Waters v. New York City Housing Authority

• Citation: 501 N.Y.S.2d 385,116 A.D.2d 384
• Parties: Simone WATERS, etc., et al., Appellants, v. The NEW YORK CITY HOUSING AUTHORITY, Respondent.
• Decision Date: 21 April 1986
• Court: New York Supreme Court Appellate Division

Page 385

501 N.Y.S.2d 385

116 A.D.2d 384

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

Supreme Court, Appellate Division,

Second Department.

April 21, 1986.

Karpas & Hirshman, New York City (Stephen Levine, of counsel), for appellants.

Gladstein & Isaac, New York City (Irving Rosen and Robert L. Boydstun, of counsel), for respondent.

Before GIBBONS, J.P., and BROWN, WEINSTEIN, RUBIN and EIBER, JJ.

WEINSTEIN, Justice.

Presented for our determination herein is the question of whether the defendant, a public authority organized and existing pursuant to the laws of this State, is liable in negligence for the injuries occasioned to a passerby who was accosted at knifepoint by an unknown individual on a public street and compelled to accompany him to a nearby building, which happened to be a New York City Housing Authority project. Inasmuch as a finding of liability would be tantamount to imposing upon the defendant a liability for criminal acts against a passerby brought upon the defendant's premises by a criminal who chose to utilize the defendant's property for his nefarious deeds, a duty which cannot reasonably be found to exist, we affirm the order granting the defendant's motion for summary judgment.

The facts are essentially undisputed. On the morning of July 25, 1982, the infant plaintiff, who was then a junior in high school, was accosted at knifepoint by an unknown individual on a public sidewalk. Said individual directed that she accompany him into a nearby building which happened to be a New York City housing project. The perpetrator gained access to the building via an unlocked door. Once inside, he took the infant plaintiff's money and forced her into an elevator and up to the roof where he sexually assaulted and sodomized her. The incident lasted for approximately 25 minutes. After threatening to kill her if she made any noise or did not remain in the premises for 10 minutes, the assailant fled. The infant plaintiff thereafter proceeded to her grandmother's house, at another address, and was ultimately taken for emergency medical treatment to a nearby hospital where she related the incident to the police. The assailant was not apprehended.

The infant plaintiff and her father instituted this action against the New York City Housing Authority alleging, inter alia, negligence in the maintenance and control of its real property and the appurtenances thereto by failing to properly and adequately secure the same. The plaintiffs' investigator revealed that the front door locks had been broken, missing and nonfunctioning for a period of two years prior to the incident. Moreover, there had been at least five criminal events against tenants involving unauthorized entry into the building during this interval.

After issue was joined, the defendant moved for summary judgment on the ground that it owed no duty to the infant plaintiff, who was neither a tenant, nor a guest, invited or uninvited, to protect her from the intentional actions of the assailant.

In granting the defendant's application for summary judgment, Special Term reasoned as follows: "[A] determination that the NYCHA was negligent in regard to the incident in question presupposes that their duty extends to any and all possible incidents (however remote) which might result in an individual taking advantage at any time, under any circumstances, of the fact that the NYCHA allowed a door to be unlocked in the early hours of the morning". Special Term was simply unwilling to stretch the concept of duty and liability to such extensive parameters.

Our decision herein is predicated upon a fundamental tenet of tort law, the concept of duty. A legal duty has been referred to as "a question of whether the defendant is under any obligation for the benefit of the particular plaintiff; and in negligence cases, the duty is always the same, to conform to the legal standard of reasonable conduct in the light of the apparent risk" (Prosser, Law of Torts § 53, p. 324 [4th ed.] ). The Court of Appeals has succinctly explained the concept of duty in the following terms:

"Duty is essentially a legal term by which we express our conclusion that there can be liability * * * It tells us whether the risk to which one person exposes another is within the protection of the law" (DeAngelis v. Lutheran Med. Center, 58 N.Y.2d 1053, 1055, 462 N.Y.S.2d 626, 449 N.E.2d 406).

In order to have an actionable tort, a plaintiff must bring himself or herself within the scope of a definite legal obligation. "Negligence in the air, so to speak, will not do" (Pollock, Law of Torts, p. 468 [13th ed.] ).

In attempting to define limits which circumscribe legal duties, arbitrary distinctions are an inevitable result. In the quest for suitable definitions, not only logic and science but also considerations of public policy play an important role (see, Bovsun v. Sanperi, 61 N.Y.2d 219, 228, 473 N.Y.S.2d 357, 461 N.E.2d 843; DeAngelis v. Lutheran Med. Center, supra ).

