| DeCrescente v Catholic Charities of the Diocese of Albany |
| 2011 NY Slip Op 07900 [89 AD3d 1272] |
| November 10, 2011 |
| Appellate Division, Third Department |
| Marilyn C. DeCrescente, Respondent, v Catholic Charities of theDiocese of Albany et al., Defendants and Third-Party Plaintiffs-Appellants. County of Washington etal., Third-Party Defendants-Respondents, et al., Third-Party Defendant. |
—[*1] William L. Nikas, Hudson Falls, for respondent. Towne, Ryan & Partners, P.C., Albany (Christopher R. Lyons of counsel), for County ofWashington, third-party defendant-respondent. Fitzgerald, Morris, Baker & Firth, Glens Falls (Jill E. O'Sullivan of counsel), for Fort EdwardVictorian, Inc., third-party defendant-respondent.
McCarthy, J. Appeal from an order of the Supreme Court (Krogmann, J.), entered July 19, 2010in Washington County, which, among other things, granted motions by third-party defendants County ofWashington and Fort Edward Victorian, Inc. for summary judgment dismissing the third-partycomplaint against them.
Defendant Catholic Charities of the Diocese of Albany and third-party defendant County ofWashington (hereinafter the County) entered into an agreement whereby Catholic Charities wouldprovide residential domestic violence services in the County. In October 1998, plaintiff contactedCatholic Charities seeking assistance as a result of domestic abuse by her husband. Defendant PattiGray Whann[FN1]was the Catholic Charities employee on call that weekend. Whann called plaintiff and learned thatplaintiff was afraid of her husband but did not have a safe place to go. Catholic Charities' shelter servingWashington and Warren Counties was full, so Whann informed plaintiff of a vacancy in the SaratogaCounty shelter. When plaintiff did not wish to leave the County, Whann sought an alternate temporaryplacement in a motel by calling a caseworker at the Washington County Department of Social Servicesfor approval. Whann obtained approval and found a vacancy at a motel operated by third-partydefendant Fort Edward Victorian, Inc. (hereinafter the Victorian), where the County had previouslyhoused individuals who were homeless or domestic violence victims.
Whann picked plaintiff up and drove her to the motel. During the drive, Whann offered to takeplaintiff, who was bruised and appeared to be intoxicated, to the hospital, but plaintiff declined. Whileplaintiff was alone in the motel room that evening, third-party defendant Percival F. Hayes knocked onher door. Assuming that Whann had returned, plaintiff opened the door without checking to see whowas outside. Hayes pushed his way into the room, then assaulted and raped plaintiff (see People vHayes, 295 AD2d 751 [2002], lv denied 98 NY2d 730 [2002]). When Whann returnedthe next morning, plaintiff informed her about the assault.
Plaintiff commenced this action against Catholic Charities and Whann, who then commenced athird-party action against the Victorian, the County and Hayes. The Victorian moved for summaryjudgment dismissing the third-party complaint, as did the County. Defendants cross-moved forsummary judgment dismissing plaintiff's complaint and the counterclaims of the Victorian and theCounty. Supreme Court granted the Victorian's and the County's motions dismissing the third-partycomplaint against them, but denied defendants' cross motion. Defendants appeal.
Supreme Court properly granted the Victorian's motion for summary judgment. Innkeepers andlandlords have a duty to exercise reasonable care and take minimal security precautions to protectguests and tenants from reasonably foreseeable harm, including foreseeable criminal acts of third partieson the premises (see Mason v U.E.S.S. Leasing Corp., 96 NY2d 875, 878 [2001]; Six Anonymous Plaintiffs v Gehres, 68AD3d 1177, 1178 [2009], lv denied 14 NY3d 710 [2010]). The Victorian submitted anaffidavit from its former owner explaining that, prior to Hayes' assault of plaintiff, the owner was neveraware of any criminal activity at the motel or any crimes committed against guests by other guests orintruders. Each room at the motel had a locking door and a curtained window next to the door, whichthe occupant could look through to see who was outside the door. As the Victorian established that ittook minimal security measures, the burden shifted to defendants to raise a triable issue of fact [*2]regarding whether the crime here was reasonably foreseeable based uponprior occurrences of similar criminal activity on the property or nearby and whether the Victoriansufficiently responded to provide adequate safety for its guests (see Six Anonymous Plaintiffs vGehres, 68 AD3d at 1178; Johnson vCity of New York, 7 AD3d 577, 577-578 [2004], lv denied 4 NY3d 702 [2004]).
While defendants argue that the security measures were inadequate—including the lack of apeephole, deadbolt lock, safety chain or even a telephone in the room to call for help—therecord lacks any proof of criminal activity on the motel premises or in the area. As the Victorian had nonotice of prior criminal activity, the attack by Hayes was not foreseeable. Under the circumstances, theVictorian took adequate security measures for its guests by providing a locking door and a window toview outside the door. Thus, Supreme Court properly determined that the Victorian could not be heldliable and granted its motion for summary judgment (see Maheshwari v City of New York, 2 NY3d 288, 295 [2004];compare Jenkins v Ehmer, 272 AD2d 976, 977 [2000]).
