In this criminal case, the Plaintiff is the mother of and Administratrix of the Estate of her deceased son. In April 2006, the son, who was age 17 at the time, was in the backyard of the premises visiting with his friend. The owner of the premises was the defendant.
A Queens County Criminal lawyer said that at approximately 1:50 p.m., while the son and his friend were working on a car in the backyard, the son was fatally shot by a gunman who approached the two boys in the backyard. When the police arrived on the scene, the son, who was still conscious, told the police that he was shot by someone who came up and shot him from the adjoining yard. He was taken to a Hospital where he was operated on for his gun shot wound. However, at 8:26 a.m. the next morning, he died, never regaining consciousness. An individual, who was not the shooter, was arrested that day for possession of a weapon which was kept in the residence. Five months later, the police arrested another individual and charged him with the murder of the deceased.
Thereafter, the mother individually, and on behalf of the Estate of his son, filed a summons and complaint against the owner of the property where her son was shot and against her daughter, as an owner or operator of the property, seeking monetary damages for negligence.
In the instant case counsel argues that defendant knew the house was unsafe because she removed her mother from the premises when her mother was attacked in the house and she feared for her mother’s safety. Counsel also points to defendants’ testimony in which there are several references to drug activity at the house, numerous calls to the police, transient people coming and going, and “lawlessness at the premises.” Counsel contends that the defendants failed to attempt to make the premises safe by commencing landlord-tenant eviction proceeds against the unwanted individuals.
Counsel concludes that “the subject premises had a history of illegal and criminal activity and even violence, and it was clearly foreseeable that additional violence and criminal activity could and would occur at the premises.” Counsel argues that this murder was not a random and unpreventable act of violence. Counsel contends that the admission of transients in and out of the premises with no control, drug lines outside the driveway, thefts, prostitution, a vicious assault on the homeowner, an unlicensed weapon found in the house, and calls to the police practically everyday, collectively give rise to the foreseeabilty that more violence would, and actually did, occur at the premises.
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.
“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'”.
Upon review and consideration of the defendant’s motion, the plaintiff’s affirmation in opposition and the defendant’s reply thereto this court finds that the defendant established, prima facie, that the conduct of the accused was not foreseeable. The deposition testimony and police reports submitted by the defendant are not sufficient to establish the foreseeabilty 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 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 and only newspaper speculation that it was the result of a drug deal gone bad.
Further, despite the allegations of drug dealing from the house, the victim’s 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.
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 plaintiff with respect to a complaints at Farmers Boulevard for criminal mischief, a complaint for child abandonment, a complaint for a US Army issued handgun with ammunition found on the premises and a complaint for a violation of an order of protection 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.
Although defendant did not cross-move for summary judgment, upon searching the record the complaint against the defendant is dismissed for the same reasons.
Accordingly, based upon the foregoing it is hereby, ORDERED, that the defendant’s motion for summary judgment is granted and the plaintiffs’ complaint with respect to the defendants is dismissed and it is further ORDERED, that the branch of the motion for an order dismissing the plaintiffs’ claim for punitive damages is denied as academic.
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