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ORTIZ v. NEW YORK CITY HOUS. AUTH.

October 19, 1998

HILDA ORTIZ, Plaintiff, against NEW YORK CITY HOUSING AUTHORITY, Defendant. NEW YORK CITY HOUSING AUTHORITY, Third-party plaintiff, -against- LAMONT HENRIQUES, Third-party defendant.


The opinion of the court was delivered by: BLOCK

MEMORANDUM AND ORDER

 BLOCK, District Judge:

 On December 26, 1992, plaintiff Hilda Ortiz ("Ortiz"), a 47-year old grandmother, was raped at gunpoint in the stairwell of her building in Brooklyn's low-income Cypress Hills housing project. Her attacker, Lamont Henriques ("Henriques"), was apprehended and pleaded guilty to the crime. Ortiz brought this lawsuit shortly after her attack, claiming, inter alia, that the failure of her landlord, defendant New York City Housing Authority ("Housing Authority"), to provide adequate security for her building, including the maintenance of a working lock on the outside door, was a proximate cause of Henriques' attack. Her claim was tried to a jury beginning on April 21, 1998. On April 29, 1998, the jury found that: (1) the Housing Authority failed to maintain the building in a reasonably safe condition; (2) this failure constituted negligence; and (3) the Housing Authority's negligence was a substantial factor in causing Ortiz's injuries. The jury also determined that the Housing Authority acted with reckless disregard for Ortiz's safety, and further determined that the Housing Authority was 60 percent responsible, and Henriques 40 percent responsible, for Ortiz's injuries. The jury awarded Ortiz $ 2 million as compensatory damages for her past pain and suffering and $ 1 million as compensatory damages for her future pain and suffering.

 Pending before the Court are the following motions by the Housing Authority: (1) a motion for judgment as a matter of law pursuant to Rule 50(b) of the Federal Rules of Civil Procedure on the ground that Ortiz's proof was insufficient on the issue of proximate cause; (2) a motion for a new trial pursuant to Rule 59(a) of the Federal Rules of Civil Procedure on the grounds that the jury's verdict was against the weight of the evidence and seriously erroneous, that the Court committed various errors during the trial, and that the jury's verdict was excessive; and (3) a motion for a stay of execution of the judgment with a waiver of the supersedeas bond required by Rule 62(d) of the Federal Rules of Civil Procedure.

 For the reasons that follow, the Housing Authority's motions pursuant to Rules 50(b) and 59(a) are denied in their entirety. However, the Housing Authority's motion for a stay of execution with a waiver of bond, which motion has not been opposed by Ortiz, is granted.

 I. MOTION FOR JUDGMENT AS A MATTER OF LAW

 At the close of Ortiz's case, the Housing Authority moved for judgment as a matter of law pursuant to Rule 50(a) of the Federal Rules of Civil Procedure, contending that: (1) Ortiz had not met her burden of demonstrating that Henriques was an intruder in the building on the night of the attack, which, under New York law, is an element of proximate cause in negligent security cases; (2) Ortiz had failed to introduce expert testimony on the issue of whether Henriques would have been deterred from attacking Ortiz by the existence of an adequate door lock; and (3) the Housing Authority had satisfied its common law duty to provide a minimal level of security by implementing a tenant patrol. The Court denied the Housing Authority's motion.

 At the close of all the evidence, the Housing Authority renewed its Rule 50(a) motion on the same grounds. Counsel also argued, for the first time, that the evidence established that Henriques was a stalker, and that his intentional conduct broke the chain of foreseeability under New York law, thereby absolving the Housing Authority of all liability for Ortiz's injuries. The Court reserved decision on this aspect of the Housing Authority's motion, and decided to send the entire case to the jury. After the jury returned its verdict, the Court denied the Housing Authority's Rule 50(a) motion in its entirety.

 On its renewed motion pursuant to Rule 50(b), the Housing Authority now argues: (1) Ortiz failed to prove that Henriques was an intruder; and (2) Ortiz failed to prove that a functioning lock would have deterred Henriques' attack.

