By Andrea M. Alonso and Kevin G. Faley

September 17, 2021

Two recent cases in the First and Second Department examine landowner liability when criminal acts occur on their property. Both incidents were premeditated and targeted and, as far as the landowner knew, were spontaneous and unexpected. The Courts took markedly different approaches in analyzing precedent and arriving at their holdings. 
Landowners have a common-law duty to take minimal precautions to mitigate reasonably foreseeable third party criminal acts on their premises. Scurry v. New York City Hous. Auth., 92 A.D.3d 821, 823 (2d. Dept. 2021). Although landowners are not insurers of their guest’s safety, they are liable for claims if they are negligent in their duty to protect them. Doe v. Turnmill LLC, 193 A.D.3d 618 (2021). Plaintiffs need to establish that the criminal events were foreseeable and that the landowner had prior notice of the criminal conduct.  Courts examine several factors such as: (1) previous criminal conduct; (2) its similarity to the occurrence at issue, and; (3) the proximity of previous crimes to the owner’s premise. Gentile v. Town & Vill. of Harrison, 137 A.D.3d 971, 972 (2d. Dept. 2016). Ambient neighborhood crime alone is insufficient to establish landowner foreseeability of criminal conduct and plaintiffs cannot solely rely on crime statistics to establish landowner notice of prior criminal activity. Muzafarov v. Casallas-Gonzalez, 164 A.D.3d 680, 681 (2018).
However, landowners were not liable for third party criminal conduct on their premises if the attacks were unexpected, spontaneous, premeditated, and/or targeted. This “spontaneity” standard holds that “willful criminal acts that are unforeseeable as a matter of law break the causal connection between criminal conduct and landowner negligence.” Nossoughi v. Ramapo Cent. Sch. Dist., 287 A.D.2d 444, 444(2001). These two recent decisions reveal that the First and Second Departments are now divided in the interpretation of this long-standing precedent. 

Second Department Holding

The Court in Scurry v. New York City Hous. Auth., 193 A.D.3d 1, 5 (2nd Dept. 2021) discarded the well-established spontaneity standard. The Court held that the test in determining landowner liability should not focus on the premeditation of the crime. The Court applied a test that determined whether the negligent maintenance of the premise served merely as a concurrent contributory factor of the criminal occurrence. 
In Scurry, a tenant and his family were attacked by his mother’s ex-fiancé. Plaintiff and his family were subjected to stalking, verbal abuse and murder threats from the assailant for over a year.  Plaintiff and his family resided with the assailant for a six month period approximately two years before the assault in question. After incidents of excessive drinking, domestic violence, and possessive behavior, plaintiff’s mother ended her relationship with the assailant and moved her family to the premises where the assault occurred.  The assailant continued to follow the plaintiff's family and threaten them verbally.  In multiple instances leading up to the assault, the assailant left angry voicemails, including threats of murder and suicide. In the summer before the October attack, the assailant made harassing phone calls to the plaintiff’s mother at work and once attacked and choked her at her workplace. 

On the day of the assault, the assailant entered the plaintiff's apartment building by pushing through the broken front door. At approximately 10:25 pm on the night in question, the assailant confronted the plaintiff's mother in the building hallway while she was leaving her apartment to go to work. He restrained the plaintiff’s mother, choked her, then doused her with a flammable liquid. Plaintiff ran out to the hallway upon hearing his mother’s screams. The plaintiff then pushed the assailant off of his mother, which prompted the assailant to ignite the flammable liquid, setting himself, the plaintiff, and the plaintiff’s mother on fire. Both the assailant and the plaintiff’s mother died from the attack, The plaintiff underwent fifteen months of hospitalization and two years of rehabilitation. 

The plaintiff sued the landowner for negligence, negligent infliction of emotional distress, and wrongful death. The plaintiff presented evidence that the building’s door lock had been broken and that “the pieces would hang from the door[,]” at the time of the incident. The landowner moved for summary judgment dismissing the complaint. The landowner relied on depositions of workers on the premises who had described daily procedures and procured work tickets for necessary repairs to the property. The landowner argued that the relationship between plaintiff and assailant severed the causal connection between any landowner negligence and the criminal attack because the attack was premeditated and targeted.

