author: Chief Judge Cooke. Meyer, J.

text:
    In the Matter of the Claim of Glenora Merchant, Respondent, v Pinkerton’s Inc. et al., Appellants. Workers’ Compensation Board, Respondent.
    Argued April 25, 1980;
    decided June 10, 1980

      POINTS OF COUNSEL

      Mark W. Hamburger and Marvin H. Mason for appellants.
    Substantial evidence supports the decision of the Workers’ Compensation Board that the decedent’s unauthorized carrying of a gun while on duty was a violation of a strictly enforced work rule and that the fatal injury that resulted therefrom did not arise out of and in the course of employment. (Matter of Feldman v A. B. C. Vending Corp., 12 NY2d 223; Matter of Yodakis v Smith & Sons Carpet Co., 193 App Div 150, 230 NY 593; Matter of Barrett v Al Charyn, Inc., 13 AD2d 863, 11 NY2d 849; Matter of Boggan v Abby Finishing Co., 11 AD2d 591; Matter of Hyatt v U. S. Rubber Reclaiming Co., 230 App Div 743, 256 NY 571; Burch v Ramapo Iron Works, 210 App Div 506; Ebberman v Walther & Co., 209 App Div 248; Matter of Price v Mergenthaler Linotype Co., 244 App Div 855; Knickman v Zurich Gen. Acc. & Liab. Ins. Co., 215 App Div 56; Matter of Greene v City of New York Dept. of Social Servs., 44 NY2d 322.)

      Frank S. Kedzielawa and Gerard R. Fornes for Glenora Merchant, respondent.
    A work-related injury caused by a violation of a strictly enforced work rule regulating the manner in which a job is performed arises out of and in the course of the employee’s employment. (Matter of Fox v Truslow & Fulle, 204 App Div 584, 236 NY 634; Matter of Burns v Merritt Eng. Co., 302 NY 131; Matter of Valenti v Valenti, 28 AD2d 572; Matter of Appleberry v Moskowitz, 50 AD2d 1001; Matter of Greene v City of New York Dept. of Social Servs., 44 NY2d 322.)
   OPINION OF THE COURT

Chief Judge Cooke.

The single issue presented is whether decedent’s disregard of his employer’s prohibition against carrying personal firearms on the job leads to the conclusion, as a matter of law, that his accidental shooting did not arise in and out of the course of his employment.

The operative facts are undisputed. On the morning of May 5, 1974, two boys playing in an industrial neighborhood discovered the decedent’s body, clothed in a Pinkerton guard uniform, lying on the ground near the loading dock of a Railway Express Agency terminal which he was assigned to guard. One bullet had been fired from decedent’s .22 caliber pistol found lying at his side. After an autopsy, the cause of death was determined to be a self-inflicted gunshot wound in the abdomen and was ruled an industrial accident.

At a hearing before a referee of the Workers’ Compensation Board, the employer and its compensation carrier contended that the accident did not arise out of the course of decedent’s employment based upon the existence of a work rule forbidding unarmed security guards from carrying firearms while on duty. When decedent was hired, some two months before the fatality, he signed an application acknowledging that he was forbidden to carry a firearm unless instructed to do so. Regulations of the employer provided that contravention of that rule would result in immediate discharge. On the day of the fatal accident, decedent was not permitted to be carrying a gun.

The referee found "accidental death * * * arising out of and in the course of employment and causally related thereto.” The Workers’ Compensation Board reversed and disallowed the claim stating that decedent’s unauthorized carrying of a gun while on duty constituted a violation of a strictly enforced work rule which rendered decedent, and consequently the accident, outside the course of his employment. A divided Appellate Division reversed the board on the law. There should be an affirmance. The crucial inquiry in these "work rule” cases focuses on the thrust of the rule itself, i.e., whether the rule defines what the employee’s duties are or merely how those duties are to be performed. In the former case, violation of the work rule will result in the employee’s acting outside the scope of his employment and any injury resulting therefrom will be noncompensable (e.g., Matter of Yodakis v Smith & Sons Carpet Co., 193 App Div 150, affd 230 NY 593). In the latter case, the opposite result will obtain (e.g., Matter of Fox v Truslow & Fulle, 204 App Div 584, affd 236 NY 634).

As a general rule, the misconduct of an employee, whether framed in terms of simple negligent dereliction of duty or even willful disobedience of the rules of the workplace, has no bearing upon whether an injury is compensable. Under the Workers’ Compensation Law, fault of the respective parties simply has no bearing to the basic test of coverage (see Matter of Granger v Urda, 44 NY2d 91, 97). Instead, with limited exception, the sole inquiry is whether the injury arose out of and in the course of employment (see Workers’ Compensation Law, § 21). If that inquiry be answered in the affirmative, compensation will be awarded the injured worker "without regard to fault as a cause of the injury” (Workers’ Compensation Law, § 10; see, also, § 2, subd 7). And, in keeping with the remedial purpose of compensation laws generally, the Workers’ Compensation Law is to be liberally construed "to accomplish the economic and humanitarian objects of the act” (Matter of Husted v Seneca Steel Serv., 41 NY2d 140, 145). Because of these general considerations, then, there has never developed a rule of general applicability to the effect that an employee forfeits his compensation coverage by performing his duties in a needlessly dangerous way or in conscious disregard of the employer’s instructions (1A Larson, Workmen’s Compensation Law, § 30.00).

The "work rule” cases proceed under this general premise. Simply stated, there is a crucial distinction between the job the claimant has been hired to perform and the manner in which the employee is to accomplish that task. Where the disobedience of a work rule results in the employee overstepping the boundaries defining the ultimate work to be done, the prohibited act is outside the course of employment and any claim for compensation arising therefrom will be denied. But when the misconduct involves a violation of the employer’s regulations or prohibitions relating to the method of accomplishing the ultimate work, however strictly enforced those regulations may be, the act remains within the course of employment. In such a case, disobedience of the prohibition does nothing more than establish fault on the part of the injured employee. Since fault concepts generally are immaterial to compensation law, violation of a work rule relating to the manner in which the job is to be accomplished does not result in an injured employee forfeiting the right to compensation (Matter of Greene v City of New York Dept. of Social Servs., 44 NY2d 322, 325-326; see Matter of Kilgore v Fragola, 14 AD2d 612; Matter of Macechko v Bowen Mfg. Co., 179 App Div 573, 575-576).

A simple example will serve to illustrate this distinction. The lathe operator engaged only to operate that machine will be deemed outside the scope of his employment when, in express contravention of his employer’s instructions, he operates a drill press to relieve boredom (see Matter of Rendino v Continental Can Co., 226 NY 565). In that situation, the work rule so restricts the sphere of employment in terms of permissible activities that its violation will constitute an abandonment of employment in which case compensation will be denied. On the other hand, that same operator is not outside the scope of his employment if, contrary to instructions, he uses his own tools, rather than those of the employer to operate the machine (see Matter of Greene v City of New York Dept. of Social Servs., 44 NY2d 322, supra; Matter of Fox v Truslow & Fulle, 204 App Div 584, 585, affd 236 NY 634, supra; Matter of Chila v New York Cent. R. R. Co., 251 App Div 575, affd 275 NY 585). The employee in this case is performing precisely the task he was engaged to do, albeit in a manner forbidden by the employer.

In the case at bar, the prohibition against carrying firearms was not one which limited the sphere of decedent’s employment, but simply dealt with the manner in which his duties were to be performed while on guard duty. This tragic accident did not occur by reason of decedent having arrogated to himself duties which he was forbidden to perform. Decedent was employed to carry out the duties of a security guard. He was engaging in that function when his gun accidentally discharged resulting in his death. While decedent disobeyed his employer’s injunction against carrying firearms, this prohibition restricted the manner in which decedent was to carry out his assigned employment rather than the nature of that employment itself. That decedent performed his duties in a manner prohibited by the employer did not, as a matter of law, remove decedent from the sphere of his employment.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Meyer, J.

(dissenting). Most respectfully I dissent. The order of the Appellate Division should be reversed, without costs, and the decision of the Workers’ Compensation Board disallowing the claim should be reinstated.

