This was originally published on the SGR Blog.
Was Crime Foreseeable/ Bank Liable for Injury?
On August 30, 2010 Raya Takhalova allegedly suffered personal injuries and mental anguish as a result of a bank robbery from a customer at a bank operated by Apple Bancorp., Inc. The complaint alleged that Apple was negligent “in failing to utilize proper and adequate security devices, and [Apple] its agents, servant and/or employees were otherwise guilty of carelessness and negligence, both active and passive.”
Apple moved for an order granting summary judgment and dismissing the complaint, contending that it should be awarded summary judgment given that the bank robbery was not foreseeable and as a result Apple was not negligent as a matter of law. Apple argued that any alleged injuries suffered by Takhalova were not proximately caused by the lack of adequate security.
Takhalova opposed the motion, and argued that it should be denied in that Apple failed to meet its prima facie burden. Takhalova contended that Apple did not adequately establish that it was in compliance with industry guidelines and customary protocols in relation to the security of the bank.
The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension. Third-party criminal conduct is considered foreseeable as a matter of law where it is reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the bank. As a result, a bank must show a lack of notice of criminal activity in order to establish that a risk of robbery was not foreseeable and that there was no duty of care on the part of the bank to the customer. But without evidentiary proof of notice of prior criminal activity, the bank’s duty reasonably to protect those using the premises from such activity never arises.
Turning to the merits, the Court found that Apple met its prima facie burden by showing that the robbery was not foreseeable. Apple relied primarily on the affidavit of James G. Matera, the bank’s Executive Vice President for Consumer Banking. In his affidavit, Matera stated that “[i]n the ten years prior to August 30, 2010, the [Apple] branch located at 4519 13th Avenue, Brooklyn, New York, did not experience any attempted armed robberies.” Apple “complied with the requirements of 12 C.F.R. 326.3, which contains the Minimum Security Procedures required under the Minimum Security Devices and Procedures and Bank Secrecy Act.” In opposition, Takhalova failed to raise a material issue of fact that would show that such an attempted robbery had occurred in the past or was otherwise reasonably foreseeable.
Takhalova’s complaint against Apple was dismissed.