By Kevin G. Faley and Andrea M. Alonso
August 24, 2021
Landowners have a common-law duty to protect those who are lawfully on their premises from foreseeable criminal acts committed by third parties. Scurry v. New York City Hous. Auth., 193 A.D.3d 1, 5 (2d Dept. 2021). This extends to tenants and their guests. Brathwaite v. New York City Hous. Auth, 92 A.D.3d 821, 823 (2d Dept. 2012) Landowners only have to take minimal security measures from these reasonably foreseeable criminal acts. Maheshwari v. City of New York, 810 N.E.2d 894, 897 (2004). The landowner's duty to protect from criminal acts does not make them insurers of the safety of those on their premises. Venetal v. City of New York, 21 A.D.3d 1087, 1088 (2d Dept. 2005).
The scope of a Landowner’s duty of reasonable care to maintain its premises in a safe condition for lawful guests arises from past criminal experiences and likelihood of the criminal conduct endangering a visitor’s safety. Maheshwari, 810 N.E.2d at 897. Landowner liability is established if the owner was negligent in its duty to protect its guests. Scurry, 193 A.D.3d at 5. Foreseeability and notice are the two crucial elements in determining landowner negligence in safely maintaining its premises. The Courts examine factors such as: (1) previous criminal conduct; (2) similarity to the occurrence at issue, and; (3) the proximity of previous crimes to the owner’s premises. Gentile v. Town & Vill. of Harrison, 137 A.D.3d 971, 972 (2d Dept. 2016).
There is no requirement that prior criminal activity be at the exact location where the plaintiff was harmed, or the harm be the exact same type that the plaintiff suffered. Venetal, 21 A.D.3d at 1088-89. However, Courts have held that ambient neighborhood crime alone is insufficient to establish landowner notice. Maria T. v. New York Holding Co. Assocs., 52 A.D.3d 356, 360 (1st Dept. 2008). A plaintiff cannot rely on crime statistics to prove prior criminal activity. Crime is a fact of life and is conceivable, but that does not make it foreseeable. Maria T., 52 A.D.3d at 360. The courts apply all the factors and determine if previous conduct was sufficiently similar and proximate to establish foreseeability. Beato v. Cosmopolitan Assocs., LLC, 69 A.D.3d 774, 776 (2nd Dept. 2010). The landowner’s duty to reasonably protect those using the premises is never breached if the plaintiff fails to present evidentiary proof of notice of prior criminal activity.
In Beato, the plaintiff who was a tenant of the premises, was assaulted by a group of assailants in the building lobby. Plaintiff was beaten for a fifteen minute period and suffered serious head and facial injuries, including fractures, as a result of the attack. Plaintiff testified at trial that he had complained numerous times to the building’s superintendent of drug activity and a large group of men loitering in the building’s lobby prior to the accident. The Court held that the previous conduct of loitering and drug activity did not rise to the level of the seriousness of the assault alleged by the plaintiff and was insufficient to establish foreseeability. The Court granted the landowner’s motion for summary judgment.
Foreseeability
In Markov v. Grecian Gardens Co, 188 A.D.3d 1032 (2d Dept. 2020), the plaintiff was robbed in his apartment in the landowner’s residential building. On the evening in question, the assailants came onto the building’s roof and entered the plaintiff’s apartment through the apartment’s terrace, robbing the plaintiff at gunpoint. The plaintiff alleged that the defendant-landowner failed to provide reasonable security measures such as a 24-hour doorman, and these failures were a proximate cause of the plaintiff’s injuries. The Court dismissed the case, reasoning that the plaintiff did not present evidentiary proof of any prior criminal activity. As a result, the landowner satisfied its burden of providing minimal precautions and a 24-hour doorman was unnecessary.
In Wong v. Riverbay Corp., 139 A.D.3d 440 (1st Dept. 2016), plaintiff and his brother were residents of Co-Op City, a large residential development with over 200 buildings. On the day of the incident, the plaintiff and his brother were followed to their building by two men and shot. Plaintiff’s brother was killed in the assault. Plaintiff presented evidence of twenty-four complaints around the complex of shots fired in the months preceding the incident. Plaintiff also presented an article from the local newspaper expressing the need for greater police presence in the community. The landowner presented evidence of security precautions by providing locking doors, an intercom, twenty-four hour security, fencing, video surveillance, and an emergency callbox. The landowner established that the assailants specifically targeted the plaintiffs in the attack after an altercation occurred outside the plaintiff’s building between the plaintiffs and assailants. The Court dismissed the case holding that the landowner satisfied its burden in taking sufficient precautions to protect tenants from foreseeable crimes. Furthermore, the landowner's failure in addressing the complaints was not a proximate cause of the attack, as it was a targeted attack that occurred outside of the building.