Decedent died of a gunshot wound in the abdomen inflicted by his own pistol which was found at his feet. It is undisputed that he was employed as an unarmed guard, that his employment application included the statement, which he signed, that he understood that he was forbidden to carry a firearm unless instructed to do so, that he was furnished with a copy of the employer’s regulations which provided in part that "no member of the guard force * * * shall be permitted to carry a revolver or any other weapon unless so authorized by the manager”, that "no guard may carry his personal weapon on duty” and that carrying an unauthorized weapon would result in discharge, and that the employer strictly enforced the rule. The compensation Judge held the injury accidental and work related, the compensation board reversed and the Appellate Division, by a divided court, reversed on the law.

The majority below viewed decedent’s violation of the no-weapon rule as restricting the manner of performance rather than its sphere. There is no question that decedent was engaged in the performance of the work for which he was employed as a matter of time and place. But there also is no question that the carrying of his personal revolver was not in furtherance of the employer’s business, and resulted from the employee’s having arrogated to himself a duty (the carrying of a firearm) which he was not only not required to but was forbidden to perform.

There is a crucial distinction between the "method” cases on which respondent relies and the instant case. In Matter of Greene v City of New York Dept. of Social Servs. (44 NY2d 322), for example, the employee used her personal vehicle contrary to regulation to go from one outside appointment to another. The injury which occurred when her vehicle collided with another could just as well have occurred had she used commercial transportation and getting from one appointment to another was a required part of her employment. The same can be said of the rules violated in Matter of Burns v Merritt Eng. Co. (302 NY 131), Matter of Fox v Truslow & Fulle (204 App Div 584, affd 236 NY 634) and Matter of Macechko v Bowen Mfg. Co. (179 App Div 573) upon which respondent relies, as well as in the example from which respondent argues of an employee bringing his personal tool to work in violation of a rule. Each involves a situation in which the employer had furnished a material which was misused or duplicated by the employee’s personal material and the accident could have as readily occurred had the furnished material been used.

Here the material which caused the injury was wholly forbidden. To say under those circumstances that the violation relates only to method, as the majority does, or as respondent urges, to apply the presumption of section 21 to hold the injury covered is to ignore that the instrumentality of injury would not have been present and no injury could have occurred at all had decedent not violated the rule. In the words of Judge Pound, in Matter of Heitz v Ruppert (218 NY 148, 152), the "injury must be received (1) while the workman is doing the duty he is employed to perform, and also (2) as a natural incident of the work.” An injury inflicted by a revolver carried by the employee in violation of the employer’s strictly enforced rule against carrying any firearm during employment is not a natural incident of the work.

Judges Jasen, Gabrielli, Wachtler and Fuchsberg concur with Chief Judge Cooke; Judge Meyer dissents and votes to reverse in a separate opinion in which Judge Jones concurs.

Order affirmed.

      . Burns is distinguishable also as a horseplay case, that being the major emphasis of the opinion.

      . Thus, the situation does not differ in any meaningful respect from the majority’s example of the lathe operator forbidden to operate a particular machine. The two are as tweedledum and tweedledee.


source: Caselaw Access Project

author:
      Per Curiam.
     Jones, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Stephen Feldman, Appellant.
    Argued April 29, 1980;
    decided June 10, 1980

      POINTS OF COUNSEL

      E. Stewart Jones, Jr., for appellant.
    I. The trial court’s refusal to charge the jury with respect to the issue of agency constituted reversible error. (People v Melendez, 57 AD2d 522; People v Rankin, 55 AD2d 826; People v Roche, 45 NY2d 78; People v Lam Lek Chong, 45 NY2d 64; People v Buster, 286 App Div 1141; People v Branch, 13 AD2d 714; People v Lindsey, 16 AD2d 805; People v Johnston, 47 AD2d 897; People v Robert "W.”, 47 AD2d 793.) II. Independent of the reversible error committed by the trial court in refusing to give the instruction on agency, the cumulative effect of certain additional procedural errors was such that Steven Feldman was denied a fair trial. (United States v Masino, 275 F2d 129; Government of Virgin Is. v Hendricks, 476 F2d 776; People v Smith, 285 App Div 590; People v Rencher, 49 AD2d 609; People v Conklin, 39 AD2d 160.)

      Sol Greenberg, District Attorney (F. Patrick Jeffers of counsel), for respondent.
    I. There was no error by the trial court in its refusal to charge the defense of agency. (People v Argibay, 45 NY2d 45; People v Lam Lek Chong, 45 NY2d 64; People v Roche, 45 NY2d 78; People v Weiss, 290 NY 160; People v Walker, 198 NY 329.) II. There were no errors which deprived defendant of a fair trial. (People v Smith, 285 App Div 590; People v Thompson, 37 AD2d 636; Government of Virgin Is. v Hendricks, 476 F2d 776; People v Crimmins, 36 NY2d 230; People v Marks, 6 NY2d 67; People v Arce, 42 NY2d 179.)
   OPINION OF THE COURT

Per Curiam.

Defendant appeals from an order of the Appellate Division, two Justices dissenting, which affirmed his conviction after a jury trial of criminal sale of a controlled substance in the third degree (Penal Law, § 220,39). At trial, the court refused defendant’s request to charge the jury on the agency defense on the ground that there was no reasonable view of the evidence from which the jury might conclude that, in engaging in the illicit transaction, defendant had acted solely as agent of the buyer. There should be a reversal and a new trial.

At trial, the essential testimony was furnished by the three principals to the transaction: undercover Officer Fargione, informant Bowe and the defendant. The People’s version of events, as related by Fargione and Bowe, was that the pair ventured to defendant’s apartment seeking to purchase one gram of cocaine as arranged earlier that day in a series of phone calls between defendant and Bowe. While Fargione waited in another room, defendant handed Bowe an envelope containing a white powder subsequently determined to contain cocaine. Bowe took some of the powder for himself and added kitchen flour supplied by defendant to the remainder before giving the package to the officer in the presence of defendant. Fargione then sought to hand defendant $125 for the drug, the price previously quoted by Bowe. Defendant rejected the tender, indicating that the money should be given to Bowe. The officer then gave the money to Bowe who immediately handed it to defendant in the officer’s presence.

Defendant’s version of the affair differed from that of Fargione and Bowe. Upon being importuned repeatedly by Bowe, defendant testified that he procured one gram of cocaine for $125 to accommodate his friend. When Bowe arrived at his apartment in the company of Fargione, defendant became concerned about the latter’s presence and dealt with Bowe alone while the officer waited in another room. He observed Bowe take some of the cocaine for himself, add flour to the remainder, whereupon he accepted $125 from Bowe in the absence of Fargione. Defendant related that this was the first time he had procured cocaine for another and that he made no profit and had no interest in the transaction.

The scope and ramifications of the agency defense have been fully discussed elsewhere and merit no repetition here (People v Argibay, 45 NY2d 45; People v Sierra, 45 NY2d 56; People v Lam Lek Chong, 45 NY2d 64; People v Roche, 45 NY2d 78; People v McLeod, 45 NY2d 95). For present purposes it suffices to note only that, in a prosecution for the sale of a controlled substance, a person who acts solely to accommodate the buyer acts as the alter ego of the recipient. Since the Penal Law does not impose criminal sanctions for the mere purchase of narcotics, the agent is held to the same degree of criminal liability as his principal from whom culpability is derived. Thus, where there is some reasonable view of the evidence which lends support to the claim that the defendant acted as an instrumentality of the buyer, upon a timely request, the court should instruct the jury on the agency defense.

In this case, failure to grant defendant’s timely request to charge agency constitutes reversible error. Defendant’s testimony raised the question of whether he simply purchased and delivered a small quantity of drugs solely to accommodate a friend without any commercial interest in promoting the transaction — the quintessential agency relationship (People v Argibay, supra; People v Roche, supra). That the drugs were subsequently transferred from Bowe to Fargione does not detract from this conclusion, for under defendant’s version of the facts, the two transfers were discrete transactions (see People v Roche, supra [where quantity of drugs sold lead inevitably to conclusion that they would be resold did not preclude use of agency defense]).

