| Haire v Bonelli |
| 2013 NY Slip Op 04401 [107 AD3d 1204] |
| June 13, 2013 |
| Appellate Division, Third Department |
| Thomas Haire, Appellant, v Robert Bonelli Jr., Defendant,and The Pyramid Companies et al., Respondents. (Action No. 1.) Stephen Silk et al.,Appellants, v Robert Bonelli Jr., Defendant, andThe Pyramid Companies et al., Respondents. (Action No. 2.) |
—[*1] Basch & Keegan, LLP, Kingston (Derek J. Spada of counsel), for Stephen Silk andanother, appellants. Cerussi & Spring, PC, White Plains (Richard D. Bentzen of counsel), forrespondents.
[*2]Stein, J. Appeals from an order of the SupremeCourt (Ceresia Jr., J.), entered December 29, 2011 in Ulster County, which grantedcertain defendants' motions for summary judgment dismissing the complaints againstthem.
In February 2005, defendant Robert Bonelli Jr. entered defendant Hudson ValleyMall carrying a semiautomatic assault rifle and fired off approximately 60 rounds ofammunition. Plaintiff Thomas Haire suffered a gunshot wound to the leg and plaintiffStephen Silk was injured when he was struck by shrapnel.[FN1]Plaintiffs then commenced these two actions against the Mall and numerous individualsand entities associated with the Mall (hereinafter collectively referred to as defendants),as well as Bonelli.[FN2]Plaintiffs asserted, as relevant here, a cause of action sounding in negligence based upondefendants' failure to provide adequate security at the Mall. Defendants moved forsummary judgment dismissing the complaints against them claiming, among other things,that Bonelli's actions were not foreseeable and, therefore, they owed no duty to plaintiffsto provide security measures to prevent such actions. Supreme Court granted the motionsand dismissed both complaints against defendants. These appeals by plaintiffs ensued.
We affirm. Landowners have a duty to take reasonable precautions to secure theirpremises from foreseeable harm, including the foreseeable criminal acts of third partieson the premises (see Mason v U.E.S.S. Leasing Corp., 96 NY2d 875, 878[2001]; DeCrescente v CatholicCharities of the Diocese of Albany, 89 AD3d 1272, 1273 [2011], lvdismissed and denied 18 NY3d 943 [2012]; Six Anonymous Plaintiffs v Gehres, 68 AD3d 1177, 1178[2009], lv denied 14 NY3d 710 [2010]; Jenkins v Ehmer, 272 AD2d976, 976-977 [2000]). Criminal conduct is foreseeable if it was "reasonably predictablebased on the prior occurrence of the same or similar criminal activity at a locationsufficiently proximate to the subject location" (Six Anonymous Plaintiffs vGehres, 68 AD3d at 1178 [internal quotation marks and citation omitted]; seeMason v U.E.S.S. Leasing Corp., 96 NY2d at 878; Inger v PCK Dev. Co., LLC,97 AD3d 895, 897 [2012], lv denied 19 NY3d 816 [2012]; Ishmail v ATM Three, LLC,77 AD3d 790, 791-792 [2010], lv denied 16 NY3d 713 [2011]; Johnson v City of New York, 7AD3d 577, 578 [2004], lv denied 4 NY3d 702 [2004]). While the priorcriminal activity need not have been "at the exact location where [the] plaintiff washarmed or . . . of the same type of criminal conduct to which [the] plaintiffwas subjected," the inquiry of foreseeability depends upon "the location, nature andextent of those previous criminal activities and their similarity, proximity or otherrelationship to the crime in question" (Jacqueline S. v City of New York, 81NY2d 288, 294-295 [1993]). However, "even where there is an extensive history ofcriminal conduct on the [*3]premises, the [landowner]cannot be held to a duty to take protective measures unless it is shown that he [or she]either knows or has reason to know from past experience 'that there is a likelihood ofconduct on the part of third persons . . . which is likely to endanger thesafety of the visitor' " (Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 519 [1980],quoting Restatement [Second] of Torts § 344, Comment f). Althoughforeseeability is generally a question for resolution by the factfinder, it can be determined"as a matter of law where the relevant facts are undisputed and only one inference maybe drawn" therefrom (Elwood vAlpha Sigma Phi, Iota Ch. of Alpha Sigma Phi Fraternity, Inc., 62 AD3d 1074,1076 [2009], lv denied 13 NY3d 711 [2009]; see Ruiz v Griffin, 71 AD3d 1112, 1115 [2010]).
Here, defendants satisfied their threshold burden of establishing that Bonelli'scriminal conduct was not reasonably foreseeable. In support of their motions, defendantsproffered, among other things, the testimony of defendant Robert G. Harrington, thedirector of corporate security for defendant Pyramid Management Group, and defendantDaniel A. Theisen, the Mall's security director. Such testimony and other evidenceestablished that criminal activity at the Mall prior to this shooting had consisted of muchless serious offenses—primarily larceny offenses, disorderly conduct, trespass,robbery and motor vehicle incidents—and none had involved the discharge of afirearm. Physical altercations at the Mall occurred at an average of fewer than sixincidents per year and were typically between teens or involved domestic disputes(see Inger v PCK Dev. Co., LLC, 97 AD3d at 897). Nothing in the Mall's historyof criminal activity would have rendered Bonelli's conduct reasonably predictable(see Ishmail v ATM Three, LLC, 77 AD3d at 791-792). Further, Bonelli relatedto the police that he had chosen the Mall as the place where he would discharge hisweapon for no particular reason and that his plan was "spun in a matter of minutes."Based on this evidence, defendants made a prima facie showing that Bonelli's criminalconduct was not foreseeable, shifting the burden to plaintiffs to raise triable issues of fact(see Inger v PCK Dev. Co., LLC, 97 AD3d at 897; DeCrescente v CatholicCharities of the Diocese of Albany, 89 AD3d at 1274).
