Premises Security: Jury Verdict Rear Exit Door Broken 91164a Sexual Assault Of Infant Post-Traumatic Stress Disorder – Second Trial – Judgment N.O.V. 1st Dept. Dismissal – Court Of Appeals Reverses And Reinstates Jury Verdict
NEGLIGENCE OF LANDLORDS IN MAINTAINING #91164A PREMISES- INADEQUATE SECURITY- FAILURE TO PROTECT TENANT FROM INTRUDER
Summary: The Court of Appeals’ opinion in this case decided two negligent security cases. The Fitzgerald Law Firm, P.C., represented the plaintiffs in the case involving Gomez, and was successful. The Court of Appeals made clear its opinion that cases based upon inadequate security due to negligence of landlords should be treated in accordance with traditional theories of negligence. The Court rejected the precedent of the Appellate Division, First Department, which held plaintiffs in such cases to a higher standard of care and would make it almost impossible for plaintiffs to prove that their assailants had been intruders if they had not been specifically identified. The implication of a simple negligence standard in inadequate security cases is that a greater majority of cases can now be decided by juries.
Facts: Late on the morning of April 20, 1991, plaintiff, twelve year old Marisela Gomez was assaulted and raped on a rooftop landing at the New York City Housing Authority (“NYCHA”) building where she had been a tenant for approximately 2 years. Ms. Gomez had observed her assailant enter the building lobby through a rear lobby door, which, according to NYCHA records and trial testimony had been broken, misaligned and had not fit into the door frame for an extended period of time. The perpetrator entered the elevator with plaintiff, got off behind her when she exited on her floor and proceeded to overpower her and drag her up the stairway to the roof landing. The perpetrator ran down the stairs and out the same rear lobby door. There was a police investigation, but the perpetrator was never identified.
Holdings of the Courts Below: At trial the jury found that the assailant was an intruder who entered through the rear door which was defective and negligently maintained by the defendant NYCHA. The jury further found that the negligent maintenance was a proximate cause of the plaintiff’s injuries.
The trial judge (Supreme Court, Bronx County) set the verdict aside on the grounds that the plaintiff had failed to prove that the assailant was neither a tenant nor guest of a tenant nor someone who was authorized to be on the premises.
The Appellate Division, First Department, affirmed, “agreeing that plaintiff’s testimony that she had never seen the assailant before or after the attack, the assailant’s lack of disguise and his flight from the building were ‘insufficient as a matter of law to prove that the assailant was an intruder.'” 92 N.Y.2d at 550, quoting 249 A.D.2d 175.
Discussion: The Court of Appeals reversed the decision of the First Department. Specifically, the Court: (1) allowed plaintiffs to use circumstantial evidence to prove that the assailant was an intruder; (2) allowed plaintiffs to use circumstantial evidence to show that the negligent maintenance of the premises was a proximate cause in allowing the perpetrator to gain access to the building, and (3) stated that plaintiffs need not exclude every other possible cause for the occurrence, but need only offer evidence from which proximate cause could be reasonably inferred. “Thus a plaintiff who sues a landlord for negligent failure to take minimal precautions to protect tenants from harm can satisfy the proximate cause burden at trial even where the assailant remains unidentified, if the evidence renders it more likely or reasonable than not that the assailant was an intruder who gained access to the premises through a negligently maintained entrance . . . .” 92 N.Y.2d at 551.
The court’s decision vitiated three possible defenses for the defendant: (1) an intruder status defense (arguing that the plaintiff cannot prove that the assailant was an intruder), (2) a means of entry defense (arguing that the plaintiff cannot prove that the assailant gained entrance due to negligently inadequate security, i.e. a defective door), and (3) an other scenario defense (arguing that the plaintiff cannot prove that the incident did not happen in some fashion other than that claimed by the plaintiff). (See James F. Wilkens, “Premises Security Rulings: Plaintiffs No Longer Held to Higher Proof Standard,” New York Law Journal, Dec. 30, 1998, p. 5, col. 3.)
In this case, the court held that Gomez had satisfied her proximate cause burden. Gomez (who recognized most of the building’s residents by sight), another resident, and a frequent visitor all testified that they did not recognize the assailant, who entered and exited the premises through the rear door and did not try to disguise himself, even though several people in the lobby and elevator could have identified him. In addition, the Court of Appeals noted, he did not push a button to select a floor. Therefore, the Court held, it was permissible to infer that he was an intruder, and the jury’s verdict should not have been set aside.