Nor is it material that the indictment charged defendant with selling the drugs to Fargione, not Bowe. Quite simply, the corpus delicti of the crime charged was the transfer of a controlled substance (Penal Law, § 220.00, subd 1); the person to whom that substance was transferred was immaterial to this conviction (see People v Cunningham, 48 NY2d 938, 940-941). True, as the dissent indicates, the indictment charged a sale to Fargione rather than to Bowe — at a specific time, date and place. However, the "[unassailable notions of due process and fundamental fairness” mentioned in the dissent did not prevent defendant from claiming a defense of agency based on proof contrary to the facts charged in the indictment, particularly where the person to whom the sale was allegedly made was not a material element of the crime charged (see, also, People v La Marca, 3 NY2d 452, 458-459). In these circumstances, given the admission by defendant of the transfer to Bowe, failure to charge agency was tantamount to a ruling that the transfer constituted a sale as a matter of law without putting the People to their burden of disproving an agency relationship. If, as claimed by defendant, he engaged in the transaction in the absence of malevolent motive to accommodate Bowe, he had no interest in the subsequent sale to Fargione. The People may not be permitted to deprive a defendant of the benefit of the agency defense by the simple expedient of charging him with a criminal sale to whomever might ultimately obtain the drugs.

For these reasons, the order of the Appellate Division should be reversed and a new trial ordered.

Jones, J.

(dissenting). The order of the Appellate Division should be affirmed for the reasons stated in the opinion of Mr. Justice T. Paul Kane in that court (69 AD2d 151).

It was charged in the indictment that "defendant did sell to one Detective Thomas Fargione, Albany Police Department, a quantity of the narcotic drug cocaine”. The trial court charged the jury that the People were required to prove beyond a reasonable doubt that defendant sold a narcotic drug "to Thomas Fargione, an undercover police officer”. It was the defense theory that defendant had made no such sale, that his handling of the drugs was solely, by way of accommodation, to assist the informer Ronald Bowe to obtain the drugs and for no other purpose, and that defendant had had no transaction with Detective Fargione. The defense request for an agency defense charge was orally predicated on the contention that defendant was Bowe’s agent. The Trial Judge denied the request to charge, stating: "I am not going to charge agency. It may well be that the defendant was the agent of Ronald Bowe in this transaction. However, the indictment charges the defendant with sale of a controlled substance to Officer Fargione and under any reasonable view of the evidence, this Court cannot see how an agency relationship exists between the defendant and the buyer.” Defense counsel excepted but advanced no exposition of any theory that defendant was Fargione’s agent. Specifically it was never then faintly intimated, as has now been asserted, that defendant might have been a subagent of Fargione, the buyer named in the indictment, through the intermediate agency of Bowe; defendant denied any relationship whatsoever with Fargione, direct or indirect.

The trial court should not be faulted in the appellate courts for not having foreseen a wholly novel construct or for failing to have divined defendant’s present subagency concept. Whatever would have been the legal consequence of the denial of a request incorporating such a construct or concept, it should be dispositive for present purposes that no such theory was ever advanced in the trial court.

The majority appear to conclude that, inasmuch as there was proof from which it could be determined that defendant, acted as agent of Bowe, he was entitled to an agency defense charge, notwithstanding the absence of any proof that defendant was agent of Fargione. This would be so if a conviction could have been based on a finding that defendant had made a sale to Bowe; to such a sale proof of such an agency would have been a defense. But defendant was not charged with selling to Bowe; the charge was sale to Fargione — if the jury found that defendant sold to Bowe and not to Fargione he was entitled to an acquittal; if, as proved to be the case, the jury found that defendant had sold to Fargione, any agency relationship with Bowe as principal would be legally irrelevant.

I find genuinely disturbing the suggestion in the majority opinion that an indictment alleging the sale of a controlled substance to a specifically named individual (here Detective Fargione) might be the jurisdictional predicate for conviction of sale to another individual (here Bowe): "Nor is it material that the indictment charged defendant with selling the drugs to Fargione, not Bowe. Quite simply, the corpus delicti of the crime charged was the transfer of a controlled substance * * * the person to whom that substance was transferred was immaterial to this conviction” (p 504). Unassailable notions of due process and fundamental fairness plainly dictate that a defendant be afforded notice of the precise charge against him. He cannot be convicted under an indictment charging sale to A by proof that he sold to B. Under no view could this be considered an immaterial variance from the indictment (cf. People v Cunningham, 48 NY2d 938, 940). Nor do I comprehend the suggestion that by charging defendant with having sold to Fargione the prosecution has somehow deprived defendant of his right to assert an agency defense to a sale to Bowe.

Chief Judge Cooke and Judges Wachtler, Fuchsberg and Meyer concur in Per Curiam opinion; Judge Jones dissents and votes to affirm in a separate opinion in which Judges Jasen and Gabrielli concur.

Order reversed, etc.


author: Gabrielli, J.

text:
    William Nallan et al., Appellants, v Helmsley-Spear, Inc., et al., Respondents.
    Argued April 29, 1980;
    decided June 10, 1980

      POINTS OF COUNSEL

      Joseph A. Suozzi, Morris Hirschhorn, Jeffrey G. Stark and Theodore H. Friedman for appellants.
    I. The holding of the court below that no prima facie case had been presented was predicated on two factual findings not mandated by the record. (Martin v City of Albany, 42 NY2d 13; Blum v Fresh Grown Preserve Corp., 292 NY 241; Cohen v Hallmark Cards, 45 NY2d 493; Dominguez v Manhattan & Bronx Surface Tr. Operating Auth., 46 NY2d 528; Sagorsky v Malyon, 307 NY 584; Townsend v Bell, 167 NY 462; Wragge v Lizza Asphalt Constr. Co., 17 NY2d 313; Maresca v Lake Motors, 32 AD2d 533, 25 NY2d 716; Kallenberg v Beth Israel Hosp., 45 AD2d 177, 37 NY2d 719.) II. The majority below ignored the issue of duty and improperly found that proximate cause and foreseeability should not have been submitted to the jury. (Palsgraf v Long Is. R. R. Co., 248 NY 339; Pulka v Edelman, 40 NY2d 781; Basso v Miller, 40 NY2d 233; Scurti v City of New York, 40 NY2d 433; Quinlan v Cecchini, 41 NY2d 686; Nicholson v Board of Educ., 36 NY2d 798; Mace v Ryder Truck Rental, 43 NY2d 814; Walton v Doyle, 9 NY2d 783; Sherman v Concourse Realty Corp., 47 AD2d 134; Meizlik v Benderson Dev. Co., 51 AD2d 676.) III. Neither the Bernal nor the Ventricelli case sustains the affirmance of the court below. (Bernal v Pinkerton’s, Inc., 52 AD2d 760, 41 NY2d 938; Ventricelli v Kinney System Rent A Car, 45 NY2d 950; Donohue v Erie County Sav. Bank, 285 NY 24; Bowers v City Bank Farmers Trust Co., 282 NY 442; Parnell v Holland Furnace Co., 234 App Div 567, 260 NY 604; Sheehan v City of New York, 40 NY2d 496; Rivera v City of New York, 11 NY2d 856.)

      Philip Hoffer, Raymond J. MacDonnell, Jerome Prince, Rose L. Hoffer and Peter T. Affatato for respondents.
    I. The judgment in favor of defendants should not be disturbed (a) because the jury found that an injury to plaintiff through the criminal acts of a third person was a nonforeseeable consequence of defendant’s employee’s negligence in leaving the lobby; (b) because the jury further found that the nature of the criminal acts in the vicinity and in the building did not require defendants, in the exercise of reasonable care, to have an attendant in the lobby at all times after 6:30 p.m. or that the lobby not be left unattended unless the front doors were locked. (Schuster v City of New York, 5 NY2d 75; Martinez v Lazaroff, 48 NY2d 819; Basso v Miller, 40 NY2d 233; Palsgraf v Long Is. R. R. Co., 248 NY 339; Sheehan v City of New York, 40 NY2d 496; Ventricelli v Kinney System Rent A Car, 45 NY2d 950; Rivera v City of New York, 11 NY2d 856; Danbois v New York Cent. R. R. Co., 12 NY2d 234; Bruto v Herman & Assoc., 64 AD2d 844; Benenson v National Sur. Co., 260 NY 299.) II. The issue of contributory negligence was properly submitted for the jury’s consideration. (Wartels v County Asphalt, 29 NY2d 372; Nelson v Nygren, 259 NY 71; Kulaga v State of New York, 37 AD2d 58, 31 NY2d 756; Velez v Craine & Clark Lbr. Corp., 33 NY2d 117; Karen v Hans, 32 Misc 2d 894; Kellegher v Forty-Second St., Manhattanville & St. Nicholas Ave. R. R. Co., 171 NY 309; McGrath v Abramowski, 35 AD2d 669; Olsen v Chase Manhattan Bank, 10 AD2d 539, 9 NY2d 829; De Visser v Mitchell, 35 AD2d 963; Tannenbaum v Mandell, 51 AD2d 593.)
   OPINION OF THE COURT

Gabrielli, J.

