Negligent security cases can be challenging to prosecute. In these kinds of cases, a plaintiff typically will seek to hold a defendant landowner liable for failing to protect him or her from harm intentionally caused by a third party. For example, if a building owner fails to maintain the lock on its front door and an assailant gains entry through it and assaults a tenant, the tenant may argue that the landlord breached a duty of care to those on the premises by failing to provide adequate security. When these cases go to trial, it becomes incumbent on the plaintiff’s attorney not only to show that the landowner’s negligence proximately caused the assault, but also to minimize the apportionment of damages to the third-party assailant (whose identity may or may not be known) to ensure a meaningful recovery.
These cases come with legal challenges as well and as the law now stands, there is a divergence between the jurisprudence of the First and Second Departments of the Appellate Division on what would seem to be a basic issue: When can a landlord be held liable for a targeted attack by an assailant against a particular tenant? The First Department has frequently dismissed cases involving targeted attacks, finding that an assailant highly motivated to cause harm to a particular person will find a way to do so, no matter the security. The Second Department has followed a more flexible proximate cause analysis, most recently in Carmona v. Sea Park E., L.P., –A.D.3d–, 2022 WL 2335742 at *1 (2d Dept. 2022), and noted its disagreement with the First Department. In this column, we will review the law that generally applies to negligent security cases, with a focus on the existing split between the departments.
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