 A. The Applicable Legal Standard for Judgment as a Matter of Law

 The same standard applies to a Rule 50(a) motion for judgment as a matter of law and a Rule 50(b) renewed motion for judgment as a matter of law. See Raspente v. National R.R. Passenger Corp., 111 F.3d 239, 241 n.3 (2d Cir. 1997). A motion under either section may be granted only if "the evidence, viewed in the light most favorable to the opposing party, is insufficient to permit a reasonable juror to find in [her] favor." Galdieri-Ambrosini v. National Realty and Dev. Corp., 136 F.3d 276, 289 (2d Cir. 1998); see also Vermont Plastics, Inc. v. Brine, Inc., 79 F.3d 272, 277 (2d Cir. 1996). The Court will only grant the motion if "there is such a complete absence of evidence supporting the verdict that the jury's finding could only have been the result of sheer surmise and conjecture, or if the evidence is so overwhelming that reasonable and fair-minded persons could only have reached the opposite result." Lambert v. Genesee Hosp., 10 F.3d 46, 53-54 (2d Cir. 1993); see also Galdieri-Ambrosini, 136 F.3d at 289. The Court "must give deference to all credibility determinations and reasonable inferences of the jury, and it may not itself weigh the credibility of witnesses or consider the weight of the evidence." Galdieri-Ambrosini, 136 F.3d at 289 (citing Vasbinder v. Ambach, 926 F.2d 1333, 1339-40 (2d Cir. 1991)).

 A Rule 50(b) motion "'is limited to those grounds that were specifically raised in the prior [Rule 50(a) motion].'" Galdieri-Ambrosini, 136 F.3d at 286 (quoting McCardle v. Haddad, 131 F.3d 43, 51 (2d Cir. 1997) (other internal quotations omitted)); see Fed. R. Civ. P. 50(b); see also Holmes v. United States, 85 F.3d 956, 962 (2d Cir. 1996); Lambert, 10 F.3d at 53-54. Pursuant to this specificity requirement, the Rule 50(a) motion "must at least identify the specific element that the defendant contends is insufficiently supported." Galdieri-Ambrosini, 136 F.3d at 286. The purpose of the specificity requirement is "'so that the responding party may seek to correct any overlooked deficiencies in the proof.'" Id. (quoting Fed. R. Civ. P. 50 Advisory Committee Note (1991)). Because the Housing Authority's Rule 50(b) motion relies upon arguments raised in its Rule 50(a) motion, the specificity requirement is satisfied here.

 B. Ortiz's Negligent Security Claim

 1. New York Case Law

 Under New York law, a landowner has a common law duty "to make the public areas of his property reasonably safe for those who might enter." Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 519, 407 N.E.2d 451, 458, 429 N.Y.S.2d 606, 613 (1980). "Under this standard, a landlord has a duty to maintain minimal security measures, related to a specific building itself, in the face of foreseeable criminal intrusion upon tenants." Miller v. State of New York, 62 N.Y.2d 506, 513, 467 N.E.2d 493, 497, 478 N.Y.S.2d 829, 833 (1984); see also Jacqueline S. v. City of New York, 81 N.Y.2d 288, 293-94, 614 N.E.2d 723, 725, 598 N.Y.S.2d 160, 162 (1993). The New York Court of Appeals has noted that "what safety precautions may reasonably be required of a landowner is almost always a question of fact for the jury." Nallan, 50 N.Y.2d at 520 n.8, 407 N.E.2d at 458, 429 N.Y.S.2d at 614.