At about 7:15 p.m. on the evening of September 30, 1969, plaintiff William Nallan was shot in the back by an unknown assailant as he leaned over to sign a guest register that had been placed on a desk located in the lobby of a midtown Manhattan office building owned and operated by defendants. It is assumed by all parties that the assailant, who has never been caught, was a would-be assassin whose purpose was to retaliate against Nallan for his efforts to uncover certain corrupt practices in the labor union in which Nallan was an active member. Nallan ultimately recovered from his wounds, and, some time thereafter, he and his wife commenced the instant negligence action against the building owner and manager, seeking recompense for his personal injuries and her loss of services. On this appeal from an order of the Appellate Division, which affirmed a judgment in favor of defendants, the sole question presented is whether the facts adduced at the trial were sufficient to establish a prima facie case of negligence against the two defendants. For the reasons that follow, we conclude that a prima facie case in negligence was made out, and, accordingly, we hold that plaintiffs are entitled to have their complaint reinstated and that a new trial should be had.

At the first trial, plaintiff William Nallan testified that he had been an officer in Theatrical Local 52 of the International Alliance of Theatrical and Stage Employees for several years. In the months preceding the shooting, according to Nallan, he had begun to make inquiries about certain irregularities in the union’s practices which, he suspected, were indicative of internal corruption. Following these inquiries, Nallan received word of two separate incidents, which he interpreted as thinly veiled threats upon his life. These incidents were reported to the police, but no additional information emerged as a result of the police investigation, and, consequently, Nallan apparently assumed that he was no longer in any serious danger.

On the evening of September 30, 1969, Nallan arrived at the Fisk Building located at 250 West 57th Street in Manhattan, where a regular business meeting of the union was scheduled to be held. After entering the building through the front door, Nallan immediately proceeded to the sign-in book which had been placed on a desk in the center of the lobby by the building manager. Ordinarily, an attendant employed by the management was stationed at the desk to sign in individuals who arrived at the building after business hours. On the night in question, however, the lobby attendant was away from his post attending to his janitorial responsibilities elsewhere in the building. Consequently, plaintiff Nallan, who was familiar with the after-hours procedures in the building, decided to sign himself in before proceeding to the union offices, which were located on one of the upper floors. As he bent over the desk to sign his name, Nallan heard what sounded like a gunshot and, immediately thereafter, felt a burning sensation in his back. Several individuals were seen running from the building after the shot was fired, but Nallan’s assailant was never identified or apprehended. As a result of the shooting, Nallan was incapacitated for a number of months and required intensive nursing care.

In their suit against the owner and manager of the Fisk Building, the Nallans relied upon two distinct theories of liability. First, they contended that, by employing an attendant to keep an eye on the building lobby, defendant HelmsleySpear had, in effect, assumed an obligation to provide at least minimal protection from criminal intruders for visitors who entered the building after business hours. The lobby attendant’s absence from his assigned post, according to plaintiffs, represented a lack of due care in the performance of this assumed obligation. Hence, plaintiffs argued, Helmsley-Spear was liable for plaintiff Nallan’s injuries to the extent that the injuries were a foreseeable and proximate consequence of its negligence.

As a second basis for liability on the part of both defendants, plaintiffs posited that, apart from any assumed obligation flowing from the voluntary employment of a lobby attendant, defendants were under a legal duty to exercise reasonable care in making the common areas of their building safe for tenants and their invitees. Because there had been a substantial number of crimes in the building prior to the incident in which Nallan was shot, plaintiffs argued, a jury could rationally find that personal injuries resulting from the criminal acts of third parties were a foreseeable eventuality. Hence, according to plaintiffs, defendants’ duty to maintain safe conditions in the building may have included an obligation to take reasonable steps to prevent or minimize the risk of harm from criminal activities in the lobby. Defendants would then be liable, in plaintiffs’ view, insofar as their failure to exercise due care in discharging this duty was found to be the proximate cause of plaintiff Nallan’s injury.

After both sides had been given an opportunity to present their cases, the two theories of liability advanced by plaintiffs were submitted to the jury in the form of a series of interrogatories. The jury was asked the following questions:

(1) "Did William Nallan enter the Fisk Building on September 30, 1969 for the purpose of attending a [union] meeting * *

(2-a) "Did the defendant Helmsley-Spear voluntarily assume the obligation of maintaining an attendant in the lobby of the Fisk Building after 6:30 P.M.?”

(2-b) "Did the attendant in the lobby of the Fisk building * * * fail to exercise reasonable care in carrying out his duties?”

(3-a) "Did the defendants know or have reason to believe from past experience in their building and in the immediate area surrounding their building that there was a likelihood of criminal acts being committed in the Fisk building?”

(3-b) "Did the nature of the criminal acts require, in the exercise of reasonable care, that an attendant be in the lobby of the Fisk building at all times after 6:30 P.M. or that the lobby not be left unattended unless the front doors [were] locked?”

(4) "Should defendants have foreseen that injury to the plaintiff from criminal actions of a third person would probably result from [their] negligent conduct?”

(5) "Was the negligence of defendants a proximate cause of the injury sustained by plaintiff?”

Additionally, the jury was asked to consider, over plaintiffs’ objection, whether plaintiff Nallan had been contributorily negligent in attending the September 30 union meeting without taking any precautionary measures to protect himself, despite his awareness that certain threats on his life had been made.

The jury answered all but two of the interrogatories in the affirmative. Questions (3-b) and (4), however, were answered in the negative. Thus, although the jury found that defendants’ negligence was a proximate cause of plaintiff Nallan’s injury, it also concluded that the prior crimes in the building did not require defendants to post an attendant in the lobby at all times after 6:30 p.m. and, further, that the injury to plaintiff Nallan from the criminal acts of a third person was not foreseeable. As to the question of Nallan’s contributory negligence, the jury returned a verdict in favor of defendants, finding that Nallan had failed to exercise reasonable care in protecting himself and that this omission was the proximate cause of his injury.

Because of this last conclusion by the jury, the Trial Judge found it unnecessary to consider whether an intelligible legal holding could be derived from the jury’s responses to the first five interrogatories. Instead, the Trial Judge simply granted judgment for defendants, on the theory that the jury’s finding of contributory negligence operated as a complete bar to any recovery by plaintiffs (see, e.g., Karpeles v Heine, 227 NY 74).

On appeal, the Appellate Division overturned this aspect of the trial court’s ruling. The Appellate Division initially found that the facts were insufficient, as a matter of law, to establish contributory negligence on the part of plaintiff Nallan and that, consequently, it was error for the trial court to deny plaintiffs’ motion to have the question of contributory negligence removed from the jury’s consideration (67 AD2d 719, 720). The Appellate Division held, however, that the judgment in favor of defendants was nevertheless justified, since, in its view, plaintiffs had failed to introduce evidence to support every element of their cause of action. Specifically, the Appellate Division majority found, plaintiffs had not demonstrated either that plaintiff Nallan’s injuries were foreseeable or that they were the proximate result of defendants’ conduct. Hence, in the end, plaintiffs lost on the merits because of a supposed failure of proof.

Before considering the correctness of this decision, we find it necessary to make some preliminary observations concerning the proceedings below. First, we note our agreement with the Appellate Division’s conclusion that the Trial Judge erred, as a matter of law, in submitting the issue of plaintiff Nallan’s contributory negligence to the jury. To be sure, we have often said that the question of contributory negligence is "almost always * * * a question of fact” and is "almost exclusively a jury function” (Wartels v County Asphalt, 29 NY2d 372, 379; see Nelson v Nygren, 259 NY 71, 76). We have also observed, however, that "contributory negligence should not be charged 'if there is no or insufficient evidence to support it’ ” (Willis v Young Men’s Christian Assn. of Amsterdam, 28 NY2d 375, 378, quoting 65A CJS, Negligence, § 293, p 1032). In truth, whether the issue is the negligence of the defendant or the contributory negligence of the plaintiff, the test for determining whether the facts pose a question for resolution by the jury remains the same: is there a "valid line of reasoning and [are there] permissible inferences which could possibly lead rational men to the conclusion [of negligence] on the basis of the evidence presented at trial”? (Cohen v Hallmark Cards, 45 NY2d 493, 499.) If no such "valid line of reasoning” exists, it is proper for the trial court to make a legal determination without resorting to the fact-finding function of the jury.

