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August 25, 2021

NYS Court Takes Broad View of Foreseeability of a Third-Party Assault

In New York State, landowners are required to maintain their property in a reasonably safe condition in order to minimize foreseeable dangers, including the criminal acts of third parties. Whether a criminal act is foreseeable is determined by past experience as well as the likelihood of third-party conduct on the property that could endanger the safety of visitors. Recently, the Appellate Division, First Department issued a decision in which it found that the plaintiff’s claims of inadequate security at a bar and restaurant should not have been dismissed.

In Jane Doe v. Turnmill LLC, the plaintiff was raped by a third party in a restroom located in the basement of a bar and restaurant owned by the defendants. The defendants successfully moved for summary judgment, arguing that such criminal acts were not foreseeable, that their security protocols were not breached, and that additional security protocols would not have prevented the attack. In support of their foreseeability argument, the defendants submitted evidence that the bar and restaurant was located in a low-crime area and had not been the site of any prior similar incidents.

The First Department reversed the decision granting the defendants summary judgment, finding that the plaintiff had submitted sufficient evidence to establish questions of fact regarding the foreseeability of the attack and the adequacy of the bar and restaurant’s security. In doing so, the First Department relied on the fact that the defendants were aware of a prior assault at a nearby bar owned by the same family, noting that foreseeability does not require evidence of the same type of criminal act previously occurring at the same location. The First Department also cited expert evidence submitted by the plaintiff controverting the claim that the bar and restaurant was located in a low-crime area and opining that additional security cameras could have prevented the attack.

This decision underlines the expansive scope of what can constitute past experience sufficient to establish the foreseeability of a third-party criminal act. For bars in particular, knowledge of similar, yet not necessarily identical, criminal acts having occurred at nearby venues may be enough to defeat a summary judgment motion on the issue of foreseeability. Evidence of greater security measures, particularly near bathrooms and other locations where third-party criminal acts can occur, may also prove necessary to defeat such claims.

If you have any questions regarding the content of this alert, please contact Daniel Coleman, associate, at dcoleman@barclaydamon.com; John Gaughan, partner, at jgaughan@barclaydamon.com; or another member of the Torts & Products Liability Defense Practice Area.

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