In opposition to the motion, Silk argued that the shooting was foreseeable because ofthe Mall's history of criminal and police activity, generally, as well as the fact thatBonelli was present in the Mall's parking lot—and allegedly parked in a loadingzone—for a period of time before he began shooting. However, in our view, noconnection was shown between the type of previous criminality at the Mall and Bonelli'srandom shooting spree, and no reasonable inference can be drawn that would establish asufficient similarity to prior incidents so as to render Bonelli's conduct foreseeable(see Six Anonymous Plaintiffs v Gehres, 68 AD3d at 1178; compare Ward v Pyramid Co. ofOnondaga, 11 AD3d 1012, 1013-1014 [2004]).
We also reject Haire's argument that the foreseeability of Bonelli's conduct wasestablished by the testimony of defendants' security personnel that they were aware ofmall shootings nationwide and acknowledged that a random mall shooting was apossibility at this Mall. When viewed in its proper context, this testimony demonstratednothing more than a general awareness of incidents of mall shootings in other locationsthroughout the country and an acknowledgment that such a random event could,conceivably, happen anywhere. Contrary to Haire's contention, it does not, in our view,equate to an admission by defendants that such an event was reasonably foreseeable, assuch term has been defined by the Court of Appeals (see generally Nallan vHelmsley-Spear, Inc., 50 NY2d at 519).
We are similarly unpersuaded that a prior shooting in a shopping mall operated bydefendant Pyramid Companies in another county rendered Bonelli's conduct foreseeable.[*4]Supreme Court properly determined that the locationof that shopping facility was not in sufficient proximity to the location of the incidenthere and that the nature and extent of the shootings in question were not sufficientlysimilar to put defendants on notice that a shooting was reasonably foreseeable at thisMall, particularly given the absence of any prior criminal activity of this nature there.
"Without evidentiary proof of notice of prior criminal activity, [defendants'] dutyreasonably to protect those using the premises from such activity never [arose]"(Ishmail v ATM Three, LLC, 77 AD3d at 792 [internal quotation marks andcitations omitted]). Thus, inasmuch as Bonelli's criminal conduct on the premises was notreasonably foreseeable (see Inger v PCK Dev. Co., LLC, 97 AD3d at 897), weneed not address the question of whether defendants' security measures were adequate orwhether the absence of additional security measures was a proximate cause of plaintiffs'injuries. Accordingly, we agree with Supreme Court's conclusion that defendants wereentitled to summary judgment dismissing the complaints.
We have examined defendants' remaining contentions and, to the extent they havenot been rendered academic by our decision, find them to be lacking in merit.
Rose and Egan Jr., JJ., concur.
Peters, P.J. (concurring). Seventy-two acres. Eighty-five stores. Three sit-downrestaurants. A 12-screen cinema. One security guard. These facts compel me to writeseparately to address the alarming state of the security measures at defendant HudsonValley Mall on the day of the shooting. Our conclusion that defendant Robert BonelliJr.'s specific criminal conduct was not foreseeable so as to ground legal liability does notmean that the security measures on Valentine's Day Eve were adequate for theforeseeable criminal conduct that the Mall experiences, or that security measures thatwould have been adequate for the circumstances and conditions of the Mall might nothave minimized the criminal event that took place on Sunday, February 13, 2005. Rather,security at the Mall on the day of the shooting was frighteningly inadequate.
Defendant Pyramid Management Group's own internal 2004 Security/Safety Audit ofthe Mall provides stark evidence of such inadequacy. As the audit summarizes, "HudsonValley Mall is a 765,000 square foot facility comprised of approximately 80 specialtystores, 5 anchor stores, 3 sit down restaurants, and a 12 screen cinema" on 72 acres. Thisreport observed that "the area does experience criminal activity which requires [the] Mallto maintain adequate security staffing levels." The policy goal for security at the Mallwas "to create an atmosphere of security omnipresence" both within and outside thefacility. As we observed when we affirmed his criminal conviction, Bonelli "entered acrowded Ulster County shopping mall with a semiautomatic assault rifle and engaged ina nine-minute shooting rampage" (People v Bonelli, 41 AD3d 972, 973 [2007], lvdenied 9 NY3d 921 [2007]), a rampage that finally ended when he ran out ofammunition and surrendered himself to a maintenance worker at the Mall. Prior to andduring the shooting, there was no security presence in the vicinity since the Mall had asingle security guard on duty who was tasked with securing both the inside andoutside of the premises.
The Security/Safety Audit also recommended the installation of a closed-circuittelevision system because, as the report noted, "The existence of this system alone canserve as a [*5]great criminal deterrent." In the years priorto the shooting incident, the Mall's security director requested a closed-circuit televisionsystem for the Mall on multiple occasions. Both the recommendation of theSecurity/Safety Audit and the multiple requests from the Mall's security director wentunheeded. Moreover, requests for additional security officers and increased securitypersonnel staffing were similarly rejected.
The record details shockingly inadequate security measures at the Mall. The Malldefendants should not conclude that the dismissal of this action reflects approval of theirsecurity protocol.
Ordered that the order is affirmed, with costs.
Footnote 1: Silk's daughter was withhim at the time of the shooting and, while not physically injured, sued for emotionalinjuries; his wife commenced a derivative claim.
Footnote 2: Bonelli has apparentlydefaulted and is not a subject of the order on appeal. For his actions, Bonelli wasarrested, charged and subsequently convicted of, among other things, two counts ofassault in the first degree. This Court affirmed his conviction (People v Bonelli, 41 AD3d972 [2007], lv denied 9 NY3d 921 [2007]).