NY appeals court revives landlord liability assault case

In a split decision, a state appeals court has reinstated a lawsuit against the landlord of an apartment complex where she was sexually assaulted.

The defendant, Helio Health Inc., owns apartment buildings, including the building where the relevant incident happened, that provide supportive living services to help tenants recover from substance abuse and addiction.

Late one evening, the plaintiff, then a minor, and two of her friends, went to the apartment of one of the residents to buy and use drugs. While there, she was sexually assaulted by two residents and one former resident of the building.

The plaintiff filed a complaint against Helio and others alleging that Helio had a duty to supervise the conduct of the residents of its buildings, and to establish policies and procedures to prevent foreseeable harms, including child sexual abuse.

In October 2023, state Supreme Court Justice Robert E. Antonacci II, in Onondaga County, granted a motion for summary judgment from Helio, and dismissed the complaint against Helio.

The plaintiff appealed and, in a 3-2 vote, the Appellate Division of state Supreme Court, Fourth Department, reversed Antonacci’s decision and reinstated the complaint against Helio.

At the time of the sexual assault, two of the accused individuals were participants in Helio’s supportive living program. The third person had been recently discharged from the program.

“Landowners owe people on their property a duty of reasonable care under the circumstances to maintain their property in a safe condition,” the court wrote.

“As a corollary of that duty, landowners have the duty to protect tenants, patrons or invitees from foreseeable harm caused by the criminal conduct of others while they are on the premises,” the court wrote.

Landowners are not required to protect visitors from unforeseeable injuries, but “they do have a duty to control the conduct of third persons on their premises when they have the opportunity to control such persons and are reasonably aware of the need for such control,” the court wrote.

“We agree with plaintiff that residents of the supportive living program were not tenants over whom defendant had no control. We conclude that defendant had a legal duty to take appropriate action to protect against foreseeable harm, including a third party’s foreseeable criminal conduct,” the majority wrote.

The defendant’s court filings raised issues of fact regarding the foreseeability of the incident that occurred, according to the decision.

“It is for a jury to decide whether the incident was foreseeable and, if so, whether defendant failed to take reasonable actions to prevent the foreseeable harm,” the court wrote.

Presiding Justice Gerald J. Whalen and Justice Donald A. Greenwood dissented and voted to affirm Antonacci’s ruling.

While landowners have a common-law duty to minimize foreseeable dangers on their property, they are not insurers of a visitor’s safety, the minority wrote.

“Landowners have a duty to control the conduct of third persons on their premises when they have the opportunity to control such persons and are reasonably aware of the need for such control,” the minority wrote.

“In our view, defendant established as a matter of law, and plaintiff failed to raise an issue of fact, that the sexual assault on plaintiff by the residents and former resident of the building was not reasonably foreseeable,” the minority wrote.

“There is no evidence that the two residents and former resident had a history of assault or sexual misconduct, and there is no evidence that similar prior crimes had occurred at the buildings,” they wrote.

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