 It is a tragic sign of the times in which we live that Ortiz's case is by no means unique. Indeed, New York courts have seemingly been inundated with similar negligence actions against the Housing Authority brought by residents of housing projects who have been victims of violent crime premised upon the Housing Authority's alleged failure to maintain working door locks in the projects. In assessing the viability of such claims, the following rule has emerged: "Insofar as [a] plaintiff predicates her claim on a lack of security, based on an allegedly broken entrance door lock, it is incumbent upon her, on the issue of proximate cause, to demonstrate that the assailant was an intruder and not one of the building residents or a guest thereof." Wright v. New York City Housing Auth., 208 A.D.2d 327, 330, 624 N.Y.S.2d 144, 145 (1st Dep't 1995); see also Woodley v. New York City Housing Auth., 244 A.D.2d 459, 664 N.Y.S.2d 485, 486 (2d Dep't 1997); Melville v. New York City Housing Auth., 242 A.D.2d 244, 245, 661 N.Y.S.2d 632, 634 (1st Dep't 1997); Rivera v. New York City Housing Auth., 239 A.D.2d 114, 115, 657 N.Y.S.2d 32, 33 (1st Dep't 1997); Tolliver v. New York City Housing Auth., 238 A.D.2d 187, 188, 655 N.Y.S.2d 534, 535 (1st Dep't 1997); Folks v. New York City Housing Auth., 227 A.D.2d 520, 521, 643 N.Y.S.2d 179, 180 (2d Dep't 1996). Thus, "'the failure to provide locks on outer doors is only pertinent as an alleged proximate cause if there is evidence to support a finding that the assailant was an intruder . . . with no right or privilege to be present there.'" Tolliver, 238 A.D.2d at 188, 655 N.Y.S.2d at 535 (quoting Dawson v. New York City Housing Auth., 203 A.D.2d 55, 610 N.Y.S.2d 28 (1st Dep't 1994)) (other internal quotations omitted).

 The courts have also held that the plaintiff must provide proof as to how the assailant entered the premises. "'Absent proof of how the perpetrator gained entry to the premises, any negligence claim premised on the theory that the defendant's inadequate security measures permitted the intruder to gain access to the premises necessarily involves speculation on the issue of proximate cause. . . ." Tolliver, 238 A.D.2d at 187-88, 655 N.Y.S.2d at 535 (quoting Maria S. v. Willow Enters., 234 A.D.2d 177, 651 N.Y.S.2d 486, 488 (1st Dep't 1996)); see also Woodley, A.D.2d at , 666 N.Y.S.2d at 486; Melville, 242 A.D.2d at 245, 661 N.Y.S.2d at 634; Rivera, 239 A.D.2d at 115, 657 N.Y.S.2d at 33.

 However, the Court notes that the New York Court of Appeals is currently considering five premises security cases that were resolved in the landlord's favor either on summary judgment or after trial, perhaps signaling a shift in the law that could make it easier for plaintiffs to establish liability. See Gomez v. New York City Housing Auth., 244 A.D.2d 459, 672 N.Y.S.2d 676 (1st Dep't 1998), lv. granted, N.Y.S.2d (1998); Cortes v. New York City Housing Auth., 244 A.D.2d 459, 664 N.Y.S.2d 582, lv. granted, 92 N.Y.2d 808 (1998); Hargett v. New York City Housing Auth., 244 A.D.2d 348, 664 N.Y.S.2d 459 (2d Dep't 1998), lv. granted, 92 N.Y.2d 804 (1998); Burgos v. Aqueduct Realty Corp., 245 A.D.2d 221, 666 N.Y.S.2d 640 (1st Dep't 1997), lv. granted, 671 N.Y.S.2d 649 (1st Dep't 1998); Price v. New York City Housing Auth., 244 A.D.2d 186, 664 N.Y.S.2d 9 (1st Dep't 1997), lv. granted, 91 N.Y.2d 808 (1998); see also Alan Kaminsky, Causation Issues: Court of Appeals Set to Consider Strict Rules for Liability, N.Y.L.J., October 14, 1998, at 5.

 Finally, the courts have also addressed the situation where there was a previous relationship between the victim and her assailant. In Tarter v. Schildkraut, 151 A.D.2d 414, 542 N.Y.S.2d 626 (1st Dep't 1989), the plaintiff's jilted lover followed her into the lobby of her apartment and shot her at point blank range. There was testimony adduced at trial that the outer door of plaintiff's apartment building did not function, that there had been various complaints about the condition of the lock, and that there had been previous instances of burglary and vandalism in the building. However, the Appellate Division determined that the landlord could not be held liable in negligence for the shooting because it was unforeseeable as a matter of law:

 
The conclusion is inescapable that plaintiff's ex-lover was intent on harming plaintiff. He had stalked her for that purpose. Given the motivation for the assault, his acts were truly extraordinary and unforeseeable and served to 'break the causal connection' between any negligence on the part of the defendants and the plaintiff's injuries.

