Parking lot security questioned in Rock Festival Mishap: when is an accident foreseeable? – NRPA Law Review
James C. Kozlowski
Because an attack by a driver on someone standing in a parking lot isn’t a foreseeable event, those responsible for providing security in the parking lot can’t be held accountable for the incident, according to a New York court (Florman v. City of New York, N.Y. App. Div. 2002).
On July 11, 1996, Jill Florman was watching a fight in a parking lot outside of a stadium event when she was struck and injured by a vehicle driven by an unknown person. In her complaint, Florman, the plaintiff, alleged that her injuries were attributable to inadequate security in the parking areas surrounding the stadium. At the time of the incident, the stadium was hosting the Lollapalooza Festival, a touring music festival that featured 1990s alternative rock bands.
That afternoon, Florman, a female friend and two male friends drove to Randall’s Island to attend the Lollapalooza Festival, which was being presented at Downing Stadium by defendants Delsener/Slater Enterprises, Inc.; Ardee Festivals, Inc.; Ardee Productions, Ltd.; Beach Concerts Inc.; Broadway Concerts, Inc.; Ron Delsener and Mitch Slater (collectively Delsener), pursuant to a permit issued by New York City.
Florman and her friends did not have tickets but hoped to buy scalped tickets when they arrived. They parked their vehicle in one of the ball fields being used for parking and purchased tickets from an unidentified man. They remained for 30 or 40 minutes in the parking lot, tailgating with other friends whom they met, before heading for the stadium.
When they arrived at the gate, they learned that their tickets were counterfeit, so they were turned away. The group returned to the parking lot. Florman and her girlfriend found their car and stood a few feet in front of it, talking, while their two male friends, intent on finding the scalper, went looking for him. Florman then observed her two friends, about 200 feet away, initially yelling at the scalper and two other men, and, later, as the confrontation escalated, fighting with them. She watched for about four minutes.
According to her deposition testimony, her next recollection was of waking up in the hospital. She had not seen or heard any vehicle coming toward her. She later learned that a vehicle struck her and that, after hitting her, it had hit another member of the group.
According to Florman, her girlfriend later told her that the vehicle “came out from nowhere” and that she thought the driver was the scalper’s friend. Although her other friends thought the same, they were “not positive.” According to Florman, the police questioned the scalper and his friends, but were unable to ascertain the driver’s identity.
The City of New York, Delsener–the concert’s producer–and its subcontractors provided security for the event. Delsener hired a private company to provide security inside the stadium and had obtained the services of Country Club Services, Inc. and C.C.S. Parking, Inc. to manage and control vehicular parking. Before the concert, the Parks Department of the City of New York held at least one meeting, attended by Delsener, its subcontractors, representatives of the police and fire departments and other city agencies to discuss the logistics, including security, of holding such a concert.
Country Club had over 30 employees, including seven or eight managers, deployed in and around the ball fields. It was responsible for directing cars into parking spaces in an orderly fashion and taking the necessary precautions to avoid blocking parked vehicles. Its attendants, wearing security vests and equipped with lights, were also to assist patrons in finding their cars after the concert and getting safely to them. An estimated 20 officers from the Department of Parks & Recreation’s Park Enforcement Patrol (PEP) monitored the area outside the stadium, primarily the ball fields, to ensure the patrons’ observance of department rules and regulations. Some were assigned to look for illegal vendors.
The New York City Police Department also patrolled Randall’s Island on the day of the concert. Concerned primarily with the smooth flow of traffic on and off the island and the safety of the attendees, the police also patrolled the parking fields, maintaining a constant presence of 24 officers and three sergeants, mainly to prevent loitering and drinking and drug usage. In all, approximately 100 police officers patrolled Randall’s Island between 4:00 p.m. and 5:00 p.m. on the day of the concert.
The contract between the city and Delsener provided for Delsener’s use of Downing Stadium and additional areas on Randall’s Island and required Delsener “[a]t its sole cost and expense … to operate an efficient vehicular parking operation at no charge to the public” and to provide “sufficient trained security personnel as may be necessary … for the proper policing of the [s]tadium and additional facilities.”
