Feldman, Kronfeld & Beatty Law Blog

Monday, September 21, 2015

Olivia Brown’s Death & NYCHA: Are NYCHA's Lawyers Blaming the Victim?

On Thursday, the New York Post reported that “[s]eeking a dismissal of the mother’s wrongful-death lawsuit, lawyers for the New York City Housing Authority argued Olivia’s 2013 shooting at the Lincoln Houses, allegedly by a trespasser was ‘spontaneous’ and ‘unavoidable.’ All the risks, hazards and dangers were open, obvious and apparent to [Brown] and said risks, hazards and dangers were openly and voluntarily assumed by Brown.”

The New York Post reports this as a shocking development, but for those who represent parents who’ve lost children to the City’s negligence, this is an all-too-familiar response.

Crystal Brown, the mother of Olivia Brown, filed a lawsuit on October 20, 2014, against the New York City Housing Authority. She alleged, that “an armed assailant who was not a tenant of [the Lincoln Houses] was permitted to enter and remain at the premises” and NYCHA “had a duty to maintain the premises in a reasonably safe and secure condition for the tenants . . . [including maintaining] proper safety and security precautions to protect the plaintiffs against intruders and dangerous persons.” Brown v. NYCHA Complaint, paras. 12 & 13.

In the answer (not the motion of summary judgment, as the article seemed to suggest) filed on Thursday, the attorneys for NYCHA wrote, as an affirmative defense: “[A]t the time and place complained of in the plaintiff’s complaint, all the risks, hazards and dangers were open, obvious and apparent to the plaintiff’s decedent and said risks, hazards and dangers were openly and voluntarily assumed by the plaintiff’s decedent which caused and/or contribution [sic] to the alleged injuries death and alleged resultant damages.” Brown v. NYCHA Answer, para. 11.

Is this unusual in an answer for this kind of lawsuit?

This kind of lawsuit is known as a “premises liability” case. The duty of the owner of a building may include protecting individuals against injury caused by the conduct of third persons on the premises. Burgos v. Aqueduct Realty Corp., 92 NY2d 544 (1998). Governmental entities, such as NYCHA, when acting as landlords, are subject to the same duties that apply to private persons. NYCHA may be liable for failure to maintain minimal security measures, related to a specific building in the face of foreseeable criminal intrusion upon tenants. Miller v. State, 62 NY2d 506 (1984).

It is a defense to any premises liability case that the open and obvious character of the danger of the premises can raise issues that the plaintiff was partially at fault, therefore mitigating the defendant’s liability. Saretsky v. 85 Kenmare Realty Corp, 924 N.Y.S.2d 32 (1st Dept. 2011). It has become common practice in all premises liability cases that we've seen here at Feldman, Kronfeld & Beatty  for defense lawyers to allege that the plaintiff’s injuries came from an open and obvious condition and that the injuries were partially the plaintiff’s fault, regardless of the facts that were presented.

Every case is different, and no two defense lawyers will serve the exact same answer. But as we saw above, this kind of affirmative defense is the type of “cookie cutter” response that serves to protect defense lawyer’s premises liability clients and assert every possible defense to the claimed action, regardless of the facts presented. It takes a good trial lawyer to analyze the answer for both the logical and illogical affirmative defenses and appropriately analyze them for which ones pose the greatest risk to the successful resolution of a client’s claim.

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