PREMISES SECURITY – REAR EXIT DOOR BROKEN SEXUAL ASSAULT OF INFANT – POST-TRAUMATIC STRESS DISORDER – SECOND TRIAL – JUDGMENT N.O.V. 1ST DEPT. DISMISSAL – COURT OF APPEALS REVERSES AND REINSTATES JURY VERDICT
Jury Verdict: $500,000
Breakdown: $250,000 for past pain and suffering; $250,000 for future pain and suffering (10 years).
Facts & Allegations: This was the second trial of this case, which arose out of an assault that occurred in April 1991. The first trial resulted in a defense verdict rendered on 9/8/94 when the jury found that the assailant did not enter through the rear door of an apartment building. Pltf. appealed the verdict. The Appellate Division First Department reversed the verdict and ordered a new trial on the rounds that a detective’s opinion “constituted impermissible conjecture and speculation, rendering it inadmissible.” Gomez v. NYCHA, 217 A.D.2d at 111.
The incident occurred on 4/20/91 at approximately 11:30 AM at the John Adams Housing Project on Tinton Ave. in the Bronx, which was owned and managed by Deft. Pltf., age 12 at the time, testified that she was waiting for the elevator in the lobby of the building when she saw the assailant enter the building through a rear exit door, which had been broken for a long time. Pltf. testified that the assailant followed her to the 18th floor where he accosted her, dragged her to the roof landing, and raped and sodomized her. Pltf. claimed that Deft. negligently failed to maintain the security in the building and failed to warn tenants of the criminal activity.
Deft. produced two witnesses who testified that Pltf. and the assailant knew one another and that they entered through the front door together. Pltf. argued that Deft. and the NYC Police Department investigated the case and that they had no records of these two witnesses of the incident. The records did not contain any indication and Pltf. knew her assailant. Deft. claimed that regardless of whether Pltf. knew her assailant or not, there was no evidence indicating that he was an intruder or someone authorized to enter the premises.
Injuries/Damages: Post-traumatic stress disorder.
Judgment N.O.V. In a 6-page decision dismissing the complaint, the court noted that Pltf. must prove not only the means of access, but also that the assailant was an intruder, and was neither a resident or a guest of a resident. The court noted that the perpetrator was never arrested or identified and that Pltf. relied on circumstantial evidence to establish that he was an intruder. Judge Green found, therefore, that the jury’s finding that the assailant was an intruder is based solely on speculation and surmise and cannot be sustained. He noted that while this is harsh, in that a victim will almost never be able to establish that the assailant is an intruder unless he is identified, which more often than not is not the case, it is the only reasonable result. Dec. at p.5.
1st Dept. Affirms Dismissal. The Appellate Division affirmed, agreeing that plaintiff’s testimony that she had never seen the assailant before or after the attack, the assailant’s lack of disguise and his flight from the building were “insufficient as a matter of law to prove that the assailant was an intruder” (Gomez v New York City Hous. Auth., 249 AD2d 175).
Court of Appeals Reverses and Reinstates Jury Verdict. In Gomez, the plaintiff-who knew most of the building residents by sight-another building resident and a frequent building visitor all testified that they did not recognize the assailant, who entered and left the building through the broken rear door and made no attempt to conceal his identity, even though there were several people in the lobby and elevator who could have identified him. Finally, when he entered the elevator, he did not push a button to select a floor. Based on this evidence, we cannot say that “there is simply no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion” that the assailant, who entered and left the building through a negligently maintained door, was an intruder (Cohen v Hallmark Cards, 45 NY2d 493, 499).