Loeser v. Nathan Hale Gardens, Inc.

• Decision Date: 26 February 1980
• Citation: 425 N.Y.S.2d 104,73 A.D.2d 187
• Parties: Fred LOESER and Elayne Loeser, Plaintiffs-Respondents, v. NATHAN HALE GARDENS, INC., and Dwelling Managers, Inc., Defendants-Appellants,
• Court: New York Supreme Court — Appellate Division

Page 104

425 N.Y.S.2d 104

73 A.D.2d 187

Fred LOESER and Elayne Loeser, Plaintiffs-Respondents, v. NATHAN HALE GARDENS, INC., and Dwelling Managers, Inc. Defendants-Appellants,

Supreme Court, Appellate Division, First Department.

Feb. 26, 1980.

Norman H. Dachs, Mineola, of counsel (Harold M. Foster, New York City, atty. for Shayne, Dachs, Weiss, Kolbrener, Stanisci & Harwood, counsel), for defendants-appellants.

Geraldine J. Gould, New York City, of counsel (Segan, Culhane, Nemerov & Green, P.C., New York City, attys.), for plaintiffs-respondents.

Before MURPHY, P. J., and SANDLER, SILVERMAN and ROSS, JJ.

SANDLER, Justice:

Defendants appeal from a judgment entered on a jury verdict for plaintiffs in a personal injury action arising out of an assault upon plaintiff Fred Loeser by unknown assailants in a parking lot owned and managed by defendants.

At issue on this appeal is the legal sufficiency of the evidence to support the jury's determination of liability with regard to injuries that resulted from a criminal assault by others. In addition, defendants argue that in any event trial errors, particularly in the charge to the jury, require reversal of the judgment.

We are satisfied that the evidence presented was sufficient to present a case appropriate for jury determination and that the verdict was not contrary to the weight of the evidence. On the other hand, we find that the charge to the jury included errors sufficiently substantial to require a reversal of the judgment and the remand of the case for a new trial.

Defendants Nathan Hale Gardens, Inc. and Dwelling Managers, Inc. were the owner and managing agent, respectively of an apartment building at 3411-19 Irwin Avenue in the Bronx and a large u-shaped outdoor parking lot behind the building. Fred Loeser and his father Ernest Loeser were tenants in the building to whom a parking space was assigned.

The issue of liability principally litigated at trial concerned the defendants' alleged failure to restore to proper functioning large fluorescent lights, installed by the landlord in conformity with the requirements of Multiple Dwelling Law sec. 26 subd. 7-a, and the New York City Administrative Code Chapter 26, Title D (Housing Maintenance Code) Art. 19, sec. D26-19.07, and which normally illuminated the parking lot.

Although conflicting evidence was presented, the jury was entitled to find that: (1) the automatic timing mechanism controlling the lights in the parking lot was misadjusted during late December 1974, resulting in their going on during the day and off at night; (2) the time malfunction continued although numerous complaints had been made to an employee of Dwelling Managers during January 1975; and (3) the parking lot was accordingly dark on January 19, 1975 between 9:15 P.M. and 9:30 P.M. when plaintiff and his father were parking their car in their assigned place and were assaulted by two men who fled after the assault in a waiting car.

In addition, expert testimony was presented that violent crimes of robbery and assault are deterred by lighting in an outside environment.

Evidence was also presented that over a period of several years various crimes had taken place in the parking lot, primarily acts of larceny from automobiles and criminal mischief, none of which involved violent assaults.

Presenting a separate theory of liability, evidence was introduced that in the summer of 1974 a locked-chain device was installed at the entranceway to the parking lot by the landlord, that within a short period the locked chain ceased to function because of a broken locking device, and that it was not repaired up to the time of the incident.

The submission of this issue to the jury as a possible basis for liability was reversible error.

The apparent purpose of the device was to prevent use of the parking lot by unauthorized vehicles. It may be, as urged by the plaintiffs, that a second purpose was to prevent the theft of automobiles. There is no basis in this record, however, for the conclusion that the device was intended to secure tenants using the parking lot against the kind of violent crime that occurred here, or that it could have been reasonably expected to perform that function.

That a criminal intent on committing an assault or robbery in the parking lot would drive a vehicle into the parking lot for that purpose was simply not reasonably foreseeable under the circumstances presented. Nor can it be fairly concluded that the landlord assumed an ongoing duty with regard to such a contingency by the original installation of the device.

