Waters v. New York City Housing Authority

• Decision Date: 17 February 1987
• Citation: 505 N.E.2d 922,513 N.Y.S.2d 356,69 N.Y.2d 225
• Parties: , 505 N.E.2d 922, 55 USLW 2477 Simone WATERS et al., Appellants, v. NEW YORK CITY HOUSING AUTHORITY, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 356

513 N.Y.S.2d 356

69 N.Y.2d 225, 505 N.E.2d 922, 55 USLW 2477

Simone WATERS et al., Appellants, v. NEW YORK CITY HOUSING AUTHORITY, Respondent.

Court of Appeals of New York.

Feb. 17, 1987.

Stephen Levine, New York City, for appellants.

Robert L. Boydstun, New York City, for respondent.

OPINION OF THE COURT

TITONE, Judge.

The issue in this appeal is whether the owner of an occupied urban building who has not kept the building's security system in good repair may be held liable in tort solely because the building was used to complete a crime that began on a public street. Under the circumstances of this case, where neither the victim nor the crime were connected with the defendant's building, we hold that plaintiff was not within the zone of foreseeable harm and that, as a consequence, liability cannot be imposed.

The complaint in this case was dismissed by Special Term on defendant Housing Authority's summary judgment motion after affidavits were submitted and a hearing in which plaintiff gave sworn testimony was held. The alleged facts, briefly stated, are that at about 6:45 A.M. on July 25, 1982, 16-year-old Simone Waters was walking on a public street, just outside a public housing project, when she was accosted by a man who displayed a knife and demanded that she walk with him to a building around the corner. Once inside the building, which was unlocked, the man forced her to the roof and, after taking her money, sodomized her. According to her bill of particulars, plaintiff suffered emotional trauma, as well as minor physical injuries, as a result of the incident.

An investigator's affidavit submitted by plaintiff further alleged that the front door locks on the building, which was owned by defendant, had been either broken or missing for at least two years before the incident and that several tenants had registered complaints about the condition over that two-year period. According to the affidavit, the investigator's inquiries also disclosed that there had been at least five criminal incidents in the building involving outsiders. Finally, the investigator stated, based on his experience, that "had the door locks on this building been in proper working order, this sexual attack would in all probability have not occurred." This statement was supported by the additional allegation that because of the nature of the crime and the psychology of this type of criminal, crimes such as this one "almost invariably occur in secluded areas."

Relying on Palsgraf v. Long Is. R.R. Co., 248 N.Y. 339, 162 N.E. 99, Special Term held that "it requires too much stretching of the imagination to hold defendant responsible" for plaintiff's injuries and, as a consequence, the court granted defendant's motion for summary judgment. The Appellate Division affirmed, with two Justices dissenting, 116 A.D.2d 384, 501 N.Y.S.2d 385. On plaintiff's appeal from the Appellate Division order, we now affirm.

It is clear that when a governmental entity such as defendant acts in a proprietary capacity as a landlord, it may be held liable in tort to the same extent as is a private landlord (Miller v. State of New York, 62 N.Y.2d 506, 511, 478 N.Y.S.2d 829, 467 N.E.2d 493). It is also now beyond dispute that a landlord, private or public, may have a duty to take reasonable precautionary measures to secure the premises if it has notice of a likelihood of criminal intrusions posing a threat to safety (see, Miller v. State of New York, supra; Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 429 N.Y.S.2d 606, 407 N.E.2d 451). Finally, we have held that a building owner who breaches such a duty may be held liable to an individual who is injured in a reasonably foreseeable criminal encounter that was proximately caused by the absence of adequate security (Miller v. State of New York, supra; Nallan v. Helmsley-Spear, Inc., supra ).

These basic principles, however, do not resolve the unusual problem presented here. Although plaintiff has made the necessary allegations of negligent security maintenance, notice of prior criminal intrusion and proximately caused injury, ^* her case differs significantly from those in which the landowner's liability for inadequate security has previously been upheld. Unlike the tenant in Miller v. State of New York (supra) and the business guest in Nallan v. Helmsley-Spear, Inc. (supra), plaintiff had no connection whatsoever to the building in which her injuries ultimately occurred. Accordingly, we must look beyond Nallan and Miller to determine whether defendant landlord's duty should be extended to a person in plaintiff's position.

It is often said that "[p]roof of negligence in the air * * * will not do" (Pollock, Torts, at 472 [10th ed.]; Martin v. Herzog, 228 N.Y. 164, 170, 126 N.E. 814). What this maxim suggests, simply put, is that the concept of a duty of care, which is essential to the law of negligence, has meaning only when it is considered in relation to both the harm that the duty exists to prevent and the class of individuals to whom it is owed. "The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension" that delimits the duty's scope (Palsgraf v. Long Is. R.R. Co., supra, 248 N.Y. p. 344, 162 N.E. 99).

The question of the scope of an alleged tort-feasor's duty is, in the first instance, a legal issue for the court to resolve. In this analysis, "not only logic and science, but policy play an important role" (De Angelis v. Lutheran Med. Center, 58 N.Y.2d 1053, 1055, 462 N.Y.S.2d 626, 449 N.E.2d 406). The common law of torts is, at its foundation, a means of apportioning risks and allocating the burden of loss. While moral and logical judgments are significant components of the analysis, we are also bound to consider the larger social consequences of our decisions and to tailor our notion of duty so that "the legal consequences of wrongs [are limited] to a controllable degree" (Tobin v. Grossman, 24 N.Y.2d 609, 619, 301 N.Y.S.2d 554, 249 N.E.2d 419; see, Pulka v. Edelman, 40 N.Y.2d 781, 390 N.Y.S.2d 393, 358 N.E.2d 1019; Ultramares Corp. v. Touche, 255 N.Y. 170, 174 N.E. 441).

With these principles in mind, we turn now to the...