It is well settled that there is a duty incumbent upon landlords to take minimal precautions to protect tenants against the reasonably foreseeable criminal activities of third parties on the landlord's premises (see, Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 517, 429 N.Y.S.2d 606, 407 N.E.2d 451; Miller v. State of New York, 62 N.Y.2d 506, 513, 478 N.Y.S.2d 829, 467 N.E.2d 493; Sherman v. Concourse Realty Corp., 47 A.D.2d 134, 365 N.Y.S.2d 239; Skaria v. State of New York, 110 Misc.2d 711, 442 N.Y.S.2d 838; Jacobs v. Helmsley-Spear, Inc., 121 Misc.2d 910, 469 N.Y.S.2d 555).

It has also been held that the status of the person injured on another's land is not the determinative factor in assessing the landowner's duty of care (see, Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868). Whether the injured party was a business invitee of the defendant's tenant or a visitor of some lesser status is merely one of numerous considerations which must be taken into account in ascertaining whether the risk of harm was foreseeable under the circumstances (Nallan v. Helmsley-Spear, Inc., supra, 50 N.Y.2d at p. 518, 429 N.Y.S.2d 606, 407 N.E.2d 451; Scurti v. City of New York, 40 N.Y.2d 433, 442-443, 387 N.Y.S.2d 55, 354 N.E.2d 794). In view of these tenets, it is clear that a duty of care does not devolve upon the defendant New York City Housing Authority with respect to all persons who regularly traffic the city streets and sidewalks.

Although there had been, prior to the subject incident, a number of tenant complaints concerning the broken front door lock as well as previous criminal incidents occurring inside the premises, this is not the sole determining factor in assessing liability against a defendant. As set forth by the Court of Appeals in Nallan v. Helmsley-Spear, Inc. (supra, 50 N.Y.2d at p. 519, 429 N.Y.S.2d 606, 407 N.E.2d 451), quoting from the Restatement of Torts, Second:

"Of course, a possessor of land, whether he be a landowner or a leaseholder, is not an insurer of the visitor's safety. Thus, even where there is an extensive history of criminal conduct on the premises, the possessor cannot be held to a duty to take protective measures unless it is shown that he either knows or has reason to know from past experience 'that there is a likelihood of conduct on the part of third persons * * * which is likely to endanger the safety of the visitor' (Restatement, Torts 2d § 344, Comment f)".

At bar, not only was the infant plaintiff not a visitor upon the premises, but there was also no reason to know from past experience of the presence of an assailant at some point near the premises who would endanger her safety to such a degree.

In any event, the concepts of foreseeability and duty are not to be equated. Foreseeability comes into play only after it has been determined that a duty of care exists (see, Pulka v. Edelman, 40 N.Y.2d 781, 785, 390 N.Y.S.2d 393, 358 N.E.2d 1019, rearg. denied 41 N.Y.2d 901, 393 N.Y.S.2d 1028, 362 N.E.2d 640). The mere fact that a consequence might foreseeably result from an action or condition does not serve to establish a duty running from a defendant to a plaintiff. In the absence of a duty, as a matter of law, there can be no liability (see, Johnson v. Jamai Hosp., 62 N.Y.2d 523, 528, 478 N.Y.S.2d 838, 467 N.E.2d 502). Inasmuch as the plaintiffs have failed to demonstrate the existence of a special relationship giving rise to a duty of care owed by the defendant, the complaint is without legal basis (see, Solomon v. City of New York, 66 N.Y.2d 1026, 499 N.Y.S.2d 392, 489 N.E.2d 1294).

The potentially deleterious ramifications of allowing the plaintiffs' claim are enormous. Stated succinctly, our dissenting colleagues would impose an unreasonable duty upon those who own or control property to guard against the wanton acts against passersby on the street by third persons over whom the former exert no control whatsoever. As per this mode of reasoning, owners of private residences could conceivably be held liable for injuries received by a pedestrian who is forced into an unlocked dwelling and assaulted there by a third-party trespasser. Similarly, liability may extend to owners of large tracts of land at some point on which there is an unlocked gate or an opening in a fence, for injuries sustained by a passerby at the hands of a criminal. To subject property owners to such boundless liability is, in our view, grossly unfair.

As Special Term has aptly stated, "a determination that the NYCHA was negligent in regard to the incident in question presupposes that their duty extends to any and all possible incidents (however remote) which might result in an individual taking advantage at any time, under any circumstances, of the fact that the NYCHA allowed a door to be unlocked in the early hours of the morning". To sustain the plaintiffs' claim under these circumstances is to set the groundwork for dangerous precedent,...