A Brooklyn Heights resident looks out her window and sees apartment buildings across the water in Battery Park City in Manhattan. Even though, the buildings are a few miles apart, the common-law for the property owners of each of those buildings is not the same concerning liability for negligent security measures.
Some time during the new year, the New York Court of Appeals will address the conflict between the First and Second Appellate Division Departments on the common-law duty to take minimal precautions to take minimal precautions to protect tenants from foreseeable harm. The following issue is squarely presented in the Appellate Division, Second Department case Scurry v New York City Hous. Auth.: Whether a “targeted” attack by a perpetrator against a victim on premises, as distinguished from a “random” attack on premises, is, by definition, an independent intervening cause that insulates a property owner from liability for negligent security measures, as a matter of law. This post is Part 1 of a three-part post.
Justice Dillon of the New York Appellate Division, Second Department is a legal powerhouse. In Scurry v New York City Hous. Auth., Justice Dillon writes a well-reasoned opinion on whether a property owner can prevail on summary judgment when the plaintiff is alleging he or she failed to take reasonable security measures.
In Scurry, Justice Dillon identifies a line of case from the Appellate Division, First Department holding that targeted attacks break the proximate causal link between the reasonableness of security measures by the property owner and the targeted crime itself. In Scurry, the Second Department draws a line in the sand, holding that “depending on the circumstances, the issue of proximate causality may present a triable issue of fact.”
Justice Dillon’s analysis is a fine lesson in foreseeability and proximate cause. Landlords are subject to a common-law duty to take minimal precautions to protect tenants from foreseeable harm, including harm from the foreseeable criminal conduct of third persons. For example, a persistent broken front door lock in a high-crime neighborhood might expose the landlord to liability.
Justice Dillon explains the First Department’s different analyses for criminal acts that are intentionally “targeted” against a particular victim as opposed to criminal acts that are “opportunistic” against random victims. Justice Dillon states, “Where the criminal act is targeted, the First Department deems the causal nexus between the plaintiff’s injury and the landowner’s duty of care to be severed as a matter of law . . . .” He explains, “by contrast, where the criminal act is perpetrated in a random manner, the First Department deems the causal nexus between the plaintiff’s injury and the landowner’s duty of care as potentially raising a triable issue of fact on a summary judgment motion. Notably, Justice Dillon explains the First Department’s rationale in distinguishing between the two types of attacks: In actions involving premeditated attacks upon known victims, it is unlikely than any reasonable security measures would have deterred the criminal attack.
Justice Dillon notes that the Second Department does not draw such a distinction.
In the next part of this three-part post, I will discuss the unfortunate facts in Scurry and the Second Department’s analysis.
(40 years ago this week, new wave, hairstyle envelope pushers A Flock of Seagulls reach their peak position on the Billboard Top 100 with “I Ran (So Far Away)”, peaking at No. 21. Cue the echoing guitars . . . ). Photo Credit: Daniel Foster
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