Winter v. Motel Associates of LaGuardia

• Decision Date: 26 February 1985
• Citation: 486 N.Y.S.2d 656,127 Misc.2d 486
• Parties: Gail Ann WINTER, Plaintiff, v. MOTEL ASSOCIATES OF LaGUARDIA, et al., Defendants.
• Court: New York Supreme Court

Page 656

486 N.Y.S.2d 656

127 Misc.2d 486

Gail Ann WINTER, Plaintiff, v. MOTEL ASSOCIATES OF LaGUARDIA, et al., Defendants.

Supreme Court, Special Term Queens County, Part 1.

Feb. 26, 1985.

Gigante & Maggiano, New York City, for plaintiff.

Leonard A. Sheft & Associates, New York City, for defendants.

FRED T. SANTUCCI, Justice.

In this action to recover for personal injuries occurring on the defendants' property, the plaintiff moves to compel disclosure and the defendants move for a protective order.

On the evening of September 24, 1981, the plaintiff was proceeding from her automobile in the defendants' parking lot to the defendants' hotel when she was criminally assaulted and robbed.

On May 30, 1984 the deposition of the defendants appearing by one, Martin Marsh was taken by the plaintiff. Upon the said deposition the witness refused to answer certain questions regarding prior criminal activities occurring in the area where the plaintiff claims she was assaulted.

The refused questions dealt with the following: (1) Prior criminal activities such as breaking into vehicles on the defendants' parking lot; (2) prior assaults on persons on the hotel premises; and (3) contact with the New York City Police Department with regard to assaults on the parking lot or on the grounds of the hotel.

The defendants move to quash the plaintiff's subpoena to take the deposition of the claims manager of American International Adjustment Co. and to direct him to produce all records or reports regarding the incident which is the subject of this lawsuit; records with regard to claims due to criminal activities within a two year period prior to the incident in question; and, records regarding security recommendations made to the defendants by any police agencies.

Whether the questions and records at issue are discoverable is dependent upon what the plaintiff must prove at trial.

"A possessor of land who holds it open to the public ... is subject to liability to members of the public while they are upon the land ... for physical harm caused by the [intentional] acts of third [parties] and by the failure of the possessor to exercise reasonable care to [a] discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it." (Restatement of Torts 2nd Edition Sections 344, 359, 360).

The owner of land has a duty to make reasonable provisions against theforeseeable danger resulting from intentional or criminal conduct. A breach of that duty would be negligence (see, Lillie v. Thompson, 332 U.S. 459, 68 S.Ct. 140, 92 L.Ed. 73) [emphasis supplied].

It is the general rule that liability on the part of a landowner will lie when a criminal act of the type which occurred was foreseeable and when the defendant's actions or omissions were, in light of that foreseeability, both unreasonable and a proximate cause of the plaintiff's injuries (see, Loeser v. Nathan Hale Gardens, 73 A.D.2d 187, 425 N.Y.S.2d 104). Landowners owe a standard of reasonable care under the circumstances whereby foreseeability shall be a measure of liability (Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868).

The plaintiff has the burden of proving that a violent assault upon the defendants' premises was reasonably foreseeable and that the defendants' conduct was unreasonable in proportion to that danger (see, Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99; Sherman v. Concourse Realty Corp., 47 A.D.2d 134, 365 N.Y.S.2d 239; Kenny v. Southeastern Pa. Transp. Auth., 3rd Cir., 581 F.2d 351).

Clearly, it appears to this court that evidence of prior criminal activity such as robberies and assaults which occurred at or upon the defendants' premises; the defendants' knowledge of such occurrences; what security recommendations were made; and, measures taken to counter or contain such activity would be necessary, needful, relevant and material to the prosecution of the plaintiff's action (see, Allen v. Crowell-Collier Publishing Co., 21 N.Y.2d 403, 288 N.Y.S.2d 449, 235 N.E.2d 430).

The plaintiff is entitled to obtain from the defendants disclosure of information regarding similar incidents or claims of negligence, regardless of whether the accidents or claims occurred or arose prior, or subsequent, to the incident in which the plaintiff was injured. (See, Carnibucci v. Marlin Firearms Co., 51 A.D.2d 1067, 380 N.Y.S.2d 807; Abrams v. Vaughan &...