Nallan v. Helmsley-Spear, Inc.

• Decision Date: 10 June 1980
• Docket Number: HELMSLEY-SPEA,INC
• Citation: 429 N.Y.S.2d 606,50 N.Y.2d 507,407 N.E.2d 451
• Parties: , 407 N.E.2d 451 William NALLAN et al., Appellants, v.et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 606

429 N.Y.S.2d 606

50 N.Y.2d 507, 407 N.E.2d 451

William NALLAN et al., Appellants, v. HELMSLEY-SPEAR, INC. et al., Respondents.

Court of Appeals of New York.

June 10, 1980.

Joseph A. Suozzi, Mineola, Morris Hirschhorn, New York City, Jeffrey G. Stark, Mineola, and Theodore H. Friedman, New York City, for appellants.

Philip Hoffer, Raymond J. MacDonnell, New York City, Jerome Prince, Brooklyn, Rose L. Hoffer, New York City, and Peter T. Affatato, Hicksville, for respondents.

OPINION OF THE COURT

GABRIELLI, Judge.

At about 7:15 p. m. on the evening of September 30, 1969, plaintiff William Nallan was shot in the back by an unknown assailant as he leaned over to sign a guest register that had been placed on a desk located in the lobby of a midtown Manhattan office building owned and operated by defendants. It is assumed by all parties that the assailant, who has never been caught, was a would-be assassin whose purpose was to retaliate against Nallan for his efforts to uncover certain corrupt practices in the labor union in which Nallan was an active member. Nallan ultimately recovered from his wounds, and, some time thereafter, he and his wife commenced the instant negligence action against the building owner and manager, seeking recompense for his personal injuries and her loss of services. On this appeal from an order of the Appellate Division, which affirmed a judgment in favor of defendants, the sole question presented is whether the facts adduced at the trial were sufficient to establish a prima facie case of negligence against the two defendants. For the reasons that follow, we conclude that a prima facie case in negligence was made out, and, accordingly, we hold that plaintiffs are entitled to have their complaint reinstated and that a new trial should be had.

At the first trial, plaintiff William Nallan testified that he had been an officer in Theatrical Local 52 of the International Alliance of Theatrical and Stage Employees for several years. In the months preceding the shooting, according to Nallan, he had begun to make inquiries about certain irregularities in the union's practices which, he suspected, were indicative of internal corruption. Following these inquiries, Nallan received word of two separate incidents, which he interpreted as thinly veiled threats upon his life. These incidents were reported to the police, but no additional information emerged as a result of the police investigation, and, consequently, Nallan apparently assumed that he was no longer in any serious danger.

On the evening of September 30, 1969, Nallan arrived at the Fisk Building located at 250 West 57th Street in Manhattan, where a regular business meeting of the union was scheduled to be held. After entering the building through the front door, Nallan immediately proceeded to the sign-in book which had been placed on a desk in the center of the lobby by the building manager. Ordinarily, an attendant employed by the management was stationed at the desk to sign in individuals who arrived at the building after business hours. On the night in question, however, the lobby attendant was away from his post attending to his janitorial responsibilities elsewhere in the building. Consequently, plaintiff Nallan, who was familiar with the after-hours procedures in the building, decided to sign himself in before proceeding to the union offices, which were located on one of the upper floors. As he bent over the desk to sign his name, Nallan heard what sounded like a gunshot and, immediately thereafter, felt a burning sensation in his back. Several individuals were seen running from the building after the shot was fired, but Nallan's assailant was never identified or apprehended. As a result of the shooting, Nallan was incapacitated for a number of months and required intensive nursing care.

In their suit against the owner and manager of the Fisk Building, the Nallans relied upon two distinct theories of liability. First, they contended that, by employing an attendant to keep an eye on the building lobby, defendant Helmsley-Spear had, in effect, assumed an obligation to provide at least minimal protection from criminal intruders for visitors who entered the building after business hours. The lobby attendant's absence from his assigned post, according to plaintiffs, represented a lack of due care in the performance of this assumed obligation. Hence, plaintiffs argued, Helmsley-Spear was liable for plaintiff Nallan's injuries to the extent that the injuries were a foreseeable and proximate consequence of its negligence.

