Nallan v. Helmsley-Spear, Inc

In Nallan v. Helmsley-Spear, Inc. (50 N.Y.2d 507 [1980]), the Court held that a building owner had a duty to protect a plaintiff, who, familiar with the after hours security in a building, was shot in the lobby by an unknown assailant while the security attendant was absent. Although the assault occurred on the building premises, and not outside the building as in this case, the reasoning is instructive. The Court found that the building owner undertook to provide security, potentially placing the plaintiff in a more vulnerable position than if no security had been provided at all (id. at 522). The Court observed that plaintiff might show that, because he was familiar with the building's after hours procedures and expected that an attendant would be present, he was lulled into a false sense of security, and as a consequence, neglected to take the precautions he might otherwise have taken had the building owner never assumed the duty in the first instance. The Court of Appeals stated that a landlord must anticipate the risk of harmful acts of third persons. It followed the description of a landowner's duty of care in the Restatement (Second) of Torts, which provides that a landlord must exercise reasonable care to discover that such harmful acts are being done or are likely to be done, give an adequate warning, or otherwise protect the visitors against it. (Nallan v. Helmsley-Spear, Inc., supra at 519, quoting Restatement [Second] of Torts 344.) Thus, foreseeability was cast in terms of past experience--that is, that there is a likelihood of conduct by third parties which is likely to endanger the safety of visitors. (Id.)