Under this standard, there can be no doubt that plaintiffs were entitled to a "directed verdict” on the issue of contributory negligence as requested. Although plaintiff Nallan was aware that he was the object of certain rather ominous threats, which were made approximately one month before the shooting, he had no reason to believe that he was under any particular danger on the night in question. Given the nature of the threats, it would be unreasonable to conclude that Nallan was obliged to take precautionary measures above and beyond notifying the police in order to satisfy his duty to protect himself from harm. Hence, there could be no rational finding of contributory negligence, and plaintiffs were entitled to have the jury instructed accordingly.

The second preliminary issue with which we must treat is the matter of the apparent inconsistency in the jury’s responses to the trial court’s interrogatories. We note that the jury answered question (4) in the negative, finding that plaintiff Nallan’s injuries were not necessarily a foreseeable consequence of defendants’ negligent conduct. On the other hand, the jury responded affirmatively to question (5), which asked it to consider whether defendants’ negligence was the proximate cause of plaintiff Nallan’s injury. The difficulty is that it was logically impossible for the jury to find that foreseeability was lacking in this case while, at the same time, finding that defendants’ negligence was the proximate cause of plaintiff’s injury, because, as was implicit in the Trial Judge’s instructions, foreseeability is an essential element of negligence (see, generally, Prosser, Torts [4th ed], § 43). Given this apparent inconsistency in the jury’s special findings, it would not be feasible at this point to retrace the jury’s footsteps and grant judgment for either party on the basis of its answers to the interrogatories. Thus, there will have to be a new trial to determine defendants’ liability, assuming of course, that defendants were not entitled to judgment as a consequence of plaintiffs’ failure to make out a prima facie case.

Having thus narrowed the issues in the case to the single question of the sufficiency of plaintiffs’ proof, we turn now to a consideration of the merits of the Appellate Division majority’s determination. It is on this central question that we differ with the views expressed by that court, for, in our view, the evidence introduced by plaintiffs at trial was sufficient to establish a prima facie case in negligence.

One of plaintiffs’ theories at trial was that the history of criminal activities in the Fisk Building gave rise to an obligation on the part of the building’s owner and manager to take reasonable steps to minimize the foreseeable danger to those unwary souls who might venture onto the premises. Such an obligation is recognized by our law, as but a natural corollary to the landowner’s common-law duty to make the public areas of his property reasonably safe for those who might enter (see, e.g., Kilmer v White, 254 NY 64; Junkermann v Tilyou Realty Co., 213 NY 404; Prosser, Torts [4th ed], § 63, pp 403-408; Restatement, Torts 2d, §§ 359-360). In this connection, we find the rule stated in the Restatement instructive:

"A possessor of land who holds it open to the public * * * is subject to liability to members of the public while they are upon the land * * * for physical harm caused by the * * * intentionally harmful acts of third persons * * * and by the failure of the possessor to exercise reasonable care to

"(a) discover that such acts are being done or are likely to be done, or

"(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it” (Restatement, Torts 2d, § 344).

Of course, a possessor of land, whether he be a landowner or a leaseholder, is not an insurer of the visitor’s safety. Thus, even where there is an extensive history of criminal conduct on the premises, the possessor cannot be held to a duty to take protective measures unless it is shown that he either knows or has reason to know from past experience "that there is a likelihood of conduct on the part of third persons * * * which is likely to endanger the safety of the visitor” (Restatement, Torts 2d, § 344, Comment f). Only if such conditions are met may the possessor of land be obliged to "take precautions * * * and to provide a reasonably sufficient number of servants to afford a reasonable protection” (id.).

Applying these principles to the instant case, we conclude that plaintiffs’ proof was sufficient to warrant sending the question of defendants’ liability in negligence to the jury. Plaintiffs introduced evidence that there had been 107 reported crimes in the Fisk Building in the 21 months which preceded the shooting and that at least 10 of these unlawful acts were crimes against the person. Although there was no indication in the record that any of these crimes took place in the lobby area, where plaintiff Nallan was shot, a rational jury could have found from the history of criminal activity in the other parts of the building that a criminal incident in the lobby was a significant, foreseeable possibility. If the jury found that defendants knew or had reason to know of the prior crimes in the building and further found that defendants should have anticipated a risk of harm from criminal activity in the lobby, it properly could have gone on to conclude that defendants failed in their obligation to take reasonable precautionary measures to minimize the risk and make the premises safe for the visiting public. Moreover, even if the jury concluded that the provision of a part-time attendant would suffice to fulfill defendants’ obligation, it might still have found negligence under a respondeat superior theory if it concluded that the attendant employed failed to exercise due care in the performance of his assigned responsibilities.

An entirely different problem is presented when we turn our attention to the question whether there was evidence on the record from which the jury could have concluded that defendants’ omission was the legal or proximate cause of plaintiff Nallan’s injury. In this regard, it was plaintiffs’ burden to show that defendants’ conduct was a substantial causative factor in the sequence of events that led to Nallan’s injury (see Restatement, Torts 2d, § 430; Prosser, Torts [4th ed], § 42). Of course, the fact that the "instrumentality” which produced the injury was the criminal conduct of a third person would not preclude a finding of "proximate cause” if the intervening agency was itself a foreseeable hazard (see Restatement, Torts 2d, §§ 302B, 449; Prosser, Torts [4th ed], at pp 271-272).

Here, there was expert testimony in the record that the mere presence of an official attendant, even if unarmed, would have had the effect of deterring criminal activity in the building’s lobby. This was so, according to plaintiffs’ expert, whether the crime in question was one of random violence or was a deliberate, planned "assassination” attempt such as apparently occurred in this case. The clear implication of the expert testimony was that a would-be assailant of any type would be hesitant to act if he knew he was being watched by a representative of the building’s security staff. Contrary to the reasoning of the majority at the Appellate Division, it would seem to us that the deterrent effect described by plaintiffs’ expert witness would exist whether the lobby guard was a "trained observer” or, as here, was an ordinary attendant with no special expertise in the area of building security, since that fact would make no difference from the potential assailant’s point of view. Thus, the jury in this case might well have inferred from the available evidence that the absence of an attendant in the lobby at the moment plaintiff Nallan arrived was a "proximate” cause of Nallan’s injury. Accordingly, it cannot be said that plaintiffs failed to introduce evidence sufficient to make out a prima facie case.

Before closing, we deem it necessary to make a few remarks about plaintiffs’ second trial theory, under which defendant Helmsley-Spear, Inc., was to be held liable if the jury found that it negligently performed an assumed obligation to provide a lobby attendant. Preliminarily, we note that, since there must be a new trial in any event, we have no occasion to comment upon the manner in which this theory was charged to the jury or upon the possibility that defendant HelmsleySpear effectively consented to the charge by failing to raise a specific and timely objection (see CPLR 4110-b). Our remarks in this connection are intended only to highlight some of the limitations inherent in plaintiffs’ stated theory.

It was plaintiffs’ position at the trial that, by undertaking to employ an attendant to watch the lobby, defendant HelmsleySpear had assumed a duty, the negligent performance of which could lead to liability, even if there was no legal obligation in the first instance to provide a lobby attendant. Much of the argument in the parties’ briefs on this point was devoted to the question whether the evidence would support a jury finding that the employment of the attendant in this case represented an undertaking by Helmsley-Spear to provide some protective services to the building’s tenants and their guests. We note, however, that even if this essentially factual dispute were resolved in favor of plaintiffs, it would not necessarily follow that Helmsley-Spear could be held liable for temporarily withdrawing or negligently performing such services. The formula for determining when "one who assumes a duty to act, even though gratuitously, may thereby become subject to the duty of acting carefully” has been articulated by Chief Judge Cardozo as follows: "If conduct has gone forward to such a stage that inaction would commonly result, not negatively merely in withholding a benefit, but positively or actively in working an injury, there exists a relation out of which arises a duty to go forward * * * The query always is whether the putative wrongdoer has advanced to such a point as to have launched a force or instrument of harm, or has stopped where inaction is at most a refusal to become an instrument for good” (Moch Co. v Rensselaer Water Co., 247 NY 160, 167-168; cf. Florence v Goldberg, 44 NY2d 189, 196-197).

