You go to an establishment. Someone assaults you. It’s definitely a criminal case, but is recovering compensation from the NYS Office of Victim Services (OVS) your only recourse?
As a matter of fact, it is not. In truth, OVS only steps in when other sources of compensation like workers’ compensation, health insurance, homeowner’s insurance, car insurance, social security benefits, and personal injury lawsuit compensation have been exhausted. And because you have only one year to file an OVS claim, you need to move quickly if you’re going to file a negligent security case.
What is a negligent security case?
A negligent security case asserts that a landlord or property owner had a duty of care to provide adequate security on its premises and failed to do so. The theory is similar to a slip and fall case, in which a landlord or property owner fails to take adequate steps to prevent foreseeable injury through proper maintenance.
Of course, maintenance isn’t the issue in a negligent security case. Proper security is. Some examples of negligent security include:
- Failing to repair door locks or security equipment in an apartment building.
- Failing to provide adequate lighting in a parking lot.
- Failure to respond to a pattern of security incidents in the area or on the property.
A property owner isn’t necessarily required to turn their property into Ft. Knox to be free from liability. Negligent security cases require the plaintiff to show that the crime was foreseeable.
What makes a crime foreseeable?
The primary factor is whether other similar crimes occurred at the same location that the owner or possessor knew about or should have known about. Courts may ask whether the neighborhood or zip code was a known high-crime area, whether specific crimes happened on the property in the past that might have prompted a reasonable person to increase their security measures, or whether the police were frequently called to the area.
In this way, foreseeability is similar to a determination made in slip and fall or other premises cases in which the courts ask whether the landlord or owner knew or should have known about a maintenance defect that could cause an accident. In fact, some cases use perpetrator testimony to show foreseeability: if a robber chose the location because they knew the security gate was broken, then one can draw a clear line between the defendant’s failure to fix the security fence and the crime that occurred.
Repeated notice that a security problem exists on the property is often sufficient to prove that the crime was foreseeable.
How do courts determine if the security was adequate?
Courts may look at similar measures taken by similar businesses in the same neighborhood or by similar businesses in general. A landlord who took steps to increase security after incidents isn’t necessarily liable just because a criminal circumvented those security measures in some fashion.
For example, if a landlord invests in better, higher security locks, the landlord isn’t necessarily responsible if some high-tech thief comes along and defeats them. The landlord could show they took reasonable steps to attempt to prevent the crime. The same would be true for a store owner who added parking lot lighting and security cameras to address parking lot crime. On the other hand, if the defendant is a jeweler and every other jeweler in town uses armed security guards, cameras, and monitored security systems to protect their property, the jeweler who only installs a monitored security system may still be found liable for failing to provide adequate security.
In New York, landlords must provide adequate security under the warranty of habitability. They have an affirmative duty to provide a “reasonable” degree of security, but as with any “reasonable” standard, it’s hard to determine what that might look like without looking at the specific facts of a case. You can guess that adequate locks, sturdy doors, and secure windows meet a minimum standard. In some areas, a buzzer or intercom system would need to be added to meet the standard. Others would need to add doormen and camera systems to the public areas.
Much would also depend on what the tenant expected when signing the lease. If the tenant signed the lease on a property that kept cameras in the common areas, then they may have a case for inadequate security if those cameras malfunctioned and weren’t replaced for months, and this negligence then resulted in a crime being committed against the tenant.
What happens if the crime is targeted?
In the 2021 case Scurry v. New York City Housing Authority, the Supreme Court of the State of New York ruled that a “targeted” attack by a perpetrator is distinct from a random attack, one which “by definition is an independent intervening cause that insulates the property owner from liability for negligent security measures.”
They further ruled that such an attack breaks the cause-and-effect link. In personal injury cases, we often say that the plaintiff would be whole but for the defendant’s actions. When an attack is targeted, this cannot be said. You may be able to pursue a civil case against the perpetrator but not the property owner.
Injury Law is Complicated
As you can see, inadequate security cases are quite complex! If you’ve been attacked or injured by a criminal and you think the property owner may have played a role in what happened, contact our office as soon as possible.