As a second basis for liability on the part of both defendants, plaintiffs posited that, apart from any assumed obligation flowing from the voluntary employment of a lobby attendant, defendants were under a legal duty to exercise reasonable care in making the common areas of their building safe for tenants and their invitees. Because there had been a substantial number of crimes in the building prior to the incident in which Nallan was shot, plaintiffs argued, a jury could rationally find that personal injuries resulting from the criminal acts of third parties were a foreseeable eventuality. Hence, according to plaintiffs, defendants' duty to maintain safe conditions in the building may have included an obligation to take reasonable steps to prevent or minimize the risk of harm from criminal activities in the lobby. Defendants would then be liable, in plaintiffs' view, insofar as their failure to exercise due care in discharging this duty was found to be the proximate cause of plaintiff Nallan's injury.

After both sides had been given an opportunity to present their cases, the two theories of liability advanced by plaintiffs were submitted to the jury in the form of a series of interrogatories. The jury was asked the following questions:

(1) "Did William Nallan enter the Fisk Building on September 30, 1969 for the purpose of attending a (union) meeting * * *?"

(2-a) "Did the defendant Helmsley-Spear voluntarily assume the obligation of maintaining an attendant in the lobby of the Fisk Building after 6:30 P.M.?"

(2-b) "Did the attendant in the lobby of the Fisk building * * * fail to exercise reasonable care in carrying out his duties?"

(3-a) "Did the defendants know or have reason to believe from past experience in their building and in the immediate area surrounding their building that there was a likelihood of criminal acts being committed in the Fisk building?"

(3-b) "Did the nature of the criminal acts require, in the exercise of reasonable care, that an attendant be in the lobby of the Fisk building at all times after 6:30 P.M. or that the lobby not be left unattended unless the front doors (were) locked?"

(4) "Should defendants have foreseen that injury to the plaintiff from criminal actions of a third person would probably result from (their) negligent conduct?"

(5) "Was the negligence of defendants a proximate cause of the injury sustained by plaintiff?"

Additionally, the jury was asked to consider, over plaintiffs' objection, whether plaintiff Nallan had been contributorily negligent in attending the September 30 union meeting without taking any precautionary measures to protect himself, despite his awareness that certain threats on his life had been made.

The jury answered all but two of the interrogatories in the affirmative. Questions (3-b) and (4), however, were answered in the negative. Thus, although the jury found that defendants' negligence was a proximate cause of plaintiff Nallan's injury, it also concluded that the prior crimes in the building did not require defendants to post an attendant in the lobby at all times after 6:30 p. m. and, further, that the injury to plaintiff Nallan from the criminal acts of a third person was not foreseeable. As to the question of Nallan's contributory negligence, the jury returned a verdict in favor of defendants, finding that Nallan had failed to exercise reasonable care in protecting himself and that this omission was the proximate cause of his injury.

Because of this last conclusion by the jury, the Trial Judge found it unnecessary to consider whether an intelligible legal holding could be derived from the jury's responses to the first five interrogatories. ¹ Instead, the Trial Judge simply granted judgment for defendants, on the theory that the jury's finding of contributory negligence operated as a complete bar to any recovery by plaintiffs (see, e. g., Karpeles v. Heine, 227 N.Y. 74, 124 N.E. 101). ²

On appeal, the Appellate Division overturned this aspect of the trial court's ruling. The Appellate Division initially found that the facts were insufficient, as a matter of law, to establish contributory negligence on the part of plaintiff Nallan and that, consequently, it was error for the trial court to deny plaintiffs' motion to have the question of contributory negligence removed from the jury's consideration (67 A.D.2d 719, 720, 412 N.Y.S.2d 650). The Appellate Division held, however, that the judgment in favor of defendants was nevertheless justified, since, in its view, plaintiffs had failed to introduce evidence to support every element of their cause of action. Specifically, the Appellate Division majority found, plaintiffs had not demonstrated either that plaintiff Nallan's injuries were foreseeable or that they were the proximate result of defendants' conduct. ³ Hence, in the end, plaintiffs lost on the merits because of a supposed failure of proof.

Before considering the correctness of this decision, we find it necessary to make some preliminary observations concerning the proceedings below. First, we note our agreement with the Appellate Division's conclusion that the Trial Judge erred, as a matter of law, in submitting the issue of plaintiff Nallan's contributory negligence to the jury. To be sure, we have often said that the question of contributory negligence is "almost always * * * a question of fact" and is ...