 Tarter, 151 A.D.2d at 416, 542 N.Y.S.2d at 627-28 (quoting Derdiarian v. Felix Contr. Co., 51 N.Y.2d 308, 315, 414 N.E.2d 666, 670, 434 N.Y.S.2d 166, 169-70 (1980)); see also Harris v. New York City Housing Auth., 211 A.D.2d 616, 617, 621 N.Y.S.2d 105, 106 (2d Dep't 1995) ("The record reveals that Harris was the victim of a targeted murder by a long-time enemy who had tried to kill him on at least one prior occasion. Such an intentional act was an unforeseeable, intervening force which severed the causal nexus between the alleged negligence of the [Housing Authority] and the complained-of injury.").

 2. The Verdict and the Supporting Evidence

 In its charge, the Court instructed the jury that:

 
If you find that the Housing Authority was negligent, you must next consider whether the negligence was a substantial factor in causing Ortiz's injury. An act or failure to act is a substantial factor in bringing about an injury if a reasonable person would regard it as a cause of the injury. Now, I further instruct you that Henriques must have been an intruder, rather than one of [the] residents or a guest thereof of Ortiz's apartment building in order for you to determine that the Housing Authority's negligence was a substantial factor in causing Ortiz's injury.

 Trial Transcript ("Tr.") at 802. Included among the interrogatories presented to the jury on the Court's special verdict form was the following question: "Question 3. Was the Housing Authority's negligence in not maintaining the premises in a reasonably safe condition a substantial factor in causing Hilda Ortiz's injury?" The jury answered this question in the affirmative, thus implicitly concluding that Ortiz had proven that Henriques was an intruder, and not a guest or visitor in the building. Drawing all reasonable inferences in Ortiz's favor, as the Court must, the record clearly supports this determination.

 This case is readily distinguishable from most New York negligent security cases because of one critical fact -- Ortiz's assailant was apprehended, pleaded guilty to the crime, and gave several statements regarding the attack. Unlike those cases in which the plaintiff's assailant is not apprehended, the jury here heard Henriques' testimony and was read his previous statements. It was consequently not required to speculate regarding the circumstances giving rise to the attack and the manner in which Henriques entered Ortiz's building. Rather, the challenge for this jury was in determining which version of Henriques' testimony to credit because he changed his story several times.

 As the Housing Authority points out, Henriques testified on direct examination that he had entered Ortiz's building on the night of the attack in order to visit his friend Keith. However, Henriques admitted on cross-examination that in a May 22, 1996 deposition he testified that he had come into the building that night to visit his friend Shawn. He conceded, however, that neither Keith nor Shawn had invited him into the building that evening.

 But these were not the only reasons for Henriques' presence in the building that were placed before the jury. The jury was also read these other excerpts from Henriques' deposition:

 
Q. When you first saw Mrs. Ortiz, she was going into the building?
 
A. Yes.
 
Q. Were you the person involved in the assault of Ms. Ortiz?
 
A. Yes. * * * *
 
Q. When you first saw her, was she entering the building at 730 Euclid Avenue?
 
A. Yes.
 
Q. Were you outside the building on the sidewalk?
 
A. I was by the next building.
 
Q. And you followed her over to 730 Euclid Avenue?
 
A. Yes to 730.
 
Q. You saw her go into the building; isn't that correct?
 
A. Yes.
 
Q. And you waited until they got into the building and then you went into the building after then (sic)?
 
A. Yes, the doors were broken.
 
Q. The doors were broken leading into the building at 730 Euclid Avenue, the entrance doors?
 
A. All of the building doors are broken.
 
Q. You knew that before that evening?
 
A. Yes.
 
Q. How long, to your knowledge, had they been broken before that evening; weeks, months, days?
 
A. Ever since I've been living out there, the doors always been broken. They fix them one day, they be broken the next. They always stay broken.
 