The trial court also erred in charging the jury with regard to Section 83 of the Multiple Dwelling Law, which in substance requires a janitor or superintendent to reside in an apartment house or within 200 feet of it. This alleged violation, if it in fact occurred, had no conceivable relevance to the incident. Although it is unlikely that the trial judge intended to authorize the jury to find negligence contributing to the assault on the basis of this alleged violation, the instruction of the jury on this point, without appropriate qualifying language, had the capacity to confuse needlessly the real issues presented.

The principal remaining issue is whether or not the evidence was legally sufficient to sustain the jury's verdict with regard to liability. We hold that it was.

Essentially two questions are presented. First, did the defendants violate a duty of care owed to the plaintiff? Second, was the violation, if it occurred, a proximate cause of plaintiff's injury?

The principle is now firmly established that landowners owe a "standard of reasonable care under the circumstances whereby foreseeability shall be a measure of liability". See Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 568, 352 N.E.2d 868, 872.

Long before the Court of Appeals swept aside, in Basso v. Miller, the traditional classifications among invitees, licensees and trespassers, "the affirmative obligation of landlords to exercise reasonable care to inspect and repair" common areas of the leased premises for the protection of the lessee had been uniformly accepted. Prosser on Torts, pp. 405, 406 (4th ed.)

Given the standard of care applicable to the basic relationship, what remains to be determined with regard to this issue is whether a violent assault in the unlighted parking lot was reasonably foreseeable and whether the landlord's conduct was unreasonable in proportion to that danger. Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99; see also Sherman v. Concourse Realty Corp., 47 A.D.2d 134, 365 N.Y.S.2d 239; Kenny v. Southeastern Pennsylvania Trans., 3 Cir., 581 F.2d 351; Picco v. Fords Diner, 113 N.J.Super. 465, 274 A.2d 301.

As to whether a criminal event of the kind that occurred here was foreseeable, the evidence presented a jury question. The testimony persuasively documenting the relationship between violent criminal acts and the absence of lighting in an outside environment is emphatically confirmed by common experience.

Of course criminal acts frequently occur in daylight or in lighted premises. When, however, a criminal undertakes to commit a violent crime at night, it is at least a reasonable inference that he has been influenced in his choice of the time by the cover afforded by darkness and that the presence or absence of lighting would be a significant consideration in his determining where and under what circumstances to commit the intended crime.

That general observation has particular validity here in view of the unusual physical circumstances presented. Numerous apartments overlooked the parking lot. It is surely a reasonable judgment that would-be assailants, strangers to the building complex, would have hesitated to enter a brightly illuminated parking lot where they might be observed by tenants looking out of their windows before, during and after the planned crime.

Nor can it seriously be urged that a jury could not reasonably consider the landlord's failure to restore to appropriate operation the fluorescent lights conduct unreasonable in proportion to the danger.

This is not a case in which liability is alleged because the defendants failed to arrange private police protection or otherwise to incur heavy expenses to augment tenant security. Compare Goldberg v. Housing Authority of Newark, 38 N.J. 578, 186 A.2d 291; Kline v. 1500 Massachusetts Avenue Apartment Corp., 141 U.S.App.D.C. 370, 439 F.2d 477; Sherman v. Concourse Realty Corp., supra. All that was required was for the defendants to restore the night time illumination required by law, which could not have conceivably involved more than the most modest of expenditures and efforts. Surely this was not too heavy a burden to impose.

Turning to the issue of proximate cause, the first question is whether or not the defendants' negligence was in fact a substantial cause of the injuries sustained by the plaintiff. Although it is of course impossible to state with certainty that the assault would not have occurred if the lot had been properly illuminated, it was properly a jury question under all the circumstances to determine whether the absence of the lights in fact contributed substantially to the criminal assault and subsequent injuries. See Kenny v. Southeastern Pennsylvania Trans., 581 F.2d 351, supra; Picco v. Fords Diner, 113 N.J.Super. 465, 274 A.2d 301, supra.

Nor is there any substance to the contention that the landlord's negligence was not the proximate cause of the injuries because the immediate cause of the injuries was the criminal act of a third person. It has long been the rule that liability attaches if the danger from the criminal act was foreseeable. In Lillie v. Thompson, 332 U.S. 459, 462, 68 S.Ct. 140, 142, 92 L.Ed. 73, the Supreme Court stated:

"That the foreseeable danger was from intentional or criminal misconduct is irrelevant; respondent nonetheless had a duty to make reasonable...