Gill by Gill v. New York City Housing Authority

• Decision Date: 24 September 1987
• Parties: Marvin GILL, an infant over the age of 14 years by his mother and natural guardian Frances GILL and Frances Gill, individually, Plaintiffs-Respondents, v. NEW YORK CITY HOUSING AUTHORITY, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 364

519 N.Y.S.2d 364

130 A.D.2d 256

Marvin GILL, an infant over the age of 14 years by his mother and natural guardian Frances GILL and Frances Gill, individually, Plaintiffs-Respondents, v. NEW YORK CITY HOUSING AUTHORITY, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Sept. 24, 1987.

Arthur N. Seiff, of counsel (Allen H. Isaac with him on the brief; Gladstein & Isaac, New York City, attorneys) for defendant-appellant.

Fred R. Profeta, Jr., of counsel (Blauman and McCabe, New York City, attorneys) for plaintiffs-respondents.

Before MURPHY, P.J., and SANDLER, CARRO, MILONAS and WALLACH, JJ.

MURPHY, Presiding Justice.

The issue in this case is whether defendant Housing Authority may be held to a duty to prevent the mental illness of one of its tenants from erupting into violent behavior injurious to another tenant.

On July 23, 1982, Marvin Gill, then 16 years of age, was attacked and stabbed repeatedly by Ernest Lamb. Both Gill and his assailant were tenants in a building owned and operated by the New York City Housing Authority situated at 3353 Fort Independence Street in the Bronx. The stabbing occurred in one of the building's hallways. It is not disputed for the purposes of this litigation that in the moments just prior to the attack Ernest Lamb exhibited signs of acute emotional disturbance and that the stabbing itself was prompted by Lamb's then evident psychosis.

About one year after the incident, Marvin Gill, by his mother Frances Gill, commenced the within lawsuit against the Housing Authority. They alleged in their complaint, inter alia, that Ernest Lamb had a lengthy psychiatric history and was known to be a violent and dangerous tenant; that defendant Housing Authority knew or should have known that Ernest Lamb presented a danger to other tenants; that defendant had a duty to keep its tenants safe and secure while traversing common areas; and that defendant breached its duty to its tenant Marvin Gill when it failed to evict Ernest Lamb prior to the assault, or to post warning signs, or to take steps to control Lamb.

The proof adduced at trial established that Ernest Lamb, his parents and his siblings had been tenants in defendant's building since 1975. Either shortly before the time the Lambs moved into the Housing Authority project or soon thereafter, Ernest, then in his mid-teens, began to exhibit symptoms of mental illness. He was treated for a period as an outpatient at Metropolitan Hospital but eventually required inpatient treatment at Bronx Psychiatric Center. Upon his discharge he returned home to live with his family. Despite his psychiatric problems, there were no complaints about Ernest registered with the Housing Authority until March, 1976. At that time, Ernest on one occasion wandered in and out of an upstairs neighbor's open apartment. The incident, which was otherwise inconsequential, was reported by the neighbor and investigated by Housing Authority personnel. On speaking with Ernest's father, Rennick Lamb, the Housing Authority learned that Ernest had been psychiatrically hospitalized some months before and had since been receiving outpatient care and medication. Rennick Lamb indicated that he had discussed the incident with Ernest and had told him not to walk around the building. This was the only complaint concerning Ernest made by a tenant outside of the Lamb household until the event more than six years later which gave rise to the within lawsuit.

During the intervening time only two incidents respecting Ernest were brought to defendant's attention. The first of these occurred in March, 1979, and the second in May of the same year. On both occasions Ernest's parents sought the assistance of the Housing Authority police to bring their son to the hospital. The police responded routinely to the Lambs' requests for assistance and Ernest was transported without complication to the hospital by ambulance where he was admitted for psychiatric treatment. No violence was reported in connection with either incident.

The last notation in defendant's records concerning Ernest Lamb prior to the Gill stabbing is dated January 5, 1980. On that date an annual rent review was conducted and the Lambs were interviewed briefly for that purpose. In the course of the interview defendant learned that Ernest was no longer receiving treatment.

The evidence adduced at trial also included testimony as to matters involving Ernest Lamb never brought to defendant's attention. This testimony indicated that Ernest had been hospitalized on numerous occasions, and that there had from time to time been family quarrels in which Ernest participated. The only incident which involved any violence, and which it must be underscored was never reported to defendant, was one recounted by the plaintiff in which Ernest was said to have grabbed plaintiff about the neck while making some inappropriate remark. The incident allegedly occurred about 2 1/2 weeks before the stabbing.

