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A.D. Defines Foreseeability Of Crime Necessary For Negligent Security Claims

June 25, 2008

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In Maria T. v. New York Holding Company Associates et al, the plaintiff was sexually assaulted at gunpoint in her apartment. In her lawsuit, she claimed that the defendants failed to provide adequate security for the building where she lived. She asserted that the defendants failed to maintain a working lock on the sole entrance into the building. Defendants moved for summary judgment on the grounds that the assault was not foreseeable in that they were unaware of any criminal activity in the building other than the crime at issue and that the prior crimes relied upon by plaintiff were not similar to the assault and therefore did not demonstrate that the assault was foreseeable. In opposition, plaintiff relied upon police reports that reflected criminal activities that occurred in or near the building to establish that this crime was foreseeable. Plaintiff also retained an expert in the field of premises security who opined that the subject apartment building was in a police precinct with high rates of crime and the drug activity in the neighborhood attracted criminal elements to the neighborhood, thereby making the assault on plaintiff foreseeable.
The Trial Court denied defendants' motion, citing a question of fact as to the issue of foreseeability. In reversing this decision, the Appellate Division, First Department held that building owners and managing agents have a common-law duty to take minimal security precautions to protect tenants from foreseeable criminal acts of third parties. In order to establish foreseeability, the criminal conduct at issue must be shown to be reasonably predictable based upon prior occurrences of the same or similar criminal activity at a location sufficiently proximate to the subject location. While plaintiff cited seven prior instances of criminal activity in and around the apartment building, ambient neighborhood crime alone is insufficient to establish foreseeability. In conjunction with the fact that none of them were similar to the sexual assault committed against the plaintiff, the crime perpetrated upon plaintiff was not foreseeable ie., reasonably predictable.
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