On 17 April 2006, the victim, age 17, was in a backyard located at Farmers Boulevard, Hollis, New York visiting with his friend. Defendant was the owner of the premises.
At approximately 1:50 p.m., while the victim and his friend were working on a car in the backyard, the victim was fatally shot by a gunman who approached them. A New York DWI Lawyer said when the police arrived on the scene, the victim was still conscious and told the police that he was shot by someone who came up and shot him from the adjoining yard.
Thereafter, the victim was taken to Mary Immaculate Hospital where he was operated for his gunshot wound. However, at 8:26 a.m. the next morning, he died, never regaining consciousness.
The mother of the victim was appointed to be the administratrix of the estate.
Meanwhile, someone, who was not the shooter, was arrested on the day the victim was shot for possession of a weapon which was kept in the residence.
On 25 September 2006, five months later, the police arrested another person and charged him with the murder of the victim.
A New York DWI Lawyer said that on 18 April 2008, the mother, individually, and on behalf of the estate of the victim, filed a summons and complaint against the owner of the property where the victim was shot and against her daughter, as an owner or operator of the property, seeking monetary damages for negligence.
The complaint asserts one cause of action for negligence; that the decedent’s (victim’s) death or the gun crime resulted from the negligence of the defendants in their ownership and/or operation of the premises; that as a proximate result of defendants’ acts of negligence, plaintiff has suffered damages in the amount estimated to be at least one million dollars ($1,000,000).
The complaint also requests for punitive damages.
On 22 September 2009, a verified bill of particulars was submitted and the plaintiffs claim that the property owner was negligent in the ownership of her premises in that she allowed and permitted non-residents to remain in the subject premises; she had knowledge of drug and criminal/unlawful activity or drug crimes which was occurring on her premises prior to and on 17 April 2006 and failed to take any measures to prevent unauthorized persons from residing therein; she permitted illegal criminal activity to occur at the premises and she failed to take any reasonable action to prevent the circumstances leading to the shooting death of the victim. A Nassau County DWI Lawyer said the plaintiff claims that the victim was an innocent bystander and that the assailant actually intended to shoot the victim’s friend.
Issues were joined. Defendant now moves for an order granting summary judgment on the issue of liability and dismissing the complaint against her.
Are defendants liable?
The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. The failure of the moving party to make such a prima facie showing requires denial of the motion regardless of the insufficiency of the opposing papers. Once the movant’s burden is met, the burden shifts to the opposing party to establish the existence of a material issue of fact.
On another note, a property owner, or one in possession or control of property, has a duty to take reasonable measures to control the foreseeable conduct of third parties on the property to prevent them from intentionally harming or creating an unreasonable risk of harm to others. This duty includes protecting parties on the property from foreseeable criminal conduct by a third person. This duty arises when there is an ability and opportunity to control such conduct, and is reasonably aware of the necessity for such control.
A property owner 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.
Here, upon review and consideration, the court finds that the defendant established, prima facie, that the conduct of the shooter was not foreseeable. The deposition testimony and police reports submitted by the defendant are not sufficient to establish the foreseeability of the shooting.
The courts have held that third-party criminal conduct is considered foreseeable as a matter of law where it is reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location.
Whether the prior criminal activity occurring within the subject premises provides sufficient evidence to establish that it is reasonably foreseeable that the tenants are at risk of harm depends on a variety of factors, including the location, nature and extent of those previous criminal activities and their similarity, proximity or other relationship to the crime in question.
Here, it is clear that even if the daughter’s testimony regarding drug sales, which was all based upon hearsay, was true, loitering by transients and people who didn’t belong in the house as well as suspected drug sales are insufficient to make the shooting a foreseeable event or to have put the owner on notice that there was a possibility of a violent shooting. There is no proof in the record as to the reason for the shooting but only newspaper speculations that it was the result of a drug deal that has gone bad.
Further, despite the allegations of drug dealing from the house, the shooting by an assailant who fired from an adjoining property was an unforeseeable and unexpected event which could not have been anticipated based on the level of criminal activity which was alleged at the house. The defendant had no reason to anticipate a possible shooting incident at the house. This event was not reasonably predictable as there were no prior occurrences of the same or similar criminal activity at the location. There was insufficient testimony of a history of physical violence or assaultive behavior other than one incident of a speculative assault on Johnson.
Moreover, the victim stated at the scene that he had been shot by an assailant (shooter) who was standing on an adjoining property. The fact that the assailant was not on the defendant’s property at the time of the shooting also demonstrates that the defendant did not have the ability nor the opportunity to control the spontaneous and unexpected criminal act of the shooter or an awareness of the need to do so.
Thus, defendant established prima facie, that she had no duty to protect against the unforeseeable and unexpected shooting from the adjoining yard.
In opposition to the defendants’ prima facie demonstration of entitlement to judgment as a matter of law, the plaintiffs failed to raise a triable issue of fact that the defendants had the ability and opportunity to control the unexpected shooting through the exercise of reasonable measures, and that the failure to have done so was a proximate cause of the injuries alleged.
Further, the police complaint reports submitted by the plaintiffs with respect to a complaints at 103-11 Farmers Boulevard for criminal mischief dated 5 January 2002, a complaint for child abandonment dated 27 March 2003, a complaint for a US Army issued handgun with ammunition found on the premises dated 7 August 2007 and a complaint for a violation of an order of protection dated 2 October 2002 are insufficient to have put defendants on notice or to raise a question of fact as to whether defendants should have anticipated a risk of harm from an act of violence or taken precautionary measures to protect against such an act or whether the owner knew or should have known of the probability of conduct on the part of a third party which was likely to endanger the safety of those lawfully on the premises.
Accordingly, the defendant’s motion for summary judgment is granted and the plaintiffs’ complaint against both defendants is dismissed; the branch of the motion for an order dismissing the plaintiffs’ claim for punitive damages is denied as academic.
The responsibilities of property owners do not only involve mere property rights but include the safety of all individuals who stay at the premises. However, not all injuries that occur within the premises equate to negligence on the part of the property owner to justify liability just like the abovementioned case. To know more, contact Stephen Bilkis & Associates and converse with our NY Criminal Attorneys or our NY Possession of a Weapon Attorneys.