of Krishna Consciousness), was beaten by 4 unidentified young men in a parking lot at a Lollapalooza music festival held on premises owned by the City of New York. In that case, the Court of Appeals held that Defendants (the City and the concert producer), had not breached their duty to provide adequate security, because "the attack was not a foreseeable result of any security breach." [emphasis added] Maheshwari v. City of NY, 2 NY3d 288, 294 (2004).
"Delsener [the concert producer, had] entered into a stadium use agreement with the City, by which Delsener was to provide supervision of the parking areas for the Event,' including sufficient trained security personnel as may be necessary' to police the stadium and additional facilities, ensure the orderly entrance and exit of patrons, manage the parking and traffic flow, and safeguard the property. . . . The participants agreed that the City, through the Police Department and the Parks Department Parks Enforcement Police (PEP), would provide security in the parking areas." Maheshwari v. City of NY, 2 NY3d 288, 291-292 (2004).
In analyzing whether the injury was the foreseeable result of a security breach, the Court of Appeals considered such factors as the "types of crimes committed at past Lollapalooza concerts" (which were "of a lesser degree than a criminal assault, and thus would not lead defendants to predict that Plaintiff's attack would occur or could be prevented"); that such an attack was not a "predictable result of the gathering of a large group of people" at such a concert; and the reasonable measures that Defendants took to deal with the issues which arose at the concert. Maheshwari, p. 294. "In assessing the reasonableness of the landowner's conduct, . . . the seriousness of the risk" is taken into account. Novikova v. Greenbriar Owners, 258 AD2d 149 (2d Dept. 1999).
In the case at bar, in determining whether the injury was a foreseeable result of any security breach, we consider such factors as the types of activities that Wally committed in the past; whether the harm that befell NANCY was a predictable result of her gathering with her brother, and mother, in the nursing home's recreation room; and the security measures taken by REGEIS to deal with issues which arose at the nursing home.
As far as Wally's prior activities, NANCY admitted that Wally had never laid his hands on their mother; and that Wally had never laid his hands on NANCY, (except for this alleged incident). NANCY conceded that she never even told Mr. Levine that Wally had been physically abusive, but only that he had been verbally menacing. ( See NANCY's EBT, p. 31, 34, 40-44, 55). Moreover, NANCY admitted that she never, actually, saw Wally carry a gun, or bullets, or a knife. ( See NANCY's EBT, p. 44-46).
Essentially, this is consistent with the sworn Affidavit of Mr. Levine, who was the Assistant Administrator Director of Social Service for REGEIS. Mr. Levine explains that he was never told that Wally had any "violent propensities", or that Wally posed a "physical danger". ( See Levine's Affidavit, at Defendant's Exhibit "J").
Luz's testimony was also consistent, since she said that Wally was never physically violent; that Wally never threatened Luz with harm; and that she never had any trouble with Wally. Luz never told anyone that Wally was dangerous; and Luz never saw Wally carry any weapons. Luz stated that Wally had never before pushed NANCY, or been physically violent with NANCY. ( See Luz Ocasio's EBT, p. 18-21, 23).
Also, it is significant that Wally had visited his mother everyday prior to, and after, the alleged incident, and had never exhibited any aggressive behavior toward his mother. ( See Levine's Affidavit, at Defendant's Exhibit "J").
Mr. Levine confirmed that, "prior to the alleged incident, the plaintiffs visited Luz Ocasio no more than a couple of times, and after the alleged incident, did not visit at all." ( See Levine's Affidavit, at Defendant's Exhibit "J"). Even at the present time, Wally visits his mother every day; but NANCY does not visit Luz. ( See Luz Ocasio's EBT, p. 22).
Where, as here, the record showed there was "no credible evidence of violent tendencies toward others" by the perpetrator of a crime, the Defendant had "reasonably met its security obligations in general, as well as with individual regard to" the perpetrator of the crime. Johnson v. New York City Health and Hospitals Corp., 246 AD2d 88, 94-95 (1st Dept. 1998). The Johnson case was a "wrongful death action seeking damages for defendant [hospital]'s negligence in failing to provide minimal security" to protect a doctor who was murdered and sexually assaulted in her office at the hospital by a homeless intruder (Steven Smith) who had recently been a patient at the hospital. Johnson, p. 89.
