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CARL BASS v. CITY NEW YORK ET AL. (12/05/69)

SUPREME COURT OF NEW YORK, TRIAL TERM, KINGS COUNTY 1969.NY.43801 <http://www.versuslaw.com>; 305 N.Y.S.2d 801; 61 Misc. 2d 465 December 5, 1969 CARL BASS, AS ADMINISTRATOR OF THE ESTATE OF LOURDES R. BASS, DECEASED, PLAINTIFF,v.CITY OF NEW YORK ET AL., DEFENDANTS Ronald S. Goldfarb (Martin S. Rothman of counsel), for plaintiff. Francis P. Cunnion for New York City Housing Authority, defendant. Samuel S. Leibowitz, J. Author: Leibowitz


Samuel S. Leibowitz, J.

Author: Leibowitz

 In this death action, plaintiff's complaint is based upon two separate causes of action -- a survival cause for conscious pain and suffering, and the other for wrongful death. The action has been discontinued as against the City of New York leaving only the New York City Housing Authority as defendant. I find and decide that plaintiff, as administrator, is entitled to judgment against defendant, New York City Housing Authority, in the sum of $100,000 on the survival cause of action, and in the amount of $35,000 on the cause for wrongful death.

The parties to this action have waived a trial by jury and have submitted the matter for decision by the court upon an agreed statement of facts which has been dictated into the record. Counsel for both sides were additionally invited to submit any other facts pertinent to the issues by witness or other acceptable evidence.

The plaintiff is the administrator of the estate and was the father of Lourdes Regina Bass, a nine-year-old girl, now deceased, who lived with her parents in Farragut Houses, a housing project owned and operated by defendant, New York City Housing Authority. This project consisted of 10 buildings of 14 stories each in a 16-acre complex of roads, walks and other ancillary facilities.

On December 4, 1962, at approximately 12:30 p.m., Lourdes, a student at St. James Parochial School, having finished her lunch, was on her way back to school. She was seized near the rear entrance hall of the building by one James Rooks, a resident of another building in the same project. Rooks took the child to the roof of the building, stripped her of her clothing, and raped her. He then held her over the roof edge, suspended 14 stories above the street until she promised not to disclose the incident. When he replaced her on the roof, she broke away and Rooks pursued her. After a scuffle, he again seized her and again held her over the roof parapet. He shook her repeatedly and finally dropped her at approximately 12:55 p.m. She fell 14 stories to the pavement of the courtyard and died of resultant injuries.

Defendant Housing Authority, reputed to be the largest landlord in the world, and certainly in this country, is authorized by section 402 of the Public Housing Law, at its discretion, to provide and maintain a uniformed police force. Each member of such police force, pursuant to the terms of this section, is vested with all authority incidental to that of a peace officer and when on duty has "all the powers of a policeman of a city in the execution of criminal process." (Subd. 5.) The Housing Authority elected to assume the powers so permitted by law and organized a uniformed police force operating on its behalf in its various projects for the purposes directed by section 402 which, insofar as pertinent here, states: "Such department and force shall have the power and it shall be their duty, in and about housing facilities, to preserve the public peace, prevent crime, detect and arrest offenders, suppress riots, mobs and insurrections, disperse unlawful or dangerous assemblages and assemblages which obstruct free passage; protect the rights of persons and property; guard the public health; remove all nuisances; enforce and prevent violation of all laws and ordinances; and for these purposes to arrest all persons guilty of violating any law or ordinance."

It is conceded by defendant that on the day of the incident here, December 4, 1962, one housing police officer, Charles Howard, was assigned to this 10-building, 16-acre project. It is agreed also that he knew and was aware that there were elementary and junior high schools nearby and that children in the project came home for lunch between 12 and 1 each day. At the precise time when little Lourdes was seized, raped and then thrown to her death, this officer was at lunch. On the roofs of three of the buildings in the project were telephone call boxes connected with police headquarters. These telephones when in use activated whirling lights above. There was no such installation or arrangement or light on the building in which Lourdes lived. Officer Howard received his first notification of the crime through a call from his headquarters.