Q. So after you saw Ms. Ortiz go into the building, the door closed behind her and you walked in after her because the door was broken.
 
A. Yes.* * * *
 
Q. Where do you live?
 
A. 1220 Sutter Avenue.
 
Q. Where is 212 (sic) Sutter Avenue in relation to 730 Euclid Avenue?
 
A. That is in the front of the projects.* * * *
 
Q. You saw her pass you on Sutter Avenue walking toward her house?
 
A. Yes.
 
Q. You followed her?
 
A. Yes.* * * *
 
Q. When you went up to the front door, to follow her inside the building, the front door was closed?
 
A. Yes.
 
Q. But the lock on the front door was broken?
 
A. Broken, there was nobody.
 
Q. You followed her into the building and she was assaulted by you in the building?
 
A. Yes.

 Tr. at 684-87.

 The jury was also read the following excerpt from Plaintiff's Exhibit 10, a statement given by Henriques on February 15, 1996 to an investigator retained by Ortiz:

 
I saw Hilda Ortiz walking by herself past my building. She went into her building. I waited until she entered the lobby of her building and when the front door closed I followed her. I went to the front door of the lobby. I knew that the locks on the lobby door were broken and I could just walk into the lobby.

 Tr. at 119. The jury was also advised that Henriques had been convicted of rape in 1986, and that he had raped another woman in a different building in the Cyprus Hills project only a month before he assaulted Ortiz.

 Henriques thus gave inconsistent versions of the circumstances leading up to the attack. The jury elected to credit his statements that he had been standing outside of his building on the night of the attack, had seen Ortiz pass by and enter her building, and had followed her into the building because he knew that the outside door lock was broken. The Court cannot interfere with the jury's determination in that regard since, as noted above, the Court is required to defer to the jury's "credibility determinations and reasonable inferences . . . [and] may not itself weigh the credibility of witnesses or consider the weight of the evidence." Galdieri-Ambrosini, 136 F.3d at 289. Moreover, the jury could properly have inferred from Henriques' commission of other sexual assaults, one in the same housing project only a month before Ortiz's rape, that his purpose in entering the building was to attack Ortiz. In sum, there was an adequate evidentiary basis for the jury's determination that Henriques "was an intruder . . . with no right or privilege to be present" in Ortiz's building. Tolliver, 238 A.D.2d at 188, 655 N.Y.S.2d at 535 (internal quotations omitted). Accordingly, the Housing Authority is not entitled to a new trial on the ground that Henriques was not an intruder.

 The Housing Authority also argues that Ortiz failed to demonstrate that a functioning lock would have prevented the assault. It maintains that Ortiz had an affirmative burden to produce expert testimony that a door lock would have deterred Henriques from entering the premises, noting that Henriques had a long criminal history and "has demonstrated, throughout his life, a certain callousness toward authority." Defendant's Memorandum of Law at pg. 8.

 This argument is similarly without merit. The Court does not read either the precedent cited by the Housing Authority in its brief, or Iannelli v. Powers, 114 A.D.2d 157, 498 N.Y.S.2d 377 (2d Dep't 1986), cited at trial, Tr. at 688-701, as imposing an absolute duty upon a plaintiff to produce testimony from a security expert or a criminologist on this issue as part of its burden of demonstrating proximate cause. Iannelli is easily distinguishable. Iannelli involved a fatal shooting by robbers in an office building. Although the building was kept locked when it was not open to the public, the decedent's assailant was let into the building before office hours by the employee of a tenant who had a key. The plaintiff contended that the landlord breached a duty to provide greater security, including competent guards to monitor building entrances and common areas, and alarms and other surveillance equipment. The court first noted that the robbery and shooting were not foreseeable because there was little prior evidence of criminal activity. Iannelli, 114 A.D.2d at 162-63, 498 N.Y.S.2d at 381. The court then stated that, even assuming that the crimes were foreseeable, the trial evidence did not support the jury's finding that the landlord did not satisfy its duty to take minimal safety precautions, citing Nallan, supra. Iannelli, 114 A.D.2d at 163, 498 N.Y.S.2d at 381. Under those circumstances, the court held that the plaintiff should have adduced testimony from a qualified expert in the field of building security; absent such testimony, "the jury was left to speculate regarding the deficiencies in security, if any, at the time of the incident, and what additional safety measures, if any, could reasonably have been undertaken by the [landlord] under the circumstances." Iannelli, 114 A.D.2d at 163, 498 N.Y.S.2d at 382.

