Is It the Duty of the Owner of a Property to Take Precautions Against Criminal Acts of a Third Party on His Property ?
In addressing the scope of a landowner's duty with respect to the criminal conduct of a third-party on the property, the court, in Nallen v. Helmsley-Spear, Inc. (supra, 50 NY2d, at 519), held, as follows:
Of course, a possessor of land, whether he be a landowner or a leaseholder, is not an insurer of the victim's safety.
Thus, even where there is an extensive history of criminal conduct on the premises, the possessor 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" (Restatement, Torts 2d, s 344, Comment f).
Only if such conditions are met may the possessor of land be obligated to "take precautions ... and to provide a reasonably sufficient number of servants to afford a reasonable protection"
"To establish foreseeability, the criminal conduct at issue must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location" (Novikova v. Greenbriar Owners Corp., supra, 258 AD2d, at 153).
In Novikova v. Greenbriar Owners Corp.,(258 A.D.2d 149, 694 N.Y.S.2d 445), the court, in addressing the duties of a landowner, stated, as follows:
Under the common law, the owner or possessor of property has the general duty to take reasonable measures to maintain his or her property in a reasonably safe way ... In Nallan v. Helmsley-Spear, Inc. [50 N.Y.2d 507, 429 N.Y.S.2d 606, 407 N.E.2d 451], the Court of Appeals first addressed the duty of an owner or possessor of property to take precautions against the criminal acts of third parties.
The Nallan court, citing to the Restatement, Torts 2d, 344, which defined the liability of an owner of business premises when there is a foreseeable danger of harm to visitors from the criminal acts of third parties, held that a "natural corollary" of the above-stated general common-law duty to maintain property in a reasonably safe condition was the "obligation to take reasonable precautionary measures to minimize the risk [of criminal acts] and make the premises safe for the visiting public" ...
In Miller v. State of New York, 62 N.Y.2d 506, 478 N.Y.S.2d 829, 467 N.E.2d 493 ... the court distilled the holding of Nallan as imposing on the owner or possessor of land "a duty to maintain minimal security measures, related to a specific building itself, in the face of foreseeable criminal intrusions upon tenants" (id., at 151).
In order to establish a prima facie case of negligence, a plaintiff must demonstrate:
(1) the existence of a duty on the defendant's part as to the plaintiff;
(2) a breach of this duty;
(3) an injury to the plaintiff as a result thereof ( Akins v. Glens Falls City School Dist., 53 N.Y.2d 325, 333, 441 N.Y.S.2d 644, 424 N.E.2d 531).
"In order to withstand summary judgment, a plaintiff need only raise a triable issue of fact regarding whether defendant's conduct proximately caused plaintiffs injuries" ( Burgos v. Aqueduct Realty Corp., 92 N.Y.2d 544,550).