In the circumstances of this case, the application of this principle would require plaintiffs to show not only that defendant Helmsley-Spear undertook to provide a service and did so negligently, but also that its conduct in undertaking the service somehow placed plaintiff Nallan in a more vulnerable position than he would have been in had Helmsley-Spear never taken any action at all. Plaintiffs might show, for example, that because Nallan was familiar with the building’s after-hours procedures and expected that an attendant would be present, he was lulled into a false sense of security and, as a consequence, neglected to take the precautions he might otherwise have taken upon entering the building. In short, defendant Helmsley-Spear could be held liable under an "assumed duty” theory only if it was reasonably foreseeable that members of the public, such as Nallan, would rely upon the continued presence of a building attendant in the lobby of the Fisk Building and would tailor their own conduct accordingly (see Restatement, Torts 2d, § 323, subd [b], and Comment c). In this regard, the record contains evidence which would tend to support a finding of liability under this theory and it is assumed that plaintiffs will advance it upon a retrial.

For all of the foregoing reasons, the order of the Appellate Division should be reversed, with costs, the complaint reinstated and the matter remitted for a new trial in accordance with this opinion.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler and Fuchsberg concur; Judge Meyer taking no part.

Order reversed, etc.

      . Both parties argued to the Trial Judge that they had previously agreed to a procedure whereby the jury would deliver a general verdict in favor of one side or the other, as well as its specific responses to the interrogatories posed by the court. The Trial Judge, however, maintained that this had not been his understanding and that his charge to the jury required it to return only a "special” verdict on particular factual issues, leaving to the court the task of determining which party was entitled to judgment on the jury’s findings (see CPLR 4111, subd [c]).

      . Plaintiffs’ cause of action accrued in 1969, almost six years before New York abrogated the contributory negligence rule and adopted the comparative negligence approach to unintentional tort liability (see L 1975, ch 69).

      . Because it concluded that plaintiffs had not made out a prima facie case, the Appellate Division did not find it necessary to attempt to reconcile the apparent inconsistencies in the jury’s special findings (67 AD2d, supra, at p 721).

      . Plaintiffs contend that the wording of question (4) was inherently misleading, in that it suggested to the jury that it could find foreseeability only if it concluded that defendants should have anticipated an assassination attempt directed specifically at plaintiff Nallan. Having read the trial court’s charge as a whole, however, we are of the opinion that it adequately informed the jury that it need not find the precise circumstances surrounding Nallan’s injury foreseeable, as long as it found that there was a foreseeable risk of harm resulting from the criminal activities of third persons on the premises.

      . We note that, had there not been a finding of contributory negligence, the Trial Judge in this case would have been justified in asking the jury to reconsider its apparently irreconcilable factual findings. Although CPLR 4111 (subd [c]l contemplates such action by the trial court only when the jury’s answers to interrogatories are accompanied by a general verdict and there is an internal inconsistency, we see no reason why this remedy should not be available in a case where the jury’s function has been limited to the returning of a special verdict.

      .  At the trial, there was some question as to whether plaintiff Nallan had entered the building under the status of a “business invitee” of one of defendants’ tenants. We note, however, that, shortly after the trial was concluded, this court handed down a decision in which we made it clear that the status of a person injured on another’s land is not to be the determinative factor in assessing the landowner’s duty of care (Basso v Miller, 40 NY2d 233). Thus, whether plaintiff Nallan was a "business invitee” or a visitor of some lesser status is but one of the many considerations that must be taken into account in determining whether the risk of harm to him was foreseeable under the circumstances (see Scurti v City of New York, 40 NY2d 433).

      . The jury was instructed that it could consider the crime rate in the immediate vicinity of the Fisk Building as well as the crimes that occurred in the building itself. Inasmuch as defendants did not object to this aspect of the trial court’s charge, we have no occasion to consider its propriety (see CPLR 4110-b).

      .  What safety precautions may reasonably be required of a landowner is almost always a question of fact for the jury. Conceivably, in assessing the reasonableness of the landowner’s conduct, the jury might take into account such variables as the seriousness of the risk and the cost of the various available safety measures.

      . There was some testimony that the attendant in this case was not required by his employers to man the lobby desk at all times and that, in fact, his custodial duties mandated that he occasionally leave his post to perform minor cleaning chores. There was further testimony, however, that when the attendant was required by his duties to leave the lobby area, he customarily either locked the front doors of the building or, if that was not feasible, called a matron to take his place temporarily.
      Given these facts, there existed at least two possible approaches to finding defendants liable in negligence. If, on the one hand, the jury found that the attendant had been directed by his employers to take such precautionary measures, either expressly or implicitly, it could have further concluded that the attendant’s failure to follow his directions in the face of a foreseeable risk constituted negligence that is vicariously attributable to his employers. If, on the other hand, the jury found that no such instructions had been given to the attendant, it could have drawn the conclusion that defendants themselves were negligent in not furnishing a full-time attendant to watch the lobby after business hours. In either case, liability might well result.

      . We find that there was ample evidence on the record from which the jury could conclude that defendant Helmsley-Spear had indeed undertaken to provide minimal building security through the use of a lobby attendant. Although it is true that the attendant in this case was unarmed and untrained, his stated duties included such security-related activities as breaking up fights in the lobby, escorting unwanted visitors out of the building and phoning the police if he observed any suspicious conduct within his bailiwick. The fact that the attendant had additional cleaning duties does not in itself detract from the reasonable inference that may be drawn from the evidence as a whole that the attendant was intended to act, at least in part, as a lobby guard.


author: Wachtler, J. Gabrielli, J.

text:
    Dennis Bellanca, Doing Business as The Main Event, et al., Respondents, v New York State Liquor Authority et al., Appellants.
    Argued April 30, 1980;
    decided June 10, 1980

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Peter J. Dooley and Shirley Adelson Siegel of counsel), for appellants.
    The topless dancing ban here involved is within the State’s broad power under the Twenty-first Amendment to regulate the dispensation of alcoholic beverages and is not an unconstitutional infringement of First Amendment rights of free speech. (California v La Rue, 409 US 109; Matter of Zorach v Clauson, 303 NY 161; Salem Inn v Frank, 501 F2d 18, affd sub nom. Doran v Salem Inn, 422 US 922; Salem Inn v Frank, 522 F2d 1045; Inturri v Healy, 426 F Supp 543; Matter of Beal Props. v State Liq. Auth., 37 NY2d 861; Defiance Milk Prods. Co. v Du Mond, 309 NY 537; I. F. L. Y. Co. v Temporary State Housing Rent Comm., 10 NY2d 263; People v Broadie, 37 NY2d 100.)

      George P. Doyle for respondents.
    The Supreme Court, Erie County (Doerr, J.), was correct in declaring subdivision 6-a of section 106 of the Alcoholic Beverage Control Law unconstitutional under the First and Fourteenth Amendments to the United States Constitution and section 8 of article I of the New York State Constitution. (Salem Inn v Frank, 522 F2d 1045; California v La Rue, 409 US 109; Salem Inn v Frank, 501 F2d 18, affd sub nom. Doran v Salem Inn, 422 US 922; Lucifer’s Gate v Town of Van Buren, 83 Misc 2d 790; Erznoznik v City of Jacksonville, 422 US 205; Southeastern Promotions v Conrad, 420 US 546; Matter of TJPC Rest. Corp. v State Liq. Auth., 61 AD2d 441; Chapin v Town of Southampton, 457 F Supp 1170; Schneider v State, 308 US 147.)
   OPINION OF THE COURT

Wachtler, J.

The question on this appeal is whether a provision of the Alcoholic Beverage Control Law (§ 106, subd 6-a) is unconstitutional insofar as it prohibits topless dancing at premises licensed by the State Liquor Authority. The Supreme Court, Erie County, held this portion of the statute unconstitutional. The State has appealed directly to this court pursuant to CPLR 5601 (subd [b], par 2).