Delsener had to prepare and submit for the approval of the Commissioner of the Department of Parks & Recreation an operations plan that included security in the parking fields from one hour before the start of the concert until two hours after the last performance. Another of the contract’s provisions required Delsener to “maintain close liaison with [PEP] and New York City police and cooperate with all efforts to remove disorderly patrons and illegal vendors from the [p]ermitted and surrounding [p]remises and to ensure the safety and protection of all persons and property.”
In her complaint, Florman alleged that her injuries were caused by the negligent failure of the city, the Department of Parks & Recreation and Delsener to take reasonable security precautions. Florman also named Country Club Services, Inc. and C.C.S. Parking, Inc. as defendants.
In response, Delsener claimed it was neither the owner nor the lessee of the premises. Accordingly, Delsener argued that it did not have a legal or contractual duty “to protect Florman from the criminal acts of third parties, of which, in any event, it had no prior notice.” Further, under the provisions of its contract with the city, Delsener contended that “the police department and PEP retained responsibility for patrolling the parking fields.”
Florman, however, maintained that “Delsener had specifically contracted to provide security personnel in the ballfields.” Moreover, Florman argued that these contractual obligations were “so wideranging” that Delsener had legal duty “to provide minimal security to safeguard her against the criminal acts of third parties.”
The trial court refused to grant Delsener’s and the city’s motions for summary judgment (which would effectively dismiss Florman’s negligence claims).
In refusing to grant Delsener’s motion for summary judgment, the trial court rejected Delsener’s argument that, “as a permittee, it had insufficient control over the premises to be subject to liability.” Instead, the trial court found that “Delsener was granted unrestricted use of the stadium and parking fields and thus stood in the shoes of an occupant or lessee of the premises who was subject to liability to third persons for failure to maintain the premises in a reasonably safe condition.”
Furthermore, the trial court found that Delsener’s legal duty “to maintain the parking area in a reasonably safe condition included providing minimal security against the foreseeable criminal acts of third parties.” The trial court also rejected Delsener’s claim of lack of prior notice. In the opinion of the trial court, Delsener’s contract with the city, which required Delsener to provide security both inside and outside of the stadium, “gave notice of a perceived risk.”
Delsener and the city had claimed that “any failures on their part were not the proximate cause of Florman’s injuries.” While acknowledging that “there were issues of fact with respect to Delsener’s responsibility for security in the parking fields,” the city contended that “any negligence on the part of the city or Delsener was not the proximate [i.e., legal] cause of Florman’s accident or injuries.”
The trial court disagreed, holding that “an attack in the parking lot was not an extraordinary, unforeseeable or superseding act that broke the causal nexus between defendants’ alleged inadequate security and Florman’s accident.”
Optimal Security Not Required
On appeal, Delsener and the city asserted that “the complaint should also be dismissed” because “Florman failed to raise a triable issue of fact as to foreseeability and proximate cause.”
At trial, Delsener had denied that it had any legal duty to provide security in the parking lot where Florman was injured. Specifically, under its contract with the city, Delsener maintained that its only contractual obligation with the city regarding security was to “submit an operations plan which included a plan for security.” According to Delsener, “there was no written plan; instead, a mutually agreed upon security plan, developed at interagency meetings held prior to the concert, required Delsener to provide security inside the stadium and at the gates along the perimeter of the stadium.” Under this scheme, Delsener claimed the city police and PEP had responsibility for security “beyond the stadium.”
The appeals court, however, found the trial record in this case indicated that Delsener was “obligated under the contract to provide security for all permitted facilities, including the parking areas.” Further, the appeals court found that Delsener had failed to prove that it was “relieved of this contractual obligation” to provide such security. Accordingly, the issue was whether Delsener had conformed to the applicable legal duty of care under the circumstances of this case.
As cited by the appeals court, a landlord or permittee like Delsener, with a contractual obligation to provide security, had a legal duty “to take minimal precautions to protect tenants and users of the facility from foreseeable harm, including the criminal conduct of third parties.” On the other hand, the appeals court noted that “this duty arises only when such party knows or has reason to know that there is a likelihood that third persons may endanger the safety of those lawfully on the premises, as where the landlord or permittee is aware of prior criminal activity on the premises.”
