Nieswand v. Cornell University

• Decision Date: 17 August 1988
• Docket Number: No. 86-CV-1234.,86-CV-1234.
• Citation: 692 F. Supp. 1464
• Parties: George H. NIESWAND and Patricia A. Nieswand, Administrators and Administrators Ad Prosequendum of the Estate of Erin Nieswand, Deceased; and George H. Nieswand and Patricia A. Nieswand, Individually, Plaintiffs, v. CORNELL UNIVERSITY, a corporation organized under the laws of the State of New York, Defendant and Third-Party Plaintiff, v. Su Yong KIM, Third-Party Defendant.
• Court: U.S. District Court — Northern District of New York

692 F. Supp. 1464

George H. NIESWAND and Patricia A. Nieswand, Administrators and Administrators Ad Prosequendum of the Estate of Erin Nieswand, Deceased; and George H. Nieswand and Patricia A. Nieswand, Individually, Plaintiffs, v. CORNELL UNIVERSITY, a corporation organized under the laws of the State of New York, Defendant and Third-Party Plaintiff, v. Su Yong KIM, Third-Party Defendant.

No. 86-CV-1234.

United States District Court, N.D. New York.

August 17, 1988.

Rand & Algeier, Morristown, N.J. (Gary C. Algeier, of counsel), for plaintiffs.

Young, Rose & Millspaugh, Roseland, N.J. (Frederick W. Rose, of counsel), Thomas M. Santoro, Associate University Counsel, Cornell University, Ithaca, N.Y., for defendant and third-party plaintiff.

MEMORANDUM-DECISION AND ORDER

CHOLAKIS, District Judge.

This is a diversity action for personal injury and wrongful death commenced by George and Patricia Nieswand, residents of New Jersey, as administrators of the estate of their daughter Erin and in their individual capacities, against Cornell University, a New York Corporation. The action was originally commenced on May 4, 1984, in the Superior Court of New Jersey, Law Division, Morris County. On June 1, 1984, Cornell removed the action, pursuant to 28 U.S.C. § 1441, to the United States District Court for the District of New Jersey. More than two years later, by Order dated October 3, 1986, the action was transferred to this district.

In September 1983, Erin Nieswand enrolled as a freshman at Cornell University where she shared a room in a dormitory known as North Campus 7 with two other students, Jane Niehaus and Young Hee Suh. During the course of the fall term, Young Hee received love letters and presents from Su Yong Kim who was not a Cornell student. At some point during the semester, Kim came to Cornell and took Young Hee out to dinner. In late October, around Halloween, Kim went to Young Hee's room asking to see her. It appears that Young Hee was no longer interested in Kim and went to the room of Ken Sepe, her resident advisor, and asked him to tell Kim that she was not around. Sepe testified that his offer to have Kim removed was rejected by Young Hee who subsequently left the room to talk with Kim.

In the early evening of Saturday, December 17, 1983, Kim somehow gained access to North 7. The dormitory's doors were supposed to be locked for the weekend. A "Memorandum on Residential Hall Security Policy and Procedures", which was drafted after the incident by Lieutenant Boice of Cornell's Department of Public Safety, did not definitively conclude how Kim gained entry to the dormitory. Among the possibilities is that either the front door or fire escape doors to the suites were not adequately secured or were propped open, that someone let Kim in, or that he simply walked in while a resident either left or entered the dormitory. The deposition testimony of various witnesses conflicts on the exact manner by which Kim entered the dormitory.

Erin saw Kim and left a note on her dormitory room door that Kim was on campus. Young Hee returned to her room at some point after 11:00 p.m. Sitting in the corridor of the suite were other residents of the suite including Diane Nielsen and Melissa Paulson. Kim was apparently down the corridor around the corner. After being informed of Kim's appearance in the suite, Young Hee went into Nielsen's room where she was followed by Nielsen and Paulson and the door was closed.

Young Hee called her roommate, Erin, who was elsewhere on the Cornell campus. Sometime thereafter, Erin, accompanied by Peter Browning, another Cornell student, arrived at and entered Nielsen's room. At some point, Young Hee also phoned David Kang, a Cornell student, and asked him to come to her room and talk with Kim in Korean. Through an open door, Young Hee conversed with Kim who remained in the corridor. Young Hee returned to her own room to talk with Kim who attempted to close the door behind him. Nieswand, Browning and Paulson entered the room. Nielsen also returned to the suite. Shortly thereafter, Kang arrived.

From an undisclosed location, either on his person or in the suite, Kim suddenly pulled out a rifle and ordered Nielsen and Paulson, who were standing in the doorway, into the room. Kim announced his intention to kill all six persons in the room, Suh, Nieswand, Nielsen, Paulson, Browning and Kang. Sometime thereafter, Jane Niehaus, the third roommate, attempted to enter her room, but was told to stay out by Young Hee.