Based upon the foregoing evidence and the undisputed fact that defendant had not acted to control Lamb or evict him, the jury found defendant liable for negligence and proceeded to award damages to the plaintiffs in the total amount of $194,972.00. This appeal followed.

Initially, it must be observed that defendant's actual knowledge respecting Ernest Lamb afforded it no way of foreseeing an armed assault of the sort that occurred. As of the date of the Gill incident, defendant knew only that Ernest Lamb was mentally ill; that he had been treated for his illness on both an inpatient and outpatient basis; and that as of January, 1980, he was not being treated. Notwithstanding Lamb's history of mental illness, defendant had received but one complaint concerning behavior susceptible of description as tenant misconduct. This very minor incident, both unprecedented and unrepeated, was duly investigated and the matter was appropriately laid to rest.

Even plaintiff does not argue seriously that defendant possessed information from which it could have foreseen that Lamb would become dangerous and violent toward other tenants. Rather, plaintiff advances as its "threshold claim" the argument that had defendant diligently acquired information about Ernest Lamb as plaintiff urges it should have, it would have learned that Ernest Lamb was, to use plaintiff's phrase, "a ticking bomb with an obvious potential for enormous violence."

This conclusion, however, finds little support in the trial evidence. For the most part, that evidence simply confirmed that Ernest Lamb was chronically mentally ill and periodically required institutional care. When he was not in the hospital he lived with his family and, as might be expected, there were occasional family quarrels. The picture of Ernest Lamb which emerges from the trial testimony is not that of a violent person. To the contrary, Ernest is described as afraid of going outside, as someone who spent most of his time alone, and as a frequent victim of abuse rather than an aggressor. Indeed, the first instance in which it can be said that Ernest Lamb behaved violently was the one which allegedly occurred some two and a half weeks before the stabbing when Ernest grabbed plaintiff about the neck. But, as noted, this incident was never brought to defendant's attention.

It is, in fact, not upon the proof offered at trial that plaintiff ultimately rests its claim as to Ernest Lamb's "obvious potential for enormous violence", but upon what a satisfactory investigation of Lamb would have revealed. Plaintiff reasons that Lamb was indisputably dangerous at the time of the stabbing and that had he been properly scrutinized by defendant, his violent propensities would have been revealed. Plainti suggests that defendant should have examined the records of Ernest Lamb's Bronx Psychiatric Center hospitalizations and that the Lambs could have been compelled to disclose psychiatric information concerning Ernest on pain of eviction if they refused to do so. Plaintiff maintains, in addition, that the continuation of Ernest's tenancy should have been conditioned upon his submission to a psychiatric examination.

But the endpoint of plaintiff's argument is not that Ernest's dangerousness would have been apparent to defendant if it had conducted a proper investigation; plaintiff goes further, urging that defendant's failure to investigate Lamb as it should have, equitably precludes it from arguing that Lamb's dangerousness was not foreseeable.

Plaintiff is, in our view, mistaken, both as to what an investigation of the sort advocated would most probably have revealed, and as to the preclusive effect of defendant's failure to conduct such an investigation.

The fact that Ernest Lamb eventually became dangerous does not mean that he was always dangerous or that his impending dangerousness was reasonably foreseeable by defendant. We can, on the present record, only speculate as to what Ernest Lamb's hospital records would have shown, or what a psychiatric examination at any given point during Ernest Lamb's seven year tenancy would have disclosed. Given the widely recognized inherent difficulties in predicting dangerousness (see e.g. J. Monahan, The Clinical Prediction of Violent Behavior, 47-49 [1981] ), we cannot simply assume that the results of the sort of investigation plaintiff would have had defendant perform would support plaintiff's otherwise unfounded assertion that Ernest Lamb was "obviously potentially dangerous".

The plain fact is that based upon the evidence in the record, plaintiff has not met its burden of establishing that the complained of harm was foreseeable. To compensate for this fundamental deficiency in its prima facie proof of negligence, plaintiff alludes to "what a proper follow-up might have revealed" about Ernest Lamb. Plaintiff is, of course, well aware that "what a proper follow-up might have revealed" does not constitute proof that Lamb's conduct was in fact...