A landowner will be held liable if the plaintiff presents sufficient evidence of previous similar criminal conduct in close proximity to the premises. In Carasquillo v. Macombs Village Associates, 99 A.D.3d 455, 456 (1st Dept. 2012), the plaintiff was assaulted by an assailant in the stairwell of the premises. The plaintiff did not know the assailant and could not determine the motive of the assailant as well. The plaintiff claimed that the landowner breached its duty in protecting the plaintiff from foreseeable acts and presented evidence of a broken magnetic lock in the building lobby, as well as the building's lengthy history of drug activity, muggings, and robberies. Security reports over the previous three years established a triable issue of fact of whether the attack on the plaintiff was foreseeable.
Unexpected and Spontaneous Acts
Landowners are also not liable if they have no control over the parties engaged in the criminal conduct on their premises. Landowners are absolved of liability if the attacks are premeditated or targeted. Willful criminal acts that are unforeseeable as a matter of law break the causal connection between criminal conduct and the landowner’s negligence. Simmons v. Kingston Heights Apartments, LP, 971 N.Y.S.2d 75, 1 (2013).
In Estate of Murphy v. New York City Housing Authority, 193 A.D.3d 503, 509 (1st Dept. 2021), the court established that the minimal steps the landowner is required to take under the common-law to secure their premises do not include the duty to “outwit” or “outthink” those who pre-plan acts. The Court held that if an assailant had pre-planned an attack, this would insulate the landowner from liability.
In Murphy, the plaintiff decedent was a resident in the landowner’s premises when she was fatally shot in the hallway of her building. The assailants, members of the local gang “Make it Happen Boys,” were searching for rival gang members in the plaintiff-decedent’s building after a gang fight the day before the incident. Plaintiff’s brother was a member of “Three Stacks,” the rival gang in dispute. Shortly after the fight, the assailants planned to “smoke somebody” in retaliation. The assailants entered the landowner’s premises through an unlocked side door on the day of the occurrence and plaintiff was caught in the crossfire after pleading to the assailants that she was not involved in the dispute. Plaintiff was shot three times and killed.
The plaintiff’s estate argued that on previous occurrences, people would commonly enter the premises through the side door by pulling on the window grate, even though the door was supposed to be for egress only. The landowner argued that the attack was preplanned and an unforeseeable superseding intervening cause that negated notice. The Court held that the landowner sufficiently proved the assailants' premeditation and insistence on entering the premises overcame the landowner’s duty to protect lawful guests.
In Simmons, 971 N.Y.S.2d at 1, the plaintiff was shot by the father of her child in her apartment. The assailant resided elsewhere and had been provoked by the plaintiff during a dispute over the phone regarding babysitting arrangements for their child. The assailant and two accomplices appeared at the plaintiff’s apartment within one hour of the conversation and shot the plaintiff.
Plaintiff sued the landowner for negligently failing to provide adequate security on the premise entryway door and the plaintiff’s apartment door. The building was undergoing renovation at the time of the occurrence. The landowner contended that the criminal act was unforeseeable, and no previous similar criminal conduct occurred within proximity of the premises for the landowner to be put on notice of the conduct. The Court held that the attack was personally motivated which severed the causal connection between the landowner negligence and the criminal act.
A landowner who fails to take minimal precautions to protect lawful guests and residents of its premise will be liable for injuries sustained as a result of the criminal conduct. The burden increases when the plaintiff establishes significant similar criminal occurrences within a reasonable proximity of the premises. New York Courts have consistently held, however, that the landowner is absolved of liability if it met the requisite duty of care or if the attacks were premeditated.
Kevin G. Faley and Andrea M. Alonso are partners in the firm of Morris Duffy Alonso & Faley. David Aminov, a paralegal, assisted in the preparation of this article.
Reprinted with permission from the August 24, 2021 edition of the New York Law Journal © 2021 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.