Is the Possibility of a Criminal Act Foreseeable As a Matter of Law ?

Any break in the nexus between the defendant's negligence (or the defectiveness of a product) and plaintiff's injury may affect the defendant's liability (Kush v. City of Buffalo, 59 NY2d 26, 33, 449 N.E.2d 725, 462 N.Y.S.2d 831 [1983]). "An intervening act will be deemed a superseding cause and will serve to relieve defendant of liability when the act is of such an extraordinary nature or so attenuates defendant's negligence from the ultimate injury that responsibility for the injury may not be reasonably attributed to the defendant" (id.). Even the "criminal intervention of third parties may . . . be a reasonably foreseeable consequence of circumstances created by the defendant"; the question is whether the "intervening, intentional act of another is itself the foreseeable harm that shapes the duty imposed" (Bell v. Board of Educ. of City of N.Y., 90 NY2d 944, 946, 947, 687 N.E.2d 1325, 665 N.Y.S.2d 42 [1997]). For instance, in Bell (90 NY2d 944, 687 N.E.2d 1325, 665 N.Y.S.2d 42, supra), a sixth-grade student sued the New York City Board of Education after she was raped on a class field trip, after she left the park where the field trip was being held and failed to return to the park by the departure time. The Court of Appeals held that the rape was not unforeseeable as a matter of law, and that a rational jury could have found that the school's failure to supervise the plaintiff was a substantial cause of her injuries (id. at 946-947). In Newman v. McDonald's Rests. of N.Y., Inc. (48 AD3d 1152, 850 N.Y.S.2d 771 [4th Dept 2008]) and Lopez v. Barrett T.B. Inc. (38 AD3d 1308, 833 N.Y.S.2d 340 [4th Dept 2007]), the plaintiffs were injured during robberies at restaurants owned and operated by the defendants. In both cases, the Fourth Department concluded, based on the defendants' past experiences, that the likelihood of criminal conduct was not unforeseeable as a matter of law (Newman, 48 AD3d at 1153; Lopez v. Barrett T.B. Inc., 38 AD3d at 1309). Similarly, in Kender v. Taj Mahal Hotel (234 A.D.2d 518, 651 N.Y.S.2d 913 [2d Dept 1996]), the court held that, given the history of prior criminal activity on the premises, it could not be said that the criminal conduct at issue was unforeseeable as a matter of law.