Mall Stuck Because of Ancient Incidents (PA)

As a general rule, third-party criminal acts may be sufficiently unforeseeable to relieve the defendant of liability in a claim for negligence.  That overarching principle, however, appears to be slowly eroding in Pennsylvania where a strict adherence to the Restatement (Second) of Torts recently prompted a three-judge panel of the Superior Court to conclude that a single incident of criminality on a premises triggers the possessor’s duty to generally safeguard against third-party acts.

In the case of Young v. Prizm Asset Management Company, the plaintiff filed suit against a variety of entities involved in the operation of the Steamtown Mall in Lackawanna County, Pennsylvania, after she sustained injuries in an attempted car-jacking that occurred in the parking garage.  Specifically, the plaintiff contended that the Mall defendants unreasonably failed to prevent the attempted car-jacking even though a similar event had occurred at an adjacent leased parking lot years before she began her employment.  Ostensibly taking into account the isolation of this prior incident, the Lackawanna County trial court eventually granted summary judgment in favor of the Mall defendants, noting that they had no duty to prevent an unanticipated criminal assault in an area open to members of the general public.

In the appeal to the Superior Court that followed, the plaintiff argued that the trial court had erred in granting summary judgment because the Restatement (Second) of Torts imposes liability on land possessors for “physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons.”  In ultimately accepting the plaintiff’s premise, the Superior Court explained further that a land possessor’s duty to protect against third-party actions is triggered by prior notice of such actions without regard to the time or place of occurrence.  In fact, the Superior Court affirmed the notion that a duty to protect the entire property exists where the possessor merely “knows or may have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general [that] is likely to endanger the safety of a visitor.”  Consequently, the Superior Court found that the trial court had abused its discretion in granting summary judgment in favor of the defendants and reversed for further proceedings.

Although the core concept in Young may not come as much of a shock in Pennsylvania, the facts that underlie the decision are particularly disconcerting insofar as they suggest that one criminal or unlawful act by a third-party may be sufficient to impose liability on land possessors for their failure to reasonably protect against a wide array of unrelated incidents that may occur subsequently on the premises.

Thanks to Adam Gomez for his contribution to this post. If you have any questions or comments, please email Paul at pclark@wcmlaw.com.

Safety First: Pennsylvania Schools May Be Responsible for Students’ Criminal Acts

Recently, the Pennsylvania Superior Court held that a private college cannot escape civil liability for injuries caused by the criminal acts of its students where the institution voluntary assumed a “program of safety” that the community came to rely upon.

Specifically, in the case of Murray v. Albright College, student Patrick Murray was assaulted in the doorway of his dorm room after an authorized search of his floor mates’ dorm room revealed a loaded handgun, approximately one pound of marijuana, and surveillance equipment. Shortly after the search, which was conducted by Albright public safety officers, Murray began to receive threats from unknown individuals who suggested that he had “snitched” on his fellow students. The threats quickly turned to action when two unauthorized males were granted access to Patrick’s dorm by his floor mates, and brutally beat Murray.

In the lawsuit that followed against Albright, Murray and his parents contended that the college was liable for the criminal acts of its students to the extent that it failed to warn or prevent his attack. The trial court, however, disagreed with the Murrays’ contentions, and granted summary judgment to Albright on the basis that it could not reasonably foresee the criminal acts of its students.

On appeal, however, the Superior Court compared Murray’s residence on Albright’s campus to that of the relationship between landlord and tenant. Specifically, the Superior Court explained that, under Pennsylvania law, a landlord is not required to protect a tenant from criminal activity unless the landlord provides a “program of safety.” According to the Court, once a “program of safety” is deemed to exist, a landlord has voluntary assumed the duty to protect its tenant and is therefore exposed to liability for the criminal acts of third parties. Applied in the context of Murray’s attack, the Superior Court concluded that Albright’s student handbook required the college to report criminal violations such as the possession of marijuana to local authorities for prosecution. Given that Albright failed to adhere to this policy and did not involve the local authorities, the Court ultimately reversed, citing that a genuine issue of material fact existed as to whether the college’s omissions may have allowed the attacks to occur.

