Client Alert: The Court of Appeals Expands Liability In Negligent Security Actions Arising Out Of The Intentional Or “Targeted” Acts Of Third-Parties

July 10, 2023

By C. Briggs Johnson

In Scurry v. New York City Hous. Auth., 39 N.Y.3d 443 (2023), the Court of Appeals recently decided two separate cases that expanded the liability of defendants in negligent security actions arising out of the deliberate, intentional, or “targeted” attacks of third parties.

Previously, the Appellate Division, First Department uniformly held that a “targeted” attack by a third-party precluded a liability finding against a landlord-defendant in a negligent security action.  That is no longer the case.

Our important take aways: (1) that a “targeted” attack does not absolve a landlord from liability in a negligent security action; and (2) that a landlord, tenant, or any other occupier of real property needs to ensure – on a daily basis – that they have properly functioning locks to all the entry points of their building or establishment.

The Court of Appeals made it crystal clear in Scurry that if there is any evidence that such locks are malfunctioning, or that they do not exist at all, a defendant can be liable to a plaintiff in a negligent security action even if plaintiff was injured due to an intentional or premediated attack by a third party.

Although the Court cautioned that “the sophisticated nature of an attack may in some cases be relevant to the proximate cause analysis, the fact that an attack was ‘targeted’ does not sever the casual chain between a landlord’s negligence and a plaintiff’s injuries as a matter of law.”  Scurry, 39 N.Y.3d 443.

In both cases, the Court noted that “the risk created by the nonfunctioning door locks-that intruders would gain access to the building and harm residents-is exactly the “risk that came to fruition.” Id., quotingHain v. Jamison, 28 N.Y.3d 524, 533 (2016), citingDerdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 317 (1980).

In other words, the Court in Scurry held that the question of whether the attacks on the plaintiffs were foreseeable – in light of the questions regarding the malfunctioning door locks or the unlocked doors, when weighed against the intentional conduct of the assailants – was a question of fact for the jury to decide.