While the Court acknowledged that it had always held that premeditated or targeted attacks severed the causal nexus between the criminal act and the landowner’s duty to protect lawful guests, the Court broadened the exception and redefined the spontaneity standard. The Court determined that there is no dichotomy between random and targeted attacks.  The Court argued that there are multiple proximate causes of a criminal occurrence and liability turns on the facts of each case. The Court held that the negligently maintained front door played a concurrent role in the assailant’s criminal conduct on that specific day, time, and place of the crime, regardless of whether it was premeditated. The summary judgment motion was denied. 

First Department Holding

In Estate of Murphy v. New York City Housing Authority, 193 A.D.3d 503, 509 (1st Dept. 2021), the Court applied the traditional spontaneity standard and determined that the landowner’s duty to minimally protect lawful guests did not include the duty to outwit or outthink assailants with premeditated motives who commit crimes on their premises. 
In Murphy, plaintiff decedent brought action against the landowner for failing to provide adequate security that resulted in plaintiff’s death stemming from a gang violence dispute. The case involved a street fight between two rival gangs: “Make it Happen Boys” and “Three Stacks”. The gangs were based out of neighboring residential housing developments. Plaintiff’s brother and other close friends were members of the “Three Stacks” gang, from the Grant Houses projects.  Plaintiff’s assailants were members of the “Make it Happen Boys” gang from the Manhattanville House projects. The gang members acted in retaliation against members of “Three Stacks”, who had assaulted the assailants the day before the murder. 

In preparation for their attack, the assailants purchased a gun and were planning to “smoke somebody” with it. On the day of the murder, the assailants approached members of “Three Stacks” outside of the Plaintiff’s apartment building, causing the group to flee into the plaintiff’s building. The assailants followed the group into the premises and found the plaintiff on the fourth floor hallway. The plaintiff briefly pleaded with her assailants that she was not part of the ongoing dispute, but was shot three times, fatally. 

Plaintiff’s estate sued the landowner for negligence in failing to provide functioning locks on the premises, proper security surveillance, and adequate overall security. In its motion for summary judgment, the landowner attached an affidavit from a security management consultant stating that security management performed routine inspections of the building entrance and exit doors every day. Defendant also concluded that no security device would have deterred committed individuals with pre-planned motivations, as assailants had. Plaintiff, in opposition, provided surveillance footage of the day of the attack. The footage showed the assailants entering through an unlocked side door. An affidavit from the plaintiff confirmed that the door’s purpose was for egress only, and random people would often enter the premises through that door by pulling on the door’s window grate. 

The Court granted the landowner's motion for summary judgment. Landowners have a common-law duty to take minimal security precautions to protect tenants from foreseeable criminal acts of third parties. However, preplanned attacks that demonstrate the assailants' determination to succeed in overcoming security precautions severs landowner liability. Bent on revenge, the assailants were intent on entering the premises.  In its holding, the Court cited similar cases where premeditated attacks severed the causal nexus between the criminal act and the landowners duty to protect.  In Cerda v. 2962 Decatur Ave. Owners Corp., 306 A.D.2d 169 (2003), the Court held that it would be difficult for a landowner to prevent sophisticated criminal attacks even with reasonable security measures.  The Court also specifically disagreed with the holding in Scurry, and held that the simple fact that a victim is targeted is enough to shield a landowner from liability.  

There is a marked difference in the approach taken by the First Department and Second Department regarding the spontaneity standard in determining landowner liability for third party criminal acts. These two recent cases have demonstrated a conflict between the Appellate Divisions.  The stage is set for a review of this question by the Court of Appeals. 

Andrea M. Alonso and Kevin G. Faley are partners at Morris Duffy Alonso & Faley. 
David Aminov,
a paralegal, assisted in the preparation of the article.

Reprinted with permission from the September 17, 2021 edition of the New York Law Journal © 2021 ALM Media Properties, LLC. All rights reserved.  Further duplication without permission is prohibited. – 877-257-3382 –