Resolution of the Departmental Conflict on Negligent Security: 'Scurry v. NYCHA'

Last year, we addressed the conflict between the Appellate Division First Department and the Appellate Division, Second Department, as to the manner in which each evaluated death or injuries arising out a targeted attack, where a breach of building security may have been a proximate cause which enabled  the tortious act to occur. ( NYLJ, July 25, 2022). While the Second Department continued to follow a traditional proximate cause analysis, the First Department carved out a different analysis for targeted assaults. We observed that the very different analysis in the two departments begged for resolution by the Court of Appeals. Fortunately, this has occurred. In a cogent decision, Chief Judge Wilson, writing for a unanimous court, in  Scurry v. New York City Housing  Authority, 39 N.Y.3d 443 (2023), a consolidated appeal from Scurry v. New York City Housing Authority, 193 A.D.3d 1 (2d Dept. 2021) and Estate of Murphy v. New York City Housing Authority (NYCHA), 193 A.D.3d 503 (1st Dept. 2021), held  that the fact that an attack was targeted, rather than a crime of opportunity, would not alter the  traditional tools of analysis applicable to any negligent security action. The court rejected any distinction in analysis between a random and targeted act of violence by a perpetrator breaching lax building security.

In its seminal cases on negligent security, the Court of Appeals approached its analysis by applying the same general principles that apply to any tort case. As in any such case, foreseeability and proximate cause are significant elements. In Nallan v. Helmsley-Spears, 50 N.Y.2d 507 (1980), a foundational case in the area of negligent security, the plaintiff was shot in the lobby of the defendant’s building  by a would-be assassin. The court found that, based upon the history of criminal activity in other parts of the building, albeit not in the lobby, a criminal act in the lobby was a foreseeable possibility. The plaintiff produced an expert who opined that an attendant in the lobby would have had the effect of deterring criminal activity in the building’s lobby, whether the crime was one of random violence or  a deliberate, planned attack. The court held that the testimony of plaintiff’s expert and other evidence presented by plaintiff made a prima facie showing of negligence.