In the Johnson case, Mr. Smith's hospital records and the security log "indicated only tendencies toward dubious threats of suicide, drug abuse, elopement from his assigned room, petty theft and trespass." [emphasis added] Johnson, p. 95. Under these circumstances, the Court held that Defendant had fulfilled its legal obligations for providing security, given the foreseeable harm.
In the case at bar, NANCY had merely conveyed that her mother, (who was allegedly an elderly woman with some maladies), was vulnerable to being verbally confronted by Wally if left alone in her room when Wally visited ( See NANCY's EBT, p. 51; NANCY's Affidavit, p. 2). In this regard, allegedly, NANCY had told Mr. Levine that her mother, Luz: "was confused and had been continually harassed, threatened, abused, pushed, and agitated by my brother Oswaldo (Wally) Ocasio. . . . He had a serious drug habit and has previously verbally assaulted me and my mother and threatened physical harm." [emphasis added] ( See NANCY's Affidavit, p. 2). NANCY explained, at her deposition, that, when she alleged that Wally was "basically pushing her" mother, she did not mean it in a physical way, but that: "He would get in her face, scream at her, yell at her." ( See NANCY's EBT, p. 31).
It is noted that NANCY's Affidavit, as presented, consists of three (3) unnumbered pages, where some words are missing. At least, the words at the bottom of page 2 do not connect with the words at the top of page 3.
Plaintiff does not submit any medical evidence to this Court regarding her mother's alleged "confusion."
NANCY had not conveyed that security was necessary to keep herself (an adult woman in a good state of health) physically safe while she was with Wally, and others, in the nursing home's public recreation room.
Moreover, "at no time, during her approximate thirty-minute visit with her mother, on the date of the alleged incident and while Oswaldo Ocasio was present, had NANCY ever expressed that she was uncomfortable with her brother's presence." ( See Levine's Affidavit, at Defendant's Exhibit "J"). It is noted that, for example, in the 6-month period before the incident, there were no complaints by visitors regarding other visitors ( See Geoghegan's EBT, p. 53).
On this point, it is noted that, initially, upon seeing her brother Wally, by all accounts, NANCY chose to engage in a verbal argument with him. She did not choose to either prior to, or subsequent to, Wally's arrival call the nursing home's administrator, security, or the police. Although they were in a public recreation room, (where employees and other residents also gathered), she did not choose to ask for assistance by speaking-up, or by using the cell phone which she carried with her. This was so even though she expected Wally to show up, since, earlier that day, she and Wally had argued on the telephone, and he had "threatened to show up and remove" their mother from the nursing home. ( See NANCY's EBT, p. 63-64). This shows that not even NANCY had predicted that this argument would result in the shove that caused her to fall and hit her head.
Under these circumstance, since it was not even foreseeable to NANCY that she would be caused to be physically harmed, it could not have been foreseeable to Defendant REGEIS.
In the case at bar, as in Maheshwari, "it is difficult to understand what measures could have been undertaken to prevent plaintiff's injury except presumably to have had a security officer posted at the precise location where the incident took place or wherever [people] were gathered, surely an unreasonable burden". [emphasis added] Maheshwari v. City of NY, 2 NY3d 288, 295 (2004), quoting from Floram v. City of NY, 293 AD2d 120, 127(1st Dept. 2002).
It is Plaintiff's contention that Mr. Levine had reassured her that "he would have security present at all times to keep her [mother] safe". (See NANCY's Affidavit, p. 2). Even if true, there is no full explanation as to what this means. It does not necessarily mean that a security guard would actually accompany Wally wherever he went even into the public recreations room where NANCY was also present as Plaintiffs' Counsel now wants us to assume. According to Defendant, if a dispute arose, Defendant's Director of Building Services, Mr. Geoghegan, would be paged by the nurse. Defendant's receptionist was stationed at the front desk, prepared to call 911, if necessary. ( See Geoghegan's EBT, p. 11, 48-49).
NANCY was aware that her mother wanted to see Wally, and that REGEIS would allow Wally to visit her. ( See NANCY's EBT, p. 51). ( See Levine's Affidavit, at Defendant's Exhibit "J", ¶ 8). Residents enjoy the right to have their family members visit them. ( See Geoghegan's EBT, p. 80).
