Intruder Gained Access Through Dumbwaiter Shaft

Tenant sued landlord for negligence after her son was killed and her daughter injured by an intruder who got into their apartment through the dumbwaiter shaft. Landlord asked the court to dismiss the case, arguing that it wasn't responsible for the intruder's criminal conduct. Tenant argued that landlord knew the intruder was living illegally in the basement. The dumbwaiter shaft was open from the basement to the roof. On the day of the attack, tenant's two children came home and heard the intruder inside the apartment. After he left, they went into the apartment and found the dumbwaiter door ripped off its hinges. They called the super, who told them to stay in the apartment and who temporarily nailed shut the dumbwaiter door in the apartment. Several minutes later, the intruder broke through the dumbwaiter door and stabbed tenant's son and injured her daughter. The court ruled that landlord wasn't liable for intruder's crimes, and dismissed the case. Tenant appealed, and the court ordered a trial to determine if the super was negligent in advising the children to stay in the apartment and not securely nailing the dumbwaiter door shut.

Johnson v. City of N.Y.: NYLJ, p. 32, col. 5 (10/17/94) (App. Div. 2 Dept.; Balletta, JP, O'Brien, Copertino, Florio, JJ)