Negligent Security Lawsuit Arising From Roof Sexual Assault Survives Summary Judgment

One type of “premises liability” case is involves an allegation that the property owner has failed to provide adequate security, which leads to an on-premises assault.

In one such case, Terrero v New York City Housing Authority, the Appellate Division, First Department affirmed the denial of summary judgment to the defendant.

Plaintiff sued on behalf of her 14-year old granddaughter, who was sexually assaulted by her ex-boyfriend in a building owned by defendant. The court explained why defendant was not entitled to summary judgment:

Viewed in the light most favorable to plaintiff, the evidence raises issues of fact whether the assailant was an intruder, whether he gained access to the building as a result of a broken lock at the front entrance door, and whether the assault was foreseeable. The granddaughter testified that the assailant followed her into the building through the front door, but she gave conflicting testimony as to the amount of time that elapsed between her entry and her assailant’s. It is undisputed that the front entrance lock was not working on the date of the assault. It is also undisputed that, when the lock worked, the door took approximately 10 to 12 seconds to close and re-lock.

Contrary to defendant’s contention as to the requirements of the law, the evidence of a history of assaults in the building and the building superintendent’s testimony that he sometimes heard from some residents about criminal activity on the roof, where the assault took place, raises an issue of fact whether defendant’s alleged negligence in securing access to the roof was a proximate cause of plaintiff’s granddaughter’s injuries.

The evidence thus precludes a finding that the assailant’s actions were extraordinary and unforeseeable, so as to sever any causal relationship between defendant’s alleged negligence in failing to ensure that the front entrance locks were functioning properly and the assault on plaintiff’s granddaughter.

It also held that plaintiff’s corrections in the errata sheet relating to her deposition testimony “raise issues of credibility that cannot be resolved on a motion for summary judgment.”

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