PLAINTIFF ASSAULTED BY MAN WHO GRABBED DEFENDANT-CONTRACTOR'S POWER SAW; CONTRACTOR DENIED SUMMARY JUDGMENT--JURY TO SAY IF ASSAULT "FORESEEABLE"

Court: Supreme Court, Appellate Division, First Department, New York

Case: Steinberg v. New York City Transit Authority

Date: Oct. 25, 2011

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Bronx and Queens; Queens injury lawyer)

Comment: A general rule in our legal system is that someone can't be held liable (responsible) for the criminal acts of another. This legal rule turns on the criminal act being "unforeseeable." If the criminal's action could have been "foreseen," possibly someone else was at fault (negligent) for letting it happen. Such is the claim here.

Plaintiff sues for personal injury because he was assaulted by a man who grabbed one or more of defendant's power saws to assault him. Defendant, a contractor working for the New York City Transit authority, moved for summary judgment to dismiss it from the case (partially) because the plaintiff was the victim of a criminal act--which was not its fault.

The appeals court affirmed the lower court's denial of the contractors's request for summary judgment, noting that there was testimony that: (1) the man who assaulted plaintiff was standing around its tools beforehand and acting kind of crazy, and, (2) the tools should have been guarded anyway so no could steal them.

So now a jury gets to decide if the defendant/contractor was negligent.

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RELATED POSTS:

NO "NOTICE" OF RAISED RUG ON FLOOR; CASE DISMISSED ON DEFENSE SUMMARY JUDGMENT MOTION (Posted by Brooklyn injury lawyer Gary E. Rosenberg on Nov 5, 2011)

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Order, Supreme Court, New York County (Michael D. Stallman, J.), entered September 23, 2010, which, inter alia, denied defendant Five Star Electric Corp.'s motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

This negligence action arises out of a criminal assault on plaintiff Michael Steinberg as he entered a subway station. Defendant Tareyton Williams allegedly attacked plaintiff with battery‑operated reciprocating saws. He obtained the saws from a site where employees of Five Star (defendant) were performing work on the station's public address system.

Five Star does not enjoy governmental immunity. First, Five Star is a private contractor (see Matter of S.S. Silberblatt, Inc. v. Tax Commn. of State of N.Y., 5 N.Y.2d 635, 641 [1959], cert denied 361 U.S. 912 [1959]). Second, subway construction is proprietary, not governmental, in character (see Huerta v. New York City Tr. Auth., 290 A.D.2d 33, 38 [2001], appeal dismissed 98 N.Y.2d 643 [2002]; compare Altro v. Conrail, 130 A.D.2d 612, 613 [1987] [action alleging failure to allocate sufficient resources could not be maintained against MTA or against Conrail, which was performing "an essential governmental function for the MTA"]). Thus, the doctrine of governmental immunity would not apply in these circumstances.

Supreme Court correctly found that, as movant, defendant failed to show that it did not breach a duty to plaintiff. Defendant relied on hearsay testimony and accident reports submitted without an adequate foundation for their admission as business records (see Wen Ying Ji v. Rockrose Dev. Corp., 34 A.D.3d 253, 254 [2006]; compare Buckley v. J.A. Jones/GMO, 38 A.D.3d 461, 462-463 [2007]). In view of the testimony of defendant's foreman that it was necessary to safeguard the tools from theft and that defendant's other employees had seen Williams hovering around them, talking and yelling, it cannot be found as a matter of law that Williams's criminal acts were unforeseeable and therefore a superseding cause of plaintiff's injuries (see Bell v. Board of Educ. of City of N.Y ., 90 N.Y.2d 944 [1997]).

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