REGEIS denies that it had "voluntarily assumed any such obligation" to provide a higher level of security. James v. Jamie Towers Housing Co., 294 AD2d 268 (1st Dept. 2002). ( See Mr. Levine's Affidavit, at Defendant's Exhibit "J").
However, even if it is true that Defendant had voluntarily assumed such an obligation, in order to prevail, plaintiff would have to:
"show not only that [defendants] undertook to provide a service and did so negligently, but also that its conduct in undertaking the service somehow placed [plaintiff] in a more vulnerable position" than if defendants had never assumed this obligation in the first place ( Nallan v Helmsley-Spear, Inc., supra, at 522). In other words, defendants could only be held liable if it was foreseeable that persons like plaintiff would be "lulled into a false sense of security" by the expectation of the guard's presence, and therefore would take less precautions when entering the building ( Nallan v Helmsley-Spear, Inc., supra, at 522). Evans v. 141 Condo. Corp., 258 AD2d 293, 295-296 (1st Dept. 1999). In the Evans case, Plaintiff had failed to raise an issue of fact as to "whether she relied to her detriment on the belief that a doorman would be present." Evans, p. 296. Plaintiff Evans, in her deposition testimony, had "indicated she was aware of this pre-existing policy" of leaving the lobby unattended between 8:00 and 9:00 P.M.; the "doorman's hour-long absence was authorized as part of his shift." Evans, p. 295-296.
Similarly, in the case at bar, NANCY was never lulled into any false sense of security. On the contrary, she states that she had conversations with Mr. Levine, "reiterating the fact that . . . I didn't trust the laid back security system that they had." ( See NANCY's EBT, p. 54-55). NANCY states: "I was concerned because I knew that my brother could easily slip in like that." ( See NANCY's EBT, p. 52).
The absence of a security guard actually accompanying Wally was not "unexpected". In fact, the security measures in place were that: Defendant's assigned a receptionist, to the front desk, 24 hours a day. All visitors entered through the front, where the receptionist maintained the book in which visitors signed in. At the front desk, the receptionist monitored the outside grounds via a camera system. The exit doors were locked and had fire alarms. ( See Geoghegan's EBT, p. 11, 35, 49).
The possessor of land "is obligated to provide reasonable security measures, not optimal nor the most advanced security system available." Leyva v. Riverbay, 206 AD2d 150, 155 (1st Dept. 1994). The law does not require that Defendant's "security system be flawless." Johnson, supra, p. 96-7.
— — Proximate Cause
However, even assuming that there was a lapse of reasonable security, NANCY's injuries were not proximately caused by any such lapse. As the Court succinctly stated in Maheshwari:
even assuming a lapse in the security . . ., plaintiff's injuries were not the result of any such lapse, but were caused by an independent, intervening criminal act. To establish a prima facie case of proximate cause , a plaintiff must show "that the defendant's negligence was a substantial cause of the events which produced the injury" ( Derdiarian v Felix Contracting Corp., 51 NY2d 308, 315, 414 NE2d 666, 434 NYS2d 166 [1980]). "Where the acts of a third person intervene between the defendant's conduct and the plaintiff's injury, the causal connection is not automatically severed. In such a case, liability turns on whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence" (id.). An intervening act may break the causal nexus when it is "extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct" (id.). Here, as an independent act far removed from defendants' conduct, the criminal assault broke the causal nexus. The attack was extraordinary and not foreseeable or preventable in the normal course of events. [emphasis added]
Maheshwari v. City of N Y, 2 NY3d 288, 295 (2004).
"Even assuming a lapse in the security afforded . . ., plaintiff's injuries are the result of . . . independent, intervening act[s] . . . that did not flow from any lack of security." Florman v. City of NY, 293 AD2d 120 (1st Dept. 2002).
The incident at issue NANCY's being injured when she hit her head, after she fell, upon being shoved while engaging in an argument with her brother "was an unforeseeable, intervening force which severed the causal nexus between the alleged negligence of [defendant] and the complained-of injury." Bruckeridge v. Broadie, 5 AD3d 298, 300 (1st Dept. 2004).
Accordingly, Defendant REGEIS' Motion is granted; and this case is dismissed.
This constitutes the decision and order of this Court.