Mall's 'Minimal Precautions' Spare It Liability for Murder

The Case

On the night of June 3, 2006, Paul Despres, who had been a waiter at the mall's Ground Round restaurant for about two weeks, was arrested for driving while ability-impaired, and gave police a fake driver's license. Police later concluded that he became concerned that his deception would be discovered when someone in the car said Despres worked at the restaurant.

At about 12:45 a.m. on June 4, he went to the restaurant to retrieve his personnel file. Inger, a 42-year-old mother of three, was within 15 minutes of ending her shift at the empty mall. “Tragically,” the Third Department observed, Despres stabbed her to death. Employees found her body, which had 33 stab wounds, when they arrived at about 9 a.m. to open up the restaurant. According to plaintiffs, the lights were still on, and the juke box was still playing. Despres was killed a few weeks after the murder when he jumped out of a car after a party. Police focused on him as the killer based on bite marks on Inger.

Derek Spada of Basch & Keegan of Kingston argued for the estate that the mall had been plagued by “numerous crimes,” capped by the shooting in February 2005. Yet, he said, the mall had done “absolutely nothing” to improve security. In particular, he said that security cameras had not been installed at the entrances to the mall, including the Ground Round's separate exterior doorway.

“This is a crime that most likely would have been deterred simply by installing cameras on the exterior of the mall, and alternatively would have been interrupted if deterrence was unsuccessful,” Spada argued in his brief.

There was one security guard on duty at the time of the murder, who was tasked with patrolling the interior of the 765,000-square-foot mall and its surrounding property ' a total of 72 acres. Although Spada pointed out that the Ground Round was only accessible by going through the mall's property, the Third Department accepted the defendant's argument that it had no duty to supervise activity within the restaurant. It noted that mall security did not even have keys to the business.

The court acknowledged that PCK Development retained a duty to maintain the mall and its exterior for the safety of tenants, employees and patrons. But its duty was limited to taking reasonable steps to combat foreseeable harm, the court said. In that regard, it concluded that what happened to Inger was not “reasonably predictable.”

The panel pointed out that a security officer patrolled the property but saw nothing amiss. Moreover, “no similar assault had occurred in any of the tenant spaces leased at the mall, and ' apart from one shooting a year earlier in 2005, the criminal activity on the mall premises consisted of much less serious offenses, such as shoplifting, disorderly conduct and fist fights.” And the Inger estate's reliance on the 2005 shooting, which occurred under entirely different circumstances, was “unreasonable,” the court held.

In any case, the panel suggested that the presence of the cameras would not have prevented Inger's death. “We are unpersuaded that any breach of defendant's duty to monitor or police the mall's entrances is a proximate cause of decedent's death, given that the perpetrator did not enter through the mall and there is no evidence in the record of any forced entry. Instead, he apparently was admitted by decedent,” it observed in a footnote.

Richard D. Bentzen of Cerussi & Spring in White Plains, NY, who represented the mall, welcomed the decision as “a proper application of the law to the facts.” Bentzen said that the mall had no duty to install security cameras for the benefit of a single business and said that they would not have prevented the murder in any case. “Cameras do not prevent people from robbing banks,” he said in an interview.

Moreover, Despres was an employee of the restaurant, and Inger, its manager, who had the only keys, willingly admitted him. Anyone monitoring the business would not have noticed anything wrong, Bentzen said. He added that the mall's security arrangements met industry standards, and the plaintiffs had not presented evidence to the contrary.

Spada said in an interview that he was surprised by the ruling and would seek leave to appeal to the Court of Appeals. He said that he had brought forward an expert witness who had raised serious doubts about the adequacy of mall security that should be hashed out by a jury. Spada agreed that the circumstances of the shooting and the murder were different, but both “stemmed from the same problems ' very little security at the mall.”

Jeff Storey is a reporter for the New York Law Journal, an ALM sister publication of this newsletter, in which this article also appeared. He can be reached at [email protected].

Since the owners of an Ulster County, NY, mall took at least “minimal precautions to protect tenants from foreseeable harm,” they cannot be held liable for the brutal after-hours murder of the night manager of a restaurant, an upstate appellate court has held. A unanimous panel of the Appellate Division, Third Department, threw out a lawsuit filed by the estate of Sharon Inger against the Hudson Valley Mall near Kingston, NY. The ruling reversed a decision by the trial judge, who found that the duty of the mall to provide adequate security and the foreseeability of the murder presented issues of fact for a jury to ponder.