The plaintiffs are the owners of nightclubs, bars and restaurants which, for several years, have featured topless dancing. The plaintiffs also sell alcoholic beverages to their patrons for consumption on the premises, pursuant to licenses issued by the State Liquor Authority. That agency has adopted rules prohibiting nudity and "lewd or indecent conduct” on premises licensed to sell alcohol. The rules also specifically prohibit the licensee from permitting "any female” to appear with breasts "expose[d] to view” but, as originally adopted, contained an exception for topless dancing which, although not prohibited, was subject to strict regulation.

In 1977 the Legislature added nearly identical provisions to the Alcoholic Beverage Control Law (L 1977, ch 321, § 1). However, this statute (Alcoholic Beverage Control Law, § 106, subd 6-a) did not carry forward the exception permitting topless dancing. No criminal penalty is provided for violating this statute (see Alcoholic Beverage Control Law, § 130, subds 3, 5). But a violation of this law may result in a loss of the liquor license (9 NYCRR 53.1 [s]).

The plaintiffs commenced this declaratory judgment action claiming that subdivision 6-a is unconstitutional to the extent it prohibits all topless dancing at premises licensed by the State Liquor Authority. The plaintiffs stated that they had always complied with the Liquor Authority’s rules and restrictions with respect to topless dancing. In addition it was alleged that this activity is not observable from the public streets and the fact that it is featured is clearly noted on signs posted outside the plaintiffs’ premises. "Consequently”, the complaint states, "no person has been exposed to topless dancing performances at Plaintiffs’ premises except by choice.” In their first cause of action they argued that the topless dancing featured at their establishments "is not lewd or obscene within the meaning of the United States Constitution, and is a form of protected expression under the First Amendment.” In the remaining three causes of action the plaintiffs claimed that subdivision 6-a is also overbroad, violates the equal protection clause and infringes on their freedom of expression guaranteed by section 8 of article I of the State Constitution. They therefore asked the court to declare subdivision 6-a unconstitutional to the extent that it prohibits topless dancing in licensed premises and also sought an injunction barring the State from enforcing this law in the future.

In response the State contended that "notwithstanding the Constitutional provisions which guarantee freedom of expression” it may, pursuant to the Twenty-first Amendment of the United States Constitution, "regulate the type of entertainment in establishments licensed in this State to sell alcoholic beverages.”

The trial court recognized the State’s broad power to control and regulate the sale of liquor in order to protect the public from its effects (California v La Rue, 409 US 109). It found, however, that topless dancing is "a type of expression protected by the First Amendment” and that the State had failed to "show some serious and compelling reason to limit it. Bland reliance on the Twenty-first Amendment is insufficient”. Thus the court declared subdivision 6-a unconstitutional as applied to topless dancing in licensed premises, and to that extent, enjoined its enforcement.

On this appeal the State contends that this judgment is inconsistent with the United States Supreme Court’s holding in California v La Rue (supra).

In La Rue the court held facially valid certain administrative rules regulating the type of entertainment that might be presented in bars and nightclubs licensed by the State. The rules prohibited what the court described as acts of "gross sexuality” including display of the genitals and live or filmed performances of sexual acts. They noted that before the rules were promulgated, hearings were held and it was shown that at premises where these acts were performed, "numerous incidents of legitimate concern to the Department had occurred” (California v La Rue, supra, at p 111). These incidents included "bacchanalian revelries” involving public sexual acts between customers and entertainers, as well as assaults, rape and indecent exposure committed at or near such premises.

In upholding the regulations the court observed that the Twenty-first Amendment, granting the States power over the sale and distribution of liquor within their borders, has been recognized as conferring on the States something more than the normal authority inherent in the police power. Although that amendment did not nullify the other provisions of the Constitution whenever the State seeks to regulate the sale of liquor, it did serve to "strengthen” the State’s authority in that particular area. The court conceded that some of the performances prohibited by the regulations would be entitled to constitutional protection but noted that the regulations claimed to be invalid on their face, in "substance” prohibited performances "that partake more of gross sexuality than of communication” (California v La Rue, supra, at p 118). The State’s conclusion that these acts should not be permitted at places authorized to sell liquor was held not to be "an irrational one” in light of "the evidence from the hearings” (California v La Rue, supra, at pp 115, 116). "Given the added presumption in favor of the validity of the state regulation in this area that the Twenty-first Amendment requires, we cannot hold that the regulations on their face violate the Federal Constitution” (California v La Rue, supra, at pp 118-119).

In the case now before us the plaintiffs do not claim a right to offer performances of explicit sexual acts, live or filmed, real or simulated. Nor are we concerned with nude dancing. There is no contention that the plaintiffs should have a right to present their dancers entirely unclothed, and thus they do not challenge that portion of the statute which prohibits nudity. Nor do they contest the statute insofar as it would prohibit women other than dancers from appearing bare-breasted on their premises. Similarly the plaintiffs do not contest the State’s right to place some restrictions on topless dancing performances as the Liquor Authority’s regulations have done in the past. Finally, of course, the plaintiffs do not claim that they are exempted from the obscenity laws or that topless dancing should always be allowed no matter how, or where performed. The only question before us is whether the statute is constitutional to the extent that it absolutely prohibits liquor licensees from presenting nonobscene topless dancing performances to willing customers under all circumstances.

Thus unlike the court in La Rue, we are not confronted with a broad attack on the facial validity of a statute which in "substance” prohibits acts of "gross sexuality”, most of which are probably criminally obscene as well. Here the challenge narrowly focuses on a rule prohibiting a single activity, topless dancing, which is not inherently obscene. On the contrary it has been legally recognized as a form of expression (Doran v Salem Inn, 422 US 922) like nudity in art and sculpture. Of course involving conduct, as it does, it is undoubtedly subject to more restrictions than the more static arts. But although offensive to some, as all nudity or partial nudity is, it is nevertheless entitled to at least minimal protection under the First Amendment. Certainly the State could not prohibit topless dancing under all circumstances (Doran v Salem Inn, supra). Neither, in our view, may the State arbitrarily prohibit it at all places licensed to sell alcohol.

Here there is nothing in the record to show that the State’s conclusion, that this activity should not take place at licensed premises, was rationally based on evidence demonstrating a need for the rule. Indeed it appears that the law was not prompted by hearings or any legislative awareness of deficiencies in the prior regulation permitting topless dancing subject to restrictions and the continued supervision of the State Liquor Authority.

The State urges however that we indulge an additional presumption and assume that the Legislature did investigate and find sufficient facts to support the legislation (see, e.g., I. L. F. Y. Co. v Temporary State Housing Rent Comm., 10 NY2d 263, 269; Defiance Milk Prods. Co. v Du Mond, 309 NY 537). But even if the presumption could be held to be equivalent to the actual findings made in La Rue — a question we need not decide — it would be inappropriate in this case to presume that topless dancing posed a problem in premises licensed by the State Liquor Authority. It is, in fact, hard to imagine that the agency, which is so vigilant in enforcing the liquor laws and its own regulations would have continued to permit topless dancing at premises authorized to sell liquor if the audiences degenerated into "bacchanalian revelries” or became involved in "incidents of legitimate concern” to the State. Notably, even in California where such incidents occurred in bars permitting gross sexuality, the State found no need to prohibit topless dancing. It simply imposed restrictions similar to those previously found acceptable by the State Liquor Authority in this State (see La Rue v California, 326 F Supp 348, 359).

The State’s power to control and regulate the sale of alcoholic beverages is designed to protect the public from abuses related to alcohol consumption. It is not a license to censor whatever occurs at premises authorized to sell alcohol. Thus when the State employs this power in such a way as to infringe on activities entitled to some constitutional protection, it must at least demonstrate that there is a rational connection between the activity sought to be prohibited and the State’s legitimate concern in controlling liquor consumption. On the record before us there is nothing which would rationally support a conclusion that in this State it is dangerous to mix alcohol and topless dancing.

Accordingly the judgment of the Supreme Court, Erie County, should be affirmed.

Gabrielli, J.

(dissenting). I am impelled to dissent, for the holding of the majority is based upon what I perceive to be a misstatement of the law as enunciated by the United States Supreme Court in Doran v Salem Inn (422 US 922) and California v La Rue (409 US 109).

