State Court Rules on Tenant Security Cases
by Madeline Lee Bryer

The day before Thanksgiving, the state’s highest court restored to tenants the ability to successfully sue their landlords for inadequate security. The main legal issue at stake in the three cases the Court of Appeals decided was how much owners can be held responsible for crimes committed in their buildings. Since the 1960s, landlords have been held responsible to injured tenants if security is inadequate. But to win a lawsuit, the tenant has to prove that the criminal did not belong in the building. Obviously, if the criminal was another tenant or somebody lawfully invited into the building, the adequacy of the building security would not matter, because the person had a right to be there. If the tenant can show that the person did not belong in the building, but gained access because of a broken lock or other negligent maintenance, then the landlord can be held responsible. It has always been up to the tenant to prove that the criminal did not belong in the building. Tenants have been able to prove this either directly or circumstantially. Direct proof would be, for example, that the criminal was apprehended and known to neither live in the building nor be visiting. Circumstantial evidence could be that the tenant had lived in the building for a long time and knew their neighbors and their guests, and the criminal fit in neither group. It would be up to a jury to decide whether this proof was sufficient.

Over the past five years, however, the state’s lower courts—trial courts and the Appellate Division—have been dismissing lawsuits where the tenant relied on circumstantial evidence. In one of the cases decided by the Court of Appeals, Burgos v. Aqueduct Realty, the tenant had been beaten and robbed in her apartment by two unidentified men. Her building had no working locks on the entrance doors. The lower courts dismissed her case because she was unable to identify her assailants as uninvited strangers in the building.

In another case, Gomez v. New York City Housing Authority, the lower courts dismissed a 12-year-old tenant’s case on the grounds that her testimony—that she had never seen her attacker before, and that he made no effort to conceal his identity and fled the building—was insufficient to prove that he did not belong there.

The Court of Appeals reversed the dismissals in both the Gomez and the Burgos cases. “Because victims of criminal assaults often cannot identify their attackers,” Chief Justice Judith Kaye wrote, “a blanket rule precluding recovery whenever the attacker remains unidentified would place an impossible burden on tenants.”

Regrettably, however, in the third case, Price v. New York City Housing Authority, the Court of Appeals decided that in a negligent-security case involving a serial rapist, it was permissible for a jury to hear “expert” testimony from a “criminal profiler” that “nothing could have stopped the rapist” and to hear testimony from another alleged victim who said she was attacked even though her building had a lock.

In Price, the plaintiff was a 17-year-old tenant at the Lincoln Houses in Harlem who was raped in her building. While the Housing Authority admitted that the rapist was an intruder and that its failure to have a lock on the entrance door was negligent, it argued that even if there had been a lock, the rapist would have attacked the tenant anyway. The profiler was a partner in a self-described behavioral-science consulting firm made up of four retired FBI agents. He was permitted to testify beyond his training in analyzing information about suspects, and told the court that he could get inside the mind of the rapist and judge his future actions. This expert had no training in psychology or the behavioral sciences.

The court also allowed the judge to instruct the jury that if they were going to find in the tenant’s favor, they had to rule out any possibility that the assailant could have gotten into the building in some way other than through the open door.

While the Price decision casts a serious cloud over the Burgos and Gomez cases, these recent rulings go far in restoring an even playing field between the rights of tenants and the duties of landlords.