No Liability Limit for Security

SUMMARY OF PROVISIONS::

Section one amends section 1602 of the civil practice law and rules by adding a new subdivision (15) to provide that limitations on liability will not apply to any person who owns, manages, and/or controls property or provides security for said property who fails to provide security as required by law, rule, or regulation.

Section two provides the effective date and that the law shall apply to causes of action commenced or pending on or after such date.

JUSTIFICATION::

Where a tenant is raped by an intruder who gained access to the tenant's building through a defect in the building's security, New York is among a small number of states that asks a jury to apportion liability between the rapist and the negligent landlord who failed to keep the building secure. This leads to an unintended and bizarre result when the victim attempts to recover damages from the negligent landlord for the personal injury suffered at the hands of the rapist. Under current law, if the negligent landlord is found to be 50% or less liable for the injury, the landlord's liability is limited to his "equitable share" based on the "relative culpability" of each person contributing to the total liabil- ity. The only time this limitation, on liability of the landlord is not imposed is when the other person contributing to the liability, i.e. the rapist, cannot be found.

Accordingly, in the case of the raped tenant, a jury will likely find the rapist to be more than 5015, if not 100%, liable for the victim's injury, freeing the landlord from liability, even though the landlord failed to maintain adequate security at the time of the assault.

There is another curious consequence that results from the application of this limitation on liability. Current law provides that the limita- tion on liability is not applied where the other person responsible for the victim's injury cannot be found. So in the case of the raped tenant, if the rapist cannot be found, the limitation on liability of the land- lord will not be imposed and the victim may be able to recover fully for damages against the landlord for his failing to provide reasonable secu- rity. If, on the other hand, the rapist is found, the victim will likely recover little, if any, damages from the landlord since the limitation of liability will be applied based on the landlord's "relative culpabil- ity." The landlord's relative culpability will likely be deemed to be small as compared to the rapist's culpability, and almost all of the

liability imposed, on the rapist. One may surmise that the odds of recovering damages from the rapist are slim.

Current law, then, forces the victim to choose between cooperating with law enforcement to find her attacker and bring him to justice and not seeking to identify her assailant so that she can recover damages 100% from the landlord in her personal injury action. Prior to 2002, New York courts generally held that the law requiring apportionment of liability did not apply to personal injury actions involving a negligent actor (i.e., a landlord) and an intentional wrongdoer (i.e., a criminal who commits assault). Yet the Court of Appeals. in 2002 required allocation of liability, noting that the legislature would need to modify the law to clarify its intent regarding apportionment in these types of cases.

This bill will make clear that allocation of liability will not apply to person who owns, manages, and/or controls property or provides security for said property for failing to provide security as required by law, rule, or regulation.

LEGISLATIVE HISTORY::

2017-2018:S.0480(Peralta)-Died in Judiciary 2015-2016:S.1264(Peralta)-Died in Judiciary 2013-2014:S.0081(Peralta)-Died in Judiciary 2011-2012:S.0127(Peralta)-Died in Rules 2010: 5.7673 (Peralta) - Died on Third Reading

FISCAL IMPLICATIONS::

None.

EFFECTIVE DATE::

This act shall take effect immediately and shall apply to causes of action commenced or pending on or after such date.