Supreme Court also properly granted the County's motion for summary judgment. A municipalitygenerally cannot be held liable for injuries to an individual due to the municipality's failure to protect thatindividual, because the duty to provide such protection is owed to the public at large; an exceptionexists where a special relationship has been formed between the municipality and the injured person (see Laratro v City of New York, 8 NY3d79, 82 [2006]; Mastroianni v County of Suffolk, 91 NY2d 198, 203 [1997]; Hanna v St. Lawrence County, 34 AD3d1146, 1147 [2006]). The elements of a special relationship include the municipality's assumption,by actions or promises, of an affirmative duty to protect the injured person, the municipality'sknowledge that failing to act could lead to harm, direct contact between the municipality's agents andthe injured person, and justifiable reliance by the person on the municipality's affirmative promise to act(see Cuffy v City of New York, 69 NY2d 255, 260 [1987]). Even assuming—withoutdeciding—that the first two elements could be found here, defendants did not establish the lasttwo elements. There was no direct contact between plaintiff and the County (see Kircher v City ofJamestown, 74 NY2d 251, 257 [1989]). Plaintiff contacted Catholic Charities, through its agentWhann, and Whann contacted the County's caseworker to get approval for a motel placement.Catholic Charities had a contract to act as the County's independent contractor for purposes ofproviding domestic violence services. The County's only obligation under the contract was to approveand provide payment for placements, and it provided approval here before knowing which motel wouldbe utilized. Based upon this lack of contact, it is unclear whether plaintiff was even aware that theCounty had any role in her placement in the motel (see Cuffy v City of New York, 69 NY2d at262). The record therefore lacks any proof that she relied upon the County to keep her safe. Asdefendants did not establish that a special relationship existed, the County was entitled to summaryjudgment dismissing the third-party complaint.[FN2][*3]
Supreme Court properly denied defendants' cross motion forsummary judgment. Defendants submitted the affidavit of an expert in the field of domestic violence,who opined that defendants' actions were consistent with Catholic Charities' domestic violence protocoland procedure manual, as well as state regulations. Plaintiff submitted an affidavit from a different expertwho attested to Whann's negligence in carrying out her duties, as well as flaws in Catholic Charities'procedures. Specifically, plaintiff's expert noted that Whann did not follow Catholic Charities'procedure for dealing with an intoxicated person who seeks services. Questions were also raised as towhether Whann complied with the procedure for selecting a motel placement, whether the Victorianshould have been considered as a placement for domestic abuse victims due to the lack of securityfeatures, and whether Whann checked the motel to see what security measures were in place beforeleaving plaintiff there. For example, Whann averred that she told plaintiff to call her on the domesticviolence hotline if any problems arose during the night, but she also told plaintiff not to leave the roomand there was no phone in the room.[FN3]
Although plaintiff may have acted negligently in opening the door without attempting to confirm whohad knocked, her actions go to comparative fault or at most raise a question as to whether this was anintervening act that would affect defendants' liability (see Mason v U.E.S.S. Leasing Corp., 96NY2d at 878). Similarly, Hayes' conduct was not, as a matter of law, an intervening act that absolveddefendants of liability. While no one may have expected a stranger to rape plaintiff, it was foreseeablethat someone (i.e., her husband) would find plaintiff at the motel and attack her. Because an attack onplaintiff was foreseeable, defendants are not relieved of liability simply because plaintiff was attacked bysomeone other than the person that they expected might harm her (see Dawn VV. v State of New York, 47 AD3d 1048, 1051 [2008][imposing liability where it was foreseeable that injury could occur, without requiring demonstration thatexact manner of incident was foreseeable]). Defendants undertook a duty to keep plaintiff safe, withknowledge that someone might be looking to harm her. Supreme Court properly denied summaryjudgment dismissing the complaint because questions of fact exist regarding whether defendants fulfilledtheir duty and whether plaintiff's injury was caused by any such breach of duty (see Pace v UnityHouse of R.C. Diocese of Albany, 167 AD2d 739, 741 [1990]).
Rose, J.P., Malone Jr., Kavanagh and Stein, JJ., concur. Ordered that the order is affirmed, withone bill of costs.
Footnote 1: While the pleadings list thisdefendant as Patty Gray Wahn, she signed her affidavit Patti Gray Whann.
Footnote 2: Although this Court has held that thedirect contact and reliance elements of the special relationship may be satisfied by a statutory schemeprotecting a limited class of people (see Boland v State of New York, 218 AD2d 235,242-243 [1996] [finding those elements satisfied through the statutory scheme to protect abused andmaltreated children]), the statute providing funding for emergency shelter services for domestic violencevictims does not constitute a legislative determination that counties have an affirmative duty to preventharm or injury to domestic abuse victims (see Social Services Law § 131-u).
Footnote 3: Plaintiff did not possess a cellphone. The incident took place in 1998, when personal cell phone ownership was uncommon.