At issue on this appeal is the power of a State to prohibit topless dancing in an establishment which sells liquor for on-premises consumption. The majority finds this prohibition to be unconstitutional, apparently premising this conclusion upon the belief that the State bears the burden of justifying the rationality of its ban upon topless dancing in drinking establishments, because topless dancing is entitled to some First Amendment protections. The most recent pronouncements of the Supreme Court upon this subject, however, are expressly to the contrary (see California v La Rue, supra, at pp 118-119; Doran v Salem Inn, supra, at pp 932-933).

When a State acts to regulate the sale of liquor within its boundaries, its authority stems not merely from the normal police power of the State, but also directly from the Twenty-first Amendment to the United States Constitution. This grant of power by the Constitution serves to increase that authority which a State normally enjoys and to place a significantly greater burden upon a party seeking to challenge a State regulation of liquor as violative of some other provision of the United States Constitution. This is not to suggest that a State acting under the authority of the Twenty-first Amendment is free to ignore all other parts of the Federal Constitution (see, e.g., Wisconsin v Constantineau, 400 US 433; Craig v Boren, 429 US 190). Rather, the effect of the Twenty-first Amendment is to require those who would challenge a State regulation of liquor on the ground that it is violative of some other constitutional provision or of supreme Federal law, to prove that the particular interplay of provisions and purposes in each case mandates a disregard of the State’s otherwise legitimate powers (compare Hostetter v Idlewild Liq. Corp., 377 US 324, Seagram & Sons v Hostetter, 384 US 35, and State Bd. v Young's Market Co., 299 US 59, with California Liq. Dealers v Midcal Aluminum, 445 US 97).

In the instant case, plaintiffs claim that the ban on topless dancing in establishments which sell liquor for on-premises consumption is violative of the First Amendment. It is, of course, far too late in the day to suggest that dancing, even topless or nude dancing, is entitled to absolutely no First Amendment protections. Indeed, in both California v La Rue (409 US 109, 118, supra) and Doran v Salem Inn (422 US 922, 932, supra) the Supreme Court specifically recognized that such "entertainment” is not bereft of all protection because it does have some communicative aspects. At the same time, however, the court noted, with care, that such "art” forms "involve only the barest minimum of protected expression” (Doran v Salem Inn, supra, at p 932; accord California v La Rue, supra, at pp 117-118).

Because topless barroom dancing has so little communicative content and is accordingly entitled to only a minimum of First Amendment protection, whereas the State has the responsibility and, under the Twenty-first Amendment, the power to regulate the sale and use of liquor, the Supreme Court has declared not only that a statute prohibiting or limiting such dancing must be upheld unless it is clearly irrational, but also that the burden is on the challenger of such a law to overcome a presumption of constitutionality and prove that the law is irrational (California v La Rue, supra, at pp 118-119). Indeed, in Doran v Salem Inn, the court expressly stated that "[i]n La Rue, however, we concluded that the broad powers of the States to regulate the sale of liquor, conferred by the Twenty-first Amendment, outweighed any First Amendment interest in nude dancing and that a State could therefore ban such dancing as a part of its liquor license program” (422 US, supra, at pp 932-933). Moreover, and of great significance, in that same opinion the court intimated that the ban on topless dancing there involved would clearly have been constitutional had it been enacted pursuant to the State’s powers under the Twenty-first Amendment and accordingly limited to establishments selling liquor (Doran v Salem Inn, supra, at p 933).

Applying these principles to the instant case, it is painfully obvious that the challenged statute is indeed valid and constitutional. Clearly, plaintiffs have not met their burden of proving this particular exercise of the State’s power to regulate the sale of liquors to be irrational. Indeed, even the majority of this court appears to have impliedly conceded that plaintiffs have failed to meet this burden since, in order to declare the statute unconstitutional, the majority is forced to place the burden of proving the statute’s reasonableness upon the State, in direct contradiction to the doctrine enunciated in La Rue. Moreover, this statute does contain the very limitations which the Supreme Court indicated would have sufficed to place the ordinance at issue in Doran beyond challenge. Hence I find it impossible to concur in the result reached by a majority of this court today.

In conclusion, I must emphasize that Judges called upon to determine the constitutionality of a challenged statute are required to set aside their personal opinions of what is best and strive "to resolve the issue by constitutional measurement, free of emotion and of predilection” (Roe v Wade, 410 US 113, 116). This is so for the very basic reason that "the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution” (Lochner v New York, 198 US 45, 76 [Holmes, J., dissenting]). In his official capacity, a Judge may serve neither as a moralist nor as a libertine, but simply must endeavor to decide each case on the basis of the applicable law. Whatever artistic or communicative value may attach to topless dancing is here overcome by the State’s exercise of its broad powers arising under the Twenty-first Amendment. No reasonable person, moralist or not, could deny that the admixture of alcohol and topless dancing presents a very real possibility of disturbances of the public peace in licensed premises, a problem which may be addressed in advance by the Legislature. The elected representatives of the people of this State have now chosen to avoid such disturbances by means of a reasonable restriction upon establishments which sell liquor for on-premises consumption. Although some may believe this solution to be unwise or unnecessary, there exists no justification for disturbing the legislative judgment in this case.

Accordingly, I dissent and vote to reverse the judgment appealed from and to declare the statute to be constitutional.

Judges Jones, Fuchsberg and Meyer concur with Judge Wachtler; Judge Gabrielli dissents and votes to reverse in a separate opinion in which Chief Judge Cooke and Judge Jasen concur.

Judgment affirmed, with costs.

      . The rules provide that a license or permit may be revoked, canceled or suspended "For suffering or permitting on licensed premises (1) any lewd or indecent conduct or (2) any person to appear unclothed or in such manner or attire as to expose to view any portion of the pubic hair, anus, vulva or genitals, or any simulation thereof’ (9 NYCRR 53.1 [r]).

      . This rule (former subd [s] of 9 NYCRR 53.1) provided that the licensee should not suffer or permit "any female to appear on licensed premises in such manner or attire as to expose to view any portion of the breast below the top of the areola, or any simulation thereof. The provisions of this subdivision shall not apply to any female entertainer performing on a stage or platform which is at least 18 inches above the immediate floor level and which is removed by at least six feet from the nearest patron.”

      . The statute reads as follows: "No retail licensee for on-premises consumption shall suffer or permit any person to appear on licensed premises in such manner or attire as to expose to view any portion of the pubic area, anus, vulva or genitals, or any simulation thereof, nor shall suffer or permit any female to appear on licensed premises in such manner or attire as to expose to view any portion of the breast below the top of the areola” (Alcoholic Beverage Control Law, § 106, subd 6-a).

      . The Twenty-first Amendment, which repealed national prohibition, also provides in the second section: "The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”

      . The court expressly relied on the First Amendment. Although it also concluded, summarily, that subdivision 6-a violated section 8 of article I of the State Constitution, we find it unnecessary to consider that question or the additional points raised in the complaint, since in our view, the First Amendment argument presented in the first cause of action is dispositive.

      . We recognize, as the dissent does, that in Doran the Supreme Court observed, in dictum (at pp 932-933), that they had concluded in La Rue that "the broad powers of the States to regulate the sale of liquor, conferred by the Twenty-first Amendment, outweighed any First Amendment interest in nude dancing and that a State could therefore ban such dancing as a part of its liquor license program”. We also note, however, that more recently the Supreme Court has taken a narrower view of its holding in La Rue, indicating, again by way of dictum, that in that case they had simply "relied upon the Twenty-first Amendment to 'strengthen’ the State’s authority to regulate live entertainment at establishments licensed to dispense liquor, at least when the performances 'partake more of gross sexuality than of communication’ ” (Craig v Boren, 429 US 190, 207). We, of course, do not consider this dictum any more controlling than the contrary dictum in Doran. What we do consider dispositive are the factors which the Supreme Court discussed so extensively and actually relied upon in La Rue as noted above.

      . Of course when the State seeks to prohibit more traditional forms of expression, it must make a more compelling showing of need for the restriction. For instance, it would be most difficult to sustain a law prohibiting political discussions in places where alcohol is sold by the drink, even though the record may show, conclusively, that political discussions in bars often lead to disorderly behavior, assaults and even homicide.