The appellate court rebuffed arguments that the mall's owners should have upgraded security after an incident on a Saturday afternoon more than a year before the 2006 murder when a man indiscriminately opened fire in a store and the mall's common area with a semi-automatic assault weapon, wounding two people.

“We find it unreasonable to suggest that this event was sufficient to put defendant on notice of a risk of an attack such as the one perpetrated against [Inger],” Justice Edward Spain wrote for the court in Inger v. PCK Development, 514216. “We hold, instead, that defendant did not owe a duty to [Inger], as a matter of law, to protect her from her assailant under the circumstances presented by this case.”

The Case

On the night of June 3, 2006, Paul Despres, who had been a waiter at the mall's Ground Round restaurant for about two weeks, was arrested for driving while ability-impaired, and gave police a fake driver's license. Police later concluded that he became concerned that his deception would be discovered when someone in the car said Despres worked at the restaurant.

At about 12:45 a.m. on June 4, he went to the restaurant to retrieve his personnel file. Inger, a 42-year-old mother of three, was within 15 minutes of ending her shift at the empty mall. “Tragically,” the Third Department observed, Despres stabbed her to death. Employees found her body, which had 33 stab wounds, when they arrived at about 9 a.m. to open up the restaurant. According to plaintiffs, the lights were still on, and the juke box was still playing. Despres was killed a few weeks after the murder when he jumped out of a car after a party. Police focused on him as the killer based on bite marks on Inger.

Derek Spada of Basch & Keegan of Kingston argued for the estate that the mall had been plagued by “numerous crimes,” capped by the shooting in February 2005. Yet, he said, the mall had done “absolutely nothing” to improve security. In particular, he said that security cameras had not been installed at the entrances to the mall, including the Ground Round's separate exterior doorway.

“This is a crime that most likely would have been deterred simply by installing cameras on the exterior of the mall, and alternatively would have been interrupted if deterrence was unsuccessful,” Spada argued in his brief.

There was one security guard on duty at the time of the murder, who was tasked with patrolling the interior of the 765,000-square-foot mall and its surrounding property ' a total of 72 acres. Although Spada pointed out that the Ground Round was only accessible by going through the mall's property, the Third Department accepted the defendant's argument that it had no duty to supervise activity within the restaurant. It noted that mall security did not even have keys to the business.

The court acknowledged that PCK Development retained a duty to maintain the mall and its exterior for the safety of tenants, employees and patrons. But its duty was limited to taking reasonable steps to combat foreseeable harm, the court said. In that regard, it concluded that what happened to Inger was not “reasonably predictable.”

The panel pointed out that a security officer patrolled the property but saw nothing amiss. Moreover, “no similar assault had occurred in any of the tenant spaces leased at the mall, and ' apart from one shooting a year earlier in 2005, the criminal activity on the mall premises consisted of much less serious offenses, such as shoplifting, disorderly conduct and fist fights.” And the Inger estate's reliance on the 2005 shooting, which occurred under entirely different circumstances, was “unreasonable,” the court held.

In any case, the panel suggested that the presence of the cameras would not have prevented Inger's death. “We are unpersuaded that any breach of defendant's duty to monitor or police the mall's entrances is a proximate cause of decedent's death, given that the perpetrator did not enter through the mall and there is no evidence in the record of any forced entry. Instead, he apparently was admitted by decedent,” it observed in a footnote.

Richard D. Bentzen of Cerussi & Spring in White Plains, NY, who represented the mall, welcomed the decision as “a proper application of the law to the facts.” Bentzen said that the mall had no duty to install security cameras for the benefit of a single business and said that they would not have prevented the murder in any case. “Cameras do not prevent people from robbing banks,” he said in an interview.

Moreover, Despres was an employee of the restaurant, and Inger, its manager, who had the only keys, willingly admitted him. Anyone monitoring the business would not have noticed anything wrong, Bentzen said. He added that the mall's security arrangements met industry standards, and the plaintiffs had not presented evidence to the contrary.

Spada said in an interview that he was surprised by the ruling and would seek leave to appeal to the Court of Appeals. He said that he had brought forward an expert witness who had raised serious doubts about the adequacy of mall security that should be hashed out by a jury. Spada agreed that the circumstances of the shooting and the murder were different, but both “stemmed from the same problems ' very little security at the mall.”

Jeff Storey is a reporter for the New York Law Journal, an ALM sister publication of this newsletter, in which this article also appeared. He can be reached at [email protected].