Resident suffers personal injury - does Condo owe duty to provide security February 18, 2019

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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Resident suffers personal injury - does Condo owe duty to provide security
February 18, 2019
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Resident suffers personal injury - does Condo owe duty to provide security
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            Facts of this case are fairly simple.  New condo owner was not provided access codes to get into condo complex in timely manner by the management company or the condo association.  He was attacked and injured outside the complex one night while waiting for another resident to come along and let him enter.  He sued the condo association and management company for failing to provide security.
            The condo rules contained an Exculpatory Clause that the condo had no duty to provide security and that every occupant was responsible for their own safety.
            Plaintiff’s claim that the condo association and management company owed a “duty” to provide security both on the condo premises and just off the premises [remember this attack took place just outside the gate of entry].   Plaintiff emphasized this was particularly so because Plaintiff was not provided the entry codes in timely manner.  The Court rejected these arguments finding that there was no “duty” and Plaintiff knew he didn’t have the codes.  [we get these arguments in alarm defense cases when the subscriber suffers a loss while knowing the alarm was not working].  In fact the Court found that no security was being provided and there was no duty to provide security.
            The lower court found, and the appellate court did not disagree:
            “In granting summary judgment to Beacon, the trial court concluded that (1) Beacon owed no duty to provide security on a public sidewalk, (2) Sadlowski had equal or superior knowledge that his access fob was inoperable at the time of the incident, and (3) Sadlowski assumed the risk of injury when he decided to physically engage with his attacker. As to the HOA, which again is not a party to this appeal, the trial court granted summary judgment for these same reasons but also for the additional reason that the condominium declarations included a valid and binding exculpatory clause as to the provision of security, relieving the HOA of the duty to provide same.”
            The condo declarations contained the following, which the Court accepted as an Exculpatory Clause:
            “The Association ... may, but shall not be required to, from time to time, provide measures or take actions which directly or indirectly improve safety on the condominium; however, each owner, for himself or herself and his or her tenants, guests, licensees, and invitees, acknowledges and agrees that ... the Association ... is [not] a provider of security and ... shall [not] have a duty to provide security on the condominium. Furthermore, the Association does not guarantee that non-unit owners and non-occupants will not gain access to the property and commit criminal acts on the property[,] nor does the Association guarantee that criminal acts on the property shall not be committed by other unit owners or occupants. It shall be the responsibility of each owner to protect his or her person and property[,] and all responsibility to provide such security shall lie solely with each unit owner.... [T]he Association shall [not] be held liable for any loss or damage by reason or failure to provide adequate security or ineffectiveness of safety measures undertaken”
            This case really focused and was decided on the issue of duty, or in this case, the lack thereof. 
            “[b]efore we can impose the duty to protect against the criminal acts of third parties, we must find that the defendant has a duty to control the security of the premises where the criminal act took place; if the [defendant] did not have any duty to control the security of the common elements, it cannot have had any duty to provide the same.”
             It’s an important decision for defense counsel handling alarm or security guard defense cases.  Case can be read in its entirety at 
http://www.kirschenbaumesq.com/article/sadlowski-v-beacon-management
      You can read the case in its entirety at http://www.kirschenbaumesq.com/article/taylor-v-atrium-medical-court-of-appeals
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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
ken@kirschenbaumesq.com
516 747 6700
www.KirschenbaumEsq.com