Colarossi v. University of Rochester

Appeal from an order of Supreme Court, Monroe County (Bergin, J.), entered October 3, 2002, which denied defendant’s motion for summary judgment dismissing the complaint. [1273] It is hereby ordered that the order so appealed from be and the same hereby is reversed on the law without costs, the motion is granted and the complaint is dismissed. Memorandum: Plaintiff, a student at defendant, University of Rochester, commenced this action seeking to recover damages for injuries he sustained when he was shot while on defendant’s campus by a person who was not a student there. Plaintiff alleges that defendant was negligent in failing to provide adequate security protection in the area of the campus where the incident occurred. Prior to the shooting, plaintiff and his friends had attended several parties hosted by various sororities and fraternities in a residential area of the campus commonly referred to as the fraternity quad. During the course of the evening, plaintiff observed a group of four young men at some of the parties who plaintiff believed were not students based upon their young age and demeanor. At approximately 1:40 a.m., one of those young men began yelling to plaintiff’s friend, who walked toward the group. Plaintiff observed one of the young men punch his friend and observed the group begin to close in around his friend, at which point plaintiff approached the group in order to intervene on his friend’s behalf. Although plaintiff later learned that one of the young men twice stated “Back off or I’ll pop you,” he did not himself hear the threat and was thereafter shot. There were 19 security officers patrolling the campus that night, eight of whom were part of a heightened security detail stationed approximately one quarter of a mile from the fraternity quad in an area where there had been a rash of robberies the previous week. Officers from that detail responded within 1 to 2 minutes to the call reporting the shooting. The security officer assigned to the fraternity quad area was in an office attending to paperwork at the time of the shooting. We conclude that Supreme Court erred in denying defendant’s motion for summary judgment dismissing the complaint. Defendant established its entitlement to judgment as a matter of law and plaintiff failed to raise an issue of fact whether any negligence on the part of defendant was a proximate cause of plaintiffs injuries. Even assuming, arguendo, that defendant owed a duty to plaintiff to protect him from the criminal behavior of others on the campus, and further assuming, arguendo, that defendant breached that duty by failing to provide adequate security measures, we conclude that any negligence on the part of defendant is not a proximate cause of plaintiff’s injuries. In opposition to defendant’s motion seeking summary judgment dismissing the complaint, plaintiff provided the affidavit of an expert stating that the “shooting was reasonably [1274] preventable if [defendant] had provided an adequate level of lighting . . . [and] better allocate [ed] limited personnel resources to patrolling the campus.” We conclude, however, that, because of its “highly speculative and conclusory nature,” the affidavit of plaintiffs expert is insufficient to raise an issue of fact with respect to proximate cause (Ascher v F. Garafolo Elec., 113 AD2d 728, 731-732 [1985], affd 67 NY2d 637 [1986]; cf. Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 521 [1980]). Although it is conceivable that a greater security presence may have prevented the incident, “conceivability is too slim a reed, standing alone, to support the conclusion that [defendant’s] alleged negligence proximately resulted in [plaintiffs] injuries” (Ascher, 113 AD2d at 732). Thus, plaintiff failed to raise an issue of fact with respect to proximate cause and we therefore reverse the order, grant defendant’s motion and dismiss the complaint. All concur except Hurlbutt, J.P., and Gorski, J., who dissent and vote to affirm in the following memorandum.