 Here, by contrast, Ortiz alleged that her attack resulted from the Housing Authority's failure to provide either a working lock on the outside door of her building or any other security device. As will be set forth in greater detail below, there was extensive trial testimony indicating that the housing project, which consisted of 15 buildings housing between approximately 4,500 and 5,000 low-income tenants, was plagued by rampant acts of violence and drug-related crime. The consequences of a failure to maintain reasonable security in such an environment are certainly within the understanding of the average juror and do not require expert testimony. Moreover, Henriques' own testimony regarding his knowledge that the lock did not work ensured that the jurors would not need to speculate regarding the effect of the unlocked door upon the formation of his criminal intent.

 As for the other cases cited by the Housing Authority, it is true that they contain language indicating that the plaintiff must prove that a functioning lock would have prevented the assault. See Price, 244 A.D.2d at 186, 664 N.Y.S.2d at 9; Davis v. Jo-Ern Realty Corp., 239 A.D.2d 458, 662 N.Y.S.2d 769 (2d Dep't 1997); see also Melville, 242 A.D.2d at 245, 661 N.Y.S.2d at 634 (plaintiff must show that "but for the faulty security devices, the assailant would not have gained entry and committed the crime"); Harris, 211 A.D.2d at 617, 621 N.Y.S.2d at 106 ("There is no evidence that the assailant's entry onto the premises was due to the failure of the [Housing Authority] to install or maintain a lock on the front door."). However, the Court reads such language as simply another way of articulating the requirement that the plaintiff prove the manner in which the assailant entered the premises, consistent with the concern that, absent such proof, the jury would be required to speculate on the issue of proximate cause. See, e.g., Melville, 242 A.D.2d at 245, 661 N.Y.S.2d at 634. Significantly, none of these cases state or even imply that the plaintiff can only meet this burden through the introduction of expert testimony.

 Those portions of Henriques' deposition and trial testimony that were apparently credited by the jury may fairly be read as indicating that Henriques followed Ortiz into the building because he knew that the lock was broken. Thus, unlike the cases cited by the Housing Authority, there was testimony before the jury from the assailant himself regarding both the manner in which he entered the building and his knowledge that the outside door lock did not function. Accordingly, the Court finds that there was adequate evidence in the record to support the jury's finding of proximate cause, and determines that Ortiz's failure to call an expert on this issue does not require that the verdict be set aside.

 Finally, the Housing Authority argued at trial that Henriques was a stalker and that the Housing Authority could therefore not be held liable for his conduct, citing Tarter, supra. Although the Housing Authority does not press this argument in its renewed motion for judgment as a matter of law, the Court turns to it briefly. As noted above, the Appellate Division has indicated that evidence of a prior adversarial relationship between victim and assailant may sever the causal connection between the plaintiff's injuries and any negligence on the part of the landlord in respect to the implementation of security measures. See Harris, 211 A.D.2d at 617, 621 N.Y.S.2d at 106; Tarter, 151 A.D.2d at 416, 542 N.Y.S.2d at 627-28. However, the evidence of a prior relationship between Henriques and Ortiz was equivocal at best. Both Ortiz and Henriques testified at trial that they did not know each other before the attack. While Ortiz's goddaughter Kathy Martell ("Martell") testified that Ortiz had spoken to her in Spanish after the attack and told her that Henriques had previously threatened her, Ortiz denied this, stating that Martell "speaks a bad Spanish." Tr. at 370. The jury was ...


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