Kim subsequently allowed Nielsen, Paulson, Browning and Kang to leave the room. Kim refused to permit Erin to leave, apparently because she had allegedly teased him on the phone in the past. Shortly after the four students were released, two series of shots were heard.

Upon entering the room, it was apparent that Young Hee, who was shot three times, was dead. Erin, who was shot twice, was alive and removed to Tompkins Community Hospital. She was subsequently transported to the Upstate Medical Center in Syracuse where she died.

Plaintiffs have brought fifteen separate counts against Cornell arising out of the tragic incident. These counts can be summarized as follows:

Counts I and II Cornell failed to provide adequate security for its students and, in particular, was aware of Kim's antisocial behavior

Counts III and IV Cornell voluntarily assumed the duty to protect students from harm and breached this duty

Count V Cornell's representations of safety and its total and exclusive control of campus security rendered Cornell strictly liable for Erin's death

Count VI Pain and suffering caused by Erin as a result of the breach of duty set forth in the previous counts

Counts VII and VIII Cornell security personnel were unprepared, untrained and unequipped to handle reasonably foreseeable criminal activity and failed to render aid

Counts IX and X Cornell breached a contract existing between it and Erin

Count XI Cornell breached its obligations towards Erin's parents who were third party beneficiaries of Cornell's contract with Erin

Count XII Cornell inflicted emotional distress on Erin's parents by not promptly notifying them of the shooting; by failing to make travel arrangements to Cornell after the incident; and by mailing Erin's grades which included an incomplete grade for two classes

Counts XII, XIV, and XV Punitive Damages

Cornell has brought a third-party action against the convicted murderer, Su Yong Kim.

By its motion, Cornell seeks summary judgment, pursuant to Fed.R.Civ.P. 56(c), on all of plaintiffs' counts. On January 15, 1988, arguments were heard on defendant's motion. In their opposition papers and at oral argument, plaintiffs withdrew the strict liability claim (Count V) and the third-party beneficiary claim (Count XI). At oral argument on this motion, this Court dismissed the infliction of emotional distress claim (Count XII).

Under Fed.R.Civ.P. 56(c), summary judgment will be granted if "the pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." As the moving party, Cornell bears the initial burden of demonstrating an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265, 273 (1986). If this burden is met, plaintiffs are required to set forth specific facts indicating a genuine issue for trial. Id. at 324, 106 S.Ct. at 2553, 91 L.Ed.2d at 274; see Fed.R.Civ.P. 56(e). If genuine factual issues exist, they are to be resolved by the finder of fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202, 213 (1986). All reasonable inferences are to be drawn in favor of the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1608-09, 26 L.Ed.2d 142 (1970).

Negligence Claims

Cornell seeks to dismiss Counts I through IV, and VI through VIII on the ground that, as a matter of law, it cannot be held liable for its alleged failure to provide Erin Nieswand with adequate security. Plaintiffs' allegation of negligence is based on two theories of liability: (1) Cornell, as a landowner, failed to provide adequate security and (2) Cornell, by virtue of its relationship with its students, was obligated to provide adequate security.

To prove a case of negligence under New York law, a plaintiff must establish: (1) the existence of a duty on the part of a defendant to plaintiff; (2) defendant's breach of that duty; and (3) an injury proximately caused by the breach. Boltax v. Joy Day Camp. 67 N.Y.2d 617, 499 N.Y.S.2d 660, 490 N.E.2d 527 (1986). The question presented by this motion is whether Cornell owed to Erin Nieswand the duty to undertake security or protective measures for the dormitories it operated.

New York law imposes a duty on a landowner to exercise reasonable care under the circumstances to maintain his property in a safe condition. D'Amico v. Christie, 71 N.Y.2d 76, 85, 524 N.Y.S.2d 1, 5, 518 N.E.2d 896, 900 (1987); Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 568, 352 N.E.2d 868, 872, (1976); Caraballo v. United States, 830 F.2d 19, 21 (2d Cir.1987). However, a landowner is not an insurer of safety. Instead, a landowner "cannot be held to a duty to take protective measures unless he knows or has reason to know that there is a likelihood of conduct on the part of third persons which would endanger the safety of the visitor." Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 429 N.Y.S.2d 606, 613, 407 N.E.2d 451, 458 (1980); see Miller v. State, 62 N.Y.2d 506, 478 N.Y.S.2d 829, 467 N.E.2d 493 (1984). Besides foreseeing harm from a particular assailant, however, a landowner can be put on notice if past history of criminal activity indicates that a criminal incident is a significant, foreseeable possibility. Nallan, 50 N.Y.2d...