“[T]he possessor of land, be he landowner or leaseholder, is not an insurer of the safety of those who use his premises,” the court wrote. “Moreover, while a landowner must provide reasonable security measures, it need not provide optimal or the most advanced security system available.”
Applying these principles to the facts of the case, the appeals court found that Delsener provided reasonable security based upon its knowledge of prior criminal activity at such events. According to the court, “Delsener coordinated its security obligation with the Department of Parks & Recreation and the Police Department, which placed PEP personnel and police patrols in the ball fields used for parking. The emphasis, based on previous experience at stadium concerts, was on the interdiction of quality-of-life crimes, with emphasis on curtailing the consumption of alcohol and protecting parked vehicles against breakins.” The city and Delsener knew that the concert would attract a large crowd and a corresponding volume of vehicular traffic. Thus, they could reasonably anticipate that, absent adequate supervision and security, traffic accidents might occur.
Further, while noting that “the parties have proceeded on the basis that Florman was intentionally injured,” the appeals court found that “Florman’s claim that this was a criminal attack is, for the most part, speculative.”
Attack Not Foreseeable
Assuming that “the driver of the offending vehicle criminally assaulted Florman,” the appeals court also found these actions “were not a foreseeable consequence of Delsener’s alleged failure to provide adequate security.”
As noted by the appeals court, Florman had relied “on the contract provisions requiring Delsener to provide security in the parking areas” to provide “evidence of foreseeability.” The appeals court, however, found such evidence to be “clearly insufficient” to establish the foreseeable risk that “an incident such as the one at issue would occur.” The court continued:
Driving at high speed, recklessly or intentionally, into pedestrians
standing in a parking field near their parked car is not a danger
associated with crowd control and nothing in the record indicates that
defendants foresaw or had reason to foresee such an incident …
True, the city and Delsener knew that the concert would attract a large
crowd and a corresponding influx of vehicular traffic. Thus, it was
reasonably foreseeable that unless there were attendants regulating the
flow of traffic and facilitating the availability of parking spaces,
traffic jams and, worse yet, accidents could occur. In recognition of these
potential problems, the contract required that Delsener maintain a security
presence in the parking fields.
While it is not necessary to show that the prior criminal conduct is of the
same type or that it occurred in the same location, Florman must make a
showing that the incident was foreseeable. No such showing has been made.
[T]o infer from the security requirement with respect to the parking area
in this case that a driver would use his vehicle as a weapon to commit a
criminal assault on pedestrians would be an unreasonable and unwarranted
extension of the concept of foreseeability.
In addition, the appeals court found that Florman had failed “to establish that inadequate security was a proximate cause of her injuries.” According to the court:
It is difficult to understand what measures could have been undertaken to
prevent Florman’s injury except presumably to have had a security officer
posted at the precise location where the incident took place or wherever
pedestrians were gathered, surely an unreasonable burden.
Even then, it is doubtful that such a random act could have been prevented.
But even assuming a lapse in the security afforded in the parking lot,
Florman’s injuries are the result of the independent, intervening act of
the driver of the vehicle that did not flow from any lack of security …
Downing Stadium and its parking fields, part of a public park, cover a large area, sufficient to accommodate some 15,000 patrons. As the record shows, the city and Delsener undertook requisite security measures. Approximately 100 police officers were on duty at Randall’s Island, including 24 officers and three sergeants specifically assigned to the parking fields; approximately 20 PEP officers, working primarily in the parking fields, were also assigned to the event as were 30 employees of the parking subcontractor, all of whom were deployed in and around the ball fields.
Having found no evidence on the record of foreseeability or proximate cause, the appeals court determined that Florman’s complaint should be dismissed against Delsener and all the remaining defendants, including the City and Department of Parks and Recreation. (Before this appeal, the trial court had granted summary judgments to defendants Country Club Services, Inc. and C.C.S. Parking, Inc.)
Dr. Kozlowski is an associate professor in the health, fitness and recreation resources program at George Mason University, in Fairfax, Va., and legal/legislative counsel to the NRPA Division of Public Policy. His e-mail address is firstname.lastname@example.org.
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