Lax Security Won’t Sustain Mall Shooting Suit

     ALBANY, N.Y. (CN) – Two men shot at a mall where security was “shockingly inadequate” cannot sue the property’s onetime owner for negligence, an appeals court ruled.
     Thomas Haire and Stephen Silk were wounded when a man entered the shopper-filled Hudson Valley Mall in Kingston, N.Y., on the Sunday before Valentine’s Day in 2005 and fired off 60 rounds from a semiautomatic assault rifle in about nine minutes. A bullet hit Haire in the leg; shrapnel struck Silk.
     The shooter, Robert Bonelli Jr., surrendered to a maintenance worker after running out of ammunition. He pleaded guilty to an 18-count indictment that included assault, reckless endangerment and criminal possession of a weapon, and was sentenced to a combined 32 years in prison.
     Haire and Silk separately filed negligence complaints against The Pyramid Cos. of Syracuse as owner of the property. Pyramid, which no longer owns the mall, countered that Bonelli’s actions were not foreseeable.
     An Ulster County Supreme Court judge dismissed both complaints in 2011, and the Appellate Division’s Third Judicial Department affirmed Thursday.
     Property owners have a duty to protect their premises from foreseeable harm – even criminal acts by third parties – but, in the case of the Hudson Valley Mall shooting, “defendants satisfied their threshold burden of establishing that Bonelli’s criminal conduct was not reasonably foreseeable,” Justice Leslie Stein wrote for a four-judge panel in Albany.
     The five-page decision notes testimony by Pyramid’s director of corporate security, Robert Harrington, and the mall’s security director, Daniel Theisen, that criminal activity prior to the shooting typically involved disorderly conduct, larceny, trespass or physical altercations, such as teenagers fighting. None had involved the discharge of a firearm, according to the testimony.
     “Nothing in the mall’s history of criminal activity would have rendered Bonelli’s conduct reasonably predictable,” Stein wrote.
     What’s more, Bonelli told police he had no particular reason for choosing the mall, and hatched his plan at the last minute.
     “Based on this evidence, defendants made a prima facie showing that Bonelli’s criminal conduct was not foreseeable, shifting the burden to plaintiffs to raise triable issues of fact,” Stein wrote.
     Silk failed to show that general criminal activity at the mall should have made the shooting foreseeable, and the panel likewise nixed Haire’s contention that mall shootings in the news nationally should have raised awareness for Pyramid’s security personnel.
     “We are similarly unpersuaded that a prior shooting in a shopping mall operated by defendant Pyramid Cos. in another county rendered Bonelli’s conduct foreseeable,” the ruling states. Stein did not mention the other mall’s name.
     Emphasizing that “Bonelli’s criminal conduct on the premises was not reasonably foreseeable,” the justices said they “need not address the question of whether defendants’ security measures were adequate or whether the absence of additional security measures was a proximate cause of plaintiffs’ injuries.”
     Presiding Justice Karen Peters did just that, however, in a one-page concurring opinion.
     “Security at the mall on the day of the shooting was frighteningly inadequate,” Peters wrote, noting that just one security guard was responsible for the 765,000-square-foot mall’s 85 stores, three sit-down restaurants and 12-screen cinema on 72 acres.
     Clearing the mall of negligence with regard to Bonelli’s specific conduct “does not mean that the security measures on Valentine Day’s Eve were adequate for the foreseeable criminal conduct that the mall experiences or that security measures that would have been adequate for the circumstances and conditions of the mall might not have minimized the criminal event that took place on Sunday, Feb. 13, 2005,” she added.
     Peters cited an internal report by Pyramid in 2004 that had recommended installing a closed-circuit television system at the mall to serve as a deterrent to crime. The mall’s security director had also recommended such a system “on multiple occasions,” according to the opinion. Both requests went unanswered, as did requests for additional security officers, Peters added.
     “The record details shockingly inadequate security measures at the mall,” Peters wrote. “The mall defendants should not conclude that the dismissal of this action reflects approval of their security protocol.”
     Pyramid, which claims on its website to be the “largest privately owned developer of shopping centers in the Northeast,” owns and manages 13 malls in New York and four in Massachusetts that ring up $4 billion in annual sales.
     Hudson Valley Mall, which opened in 1981, is now owned by CBL & Associates Properties. The Chattanooga, Tenn.-based real estate investment trust owns or manages 130 malls and shopping centers in 29 states, according to its website.
     Justices Robert Rose and John Egan Jr. concurred with Stein and Peters.
     Steven Melley of Melley Platania in Rhinebeck argued for Haire. Derek Spada of Basch & Keegan in Kingston represented Silk. Richard Bentzen of Cerussi & Spring in White Plains represented Pyramid.

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