All told, the opinion in Murray speaks to the liability of landlords, generally, and educators, specifically, in respect of the criminal acts of third parties. As a result, both groups should remain mindful that, at least in Pennsylvania, the provision of additional safety measures may serve to increase, rather than detract from, a party’s ultimate exposure. As the saying goes, “no good deed goes unpunished.”

Thanks to Adam Gomez for his contribution to this post. If you have any questions, please email Paul at pclark@wcmlaw.com.

Not So Fast On Punitive Damages Award

The threat of punitive damages can be a “game changer” in a civil action. Subjective in nature, punitive damages are  akin to aiming a bazooka at a fly, with collateral damage inflicted on any defendant in harm’s way. In other words, a claim of punitive damages can transform an otherwise modest claim for compensatory damages into a high stakes, risky litigation.

The United States Supreme Court has spoken three times in the last fifteen years on the subject of punitive damages. Each time the Supreme Court has reduced jury awards for punitive damages and articulated general standards to judge their reasonableness.

Most recently, the Second Circuit Court of Appeals, the court hearing appeals from federal courts in New York, Connecticut and Vermont, weighed in on whether a punitive damages award that was five times larger than its companion compensatory award was excessive and should be reduced. In Payne v. Jones and City of Utica, a decorated Viet Nam veteran was transported to a local emergency room for treatment of a minor injury. Plaintiff was apparently suffering from Post Traumatic Stress Disorder and arrived “combative and disoriented.” The police responded to the hospital and the defendant officer, Brandon Jones, slapped plaintiff in the head while plaintiff was being examined by the paramedics. Consistent with the local protocol for dealing with mentally ill patients, plaintiff was handcuffed and transported to another hospital for further care.

At the second hospital, the defendant police officer noticed plaintiff’s Marine Corps tattoo and quipped, “Marines are pussies.” In response, plaintiff kicked the police officer in the groin area. Not a wise move particularly for a handcuffed prisoner: the police officer responded by punching the plaintiff in the face and neck 7-10 times and kneeing him in the back. The officer’s retaliation only stopped when a nursed intervened.

Plaintiff filed suit against both the police officer and his employer, the City of Utica, alleging that the officer used excessive force. At trial, the jury found in favor of plaintiff and awarded $60,000 in compensatory and $300,000 in punitive damages. On appeal, defendants challenged the punitive damages award as excessive.

In an opinion that should provide some comfort for defendants, the Second Circuit found the punitive damages award to be excessive and ordered it reduced to $100,000 or the case retried. Stressing that punitive damages are “by nature speculative, arbitrary approximations,” the Second Circuit ruled that the award for punitive damages failed each of the “guideposts” that must be cleared before a punitive damages award may stand.

The Payne decision is welcomed news for private companies and municipalities. Prevailing plaintiffs are certainly entitled to fair and reasonable compensation but, in these difficult economic times, punitive damages can strangle both local companies and governmental entities. Payne makes clear that the federal courts should – and do—take their roles as gatekeepers seriously when reviewing whether a punitive damages award may stand.

If you have any questions or comments about this post, please email Paul at pclark@wcmlaw.com

High Tech Security System Shields Homeowner’s Association In Assault Case (NY)

In Diaz v Sea Gate Assn., Inc, the plaintiffs were attacked in their home located within a private, gated community that was managed, maintained and controlled by the defendant homeowner’s association. The plaintiffs alleged that inadequate security at the two entrance gates of the community allowed the assailant to enter property and commit his crime.  In dismissing the plaintiff’s complaint, the Appellate Division found defendant established its entitlement to summary judgment by providing a detailed description of its key card system with surveillance cameras. With this system in place, the Court inferred that the assailant did not access the building from these entrances.

Thanks to Bill Kirrane for his contribution to this post.  If you have any questions, please email Paul at pclark@wcmlaw.com