The opinion of the court was delivered by: LOUIS L. STANTON
Plaintiff, who was assaulted on the eighty-fifth floor of the World Trade center, brought this negligence action against the security company and the lessee of the floor.
Defendants move for summary judgment pursuant to Fed.R.Civ.P. 56.
On October 15, 1990, at approximately five p.m., plaintiff completed her day's work as an employee of the Port Authority of New York and New Jersey, and boarded an elevator to descend from the eighty-sixth floor of the World Trade Center and begin her commute home. In the elevator, an unknown assailant grabbed her and dragged her onto the unoccupied eighty-fifth floor. According to the Complaint, plaintiff was then "beaten, molested, threatened, assaulted and placed in fear of death and great bodily harm, including rape." (Complaint P 4).
The eighty-fifth floor's sole tenant, Mitsubishi Bank (the "Bank"), had moved out of the space a year before the assault, leaving behind some equipment and furniture. After its move, the Bank experienced a series of criminal intrusions on the floor: it lost answering machines, surveillance cameras, bathroom fixtures and furniture to vandalism and theft. The Bank reported the incidents to Port Authority security director Anthony Coppolecchia who, in response, discontinued elevator service to the floor and installed a motion-detecting protective system.
On August 31, 1990, Daniel Ragan, a vice-president of the Bank, wrote to Mr. Coppolecchia, informing him that the Bank had found a subtenant and that the motion detection system should be disconnected permanently. (Transcript of Deposition of Anthony Coppolecchia dated November 5, 1992 at 33). Mr. Coppolecchia testified that the Bank also requested that elevator service be restored to the floor effective September 5, 1990, and that the elevator was servicing the floor through the date of the assault. (Id. at 36-38). The Bank contends that it requested elevator service only for one day, so that it could remove the remaining furniture. (Mitsubishi Bank's Statement pursuant to Local Rule 3(g) P 14).
Plaintiff claims that the Bank and City-Wide Security Services ("City-Wide"), which provides unarmed security guards to the World Trade Center, were negligent in failing to secure the vacant floor.
Defendants move for summary judgment.
To establish negligence under New York law, a plaintiff must prove: "(1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom." Solomon v. City of New York, 66 N.Y.2d 1026, 1027, 489 N.E.2d 1294, 1294, 499 N.Y.S.2d 392, 392 (1985). A person in possession of realty as an owner or a tenant is under a "duty to take reasonable precautionary measures to secure the premises if it has notice of a likelihood of criminal intrusions posing a threat to safety." Waters v. New York City Housing Authority, 69 N.Y.2d 225, 228, 505 N.E.2d 922, 923, 513 N.Y.S.2d 356, 357 (1987). That duty extends to those "who might reasonably be expected to be on the premises." Id. at 230, 505 N.E.2d at 924, 513 N.Y.S.2d at 358-59.
The Bank argues that it did not owe a duty to plaintiff, who worked on a different floor and for a different employer. It relies on Waters v. New York City Housing Authority, 69 N.Y.2d 225, 505 N.E.2d 922, 513 N.Y.S.2d 356 (1987), in which the New York Court of Appeals held that the owner of an apartment building, who had not kept the building's security system in good repair, could not be held liable in tort solely because the building was used to complete a crime that began on a public street. The plaintiff in that case "had no connection whatsoever to the building in which her injuries ultimately occurred." Id. at 228, 505 N.E.2d at 923, 513 N.Y.S.2d at 357-58. The court explained that a landowner's duty does not embrace the general public:
Although strict notions of privity are not dispositive in defining the scope of a landowner's duty, in this case both logic and public policy weigh heavily in favor of confining the scope of defendant landowner's duty to protect against criminal acts to tenants and others who might reasonably be expected to be on the premises. An important consideration in this context is the fact that the landowner has no control over either the acts of the primary wrongdoer or the conditions on the public byways that make such acts all too commonplace. Another significant factor is the virtually limitless ...