Counsel for both sides have agreed that prior to December 4, 1962, this one project had a history of crime ranging from malicious mischief to assault, rape and homicide, some of these incidents involving both adults and children. It has been stipulated by them that official records of complaints for three years prior to and including the year of the incident, include the following:

In 1960, malicious mischief, 133; assault, 61; burglary, 11; burglary tools, 1; robbery, 5; unlawful entry, 3; dangerous weapons, 2; larceny, 11; criminally receiving, 1; disorderly conduct, 30; vagrancy, 4; vice, 1; narcotics, 1; rape, 2. In 1961, arson, 1; assault, 59; burglary, 7; robbery, 5; homicide, 3; dangerous weapons, 3; larceny, 15; mail destruction, 12; malicious mischief, 48; disorderly conduct, 48; vagrancy, 3; rape, 1; sodomy, 1.

In 1962, rape, 2; robbery, 6; larceny, 8; burglaries, 5; homicide, 1; mischief, 31; assaults, 18; disorderly conduct, 58; narcotics, 3.

It is conceded also that on the very same day, one-half hour before Lourdes was attacked and murdered, a seven-year-old girl residing in the same building, was accosted in one of the elevators and taken to the basement. When her attacker attempted to remove her clothing, she broke away and escaped.

The issue here is obvious. What obligation did the defendant, Housing Authority, owe to its tenants to protect their lives, safety and property in the circumstances here shown? Concededly, the Housing Authority is a landlord charged at a minimum with the same responsibility of any other landlord in this city. In aid of that duty, the Authority was given powers beyond that of other landlords -- the right, if it so chose, to organize and maintain its own uniformed police force, to preserve the peace and protect the rights and lives of persons on the premises. It is a matter of record and common knowledge that the Authority did in fact elect to assume this power. Such a police force was organized and in existence at the time of the incident here. One of its members was assigned to duty in the project on that day.

Did the Authority by formation of its police force and assignment of its one officer to this project fulfill its legal obligation? Did it discharge all its duties reasonably required of it as a landlord in the circumstances? Having assumed authority permitted by statute to form such a police force, the assignment of just one of its members to this huge crime-ridden complex must be viewed as a bitter joke on its residents. I cannot see it as even a token response to the obligations thus assumed. The tenants of the project were without question lulled into a false sense of security by the occasional glimpse of a Housing Authority police uniform. These helpless, underprivileged people were entitled to know that they could not rely on their landlord for any form of protection. Armed with this stark reality, they had a choice. They could have made certain that little Lourdes was accompanied by a member of the family or a neighbor when she left the apartment. Perhaps they would have elected to stay in whatever ghetto from which they had originally come and which might have offered a degree of safety without the accoutrements of a modern housing project. I am informed by counsel for defendant that provision of an adequate police force in its various projects would have been an excessively heavy economic burden. My response to that argument is that it is high time that they assumed that burden. What system of mathematics can we use to balance financial limitations with the tortures suffered by this young soul during her half-hour ordeal? How can we equate a dollars and cents philosophy with the physical agonies suffered by her until a merciful death extinguished all pain in this defiled and broken body? Notice there was here in overwhelming measure. The number of recorded crimes in this one project brought to this court's attention reveal it as a lawless jungle, a paradise for criminals. Most startling of all, it is an acknowledged fact that one-half hour before the incident involving the Bass girl, another child, seven years of age, residing in the same building, just barely avoided a similar fate. Defendant takes no issue with these statistics, does not deny that it was the recipient of notice of these conditions in embarrassing abundance. It takes refuge in what it considers settled law -- that exposure of defenseless and innocent occupants in these projects to these hazards is a necessary concomitant to life in a housing project and that their potection is beyond its province and no part of its obligations. There was no question here whether there would be a robbery or a rape or an assault, or any other crime against person or property on an almost daily basis. The only question was who would be the next target.

This court is well aware that defendant is not an insurer of the personal safety or property of its tenants. But that simple proposition leaves open a host of situations which call for some reasonable measure of care and protection. I have no difficulty with the "reasonable" care mandated by tort law, which the situation here called for. At the time of the occurrence, there was ...


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