In order to make out a prima facie case of negligence, a plaintiff must prove: (1) that the Security Company owed him a duty of care, (2) that the Security Company breached that duty of care, and (3) that plaintiff’s injuries were proximately caused by that breach of the duty of care. See Solomon v. City of New York, 66 N.Y.2d 1026 (1985). Moreover, plaintiff must demonstrate the Security Company’s alleged negligence was a “substantial factor” in causing the alleged injuries. See Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308 (1980).
The first, and most crucial defense is the well-settled doctrine that the Contractor cannot be negligent if no duty is owed to the plaintiff. See Safa v. Bay Ridge Auto, 84 A.D.3d 1344 (2d Dep’t 2011). “Absent a duty running directly to the injured person, there can be no liability in damages, however careless the conduct or foreseeable the harm.” 532 Madison Ave. Gourmet Foods, Inc. v. Finlandia Ctr., Inc., 96 N.Y.2d 280, 289 (2001). A Contract Security Company that does not contract to protect the safety of persons on a property, owes no duty to someone who is injured by the acts or negligence of a third-party.
The recent decision of Ramirez v. Genovese, 117 A.D.3d 930 (2d Dep’t 2014) is instructive. The plaintiff, a taxicab driver, was allegedly injured due to an altercation with several students on the campus of a college due to a fare dispute. Plaintiff alleged that a security guard employed by a contract security company on-campus, did nothing to intervene or stop the altercation when it became physical. The Ramirez Court found in favor of the security officer and the security company. In doing so, the court ruled that a contractual obligation, standing alone, generally will not give rise to tort liability in favor of a third party.
Before an injured party may recover as a third-party beneficiary for failure to perform a duty imposed by contract, it must clearly appear from the provisions of the contract that the parties thereto intended to confer a direct benefit on the alleged third-party beneficiary to protect him or her from physical injury. See id.; See also Ramirez v. Genovese, 117 A.D.3d 930 (2d Dep’t 2014); Dabbs v. Aron Sec., Inc., 12 A.D.3d 396 (2d Dep’t 2004); Haston v. E. Gate Sec. Consultants, Inc., 259 A.D.2d 665 (2d Dep’t 1999).
Even where there is evidence that the Security Company’s negligence in performance of its duties may have contributed to the accident, the Security Company is still entitled to dismissal of a plaintiff’s claims due to the lack of evidence that plaintiff was an intended third-party beneficiary of the contract. See Williams v. Stevenson Commons Associates, 31 A.D.3d 289, 290 (1st Dep’t 2006). This is consistent with well settled law that independent security companies owe no common-law duty to protect the public from the acts of a third-party. See Buckley v. I.B.I. Security Service, Inc., 157 A.D.2d 645, 549 N.Y.S.2d 744 (2nd Dept. 1990); See also Lebron v Loco Noche, LLC, 82 A.D.3d 669 (1st Dep’t 2011); Rahim v. Sottile Sec. Co., 32 A.D.3d 77, 817 N.Y.S.2d 33 (1st Dep’t 2006).
Another ready example is Anokye v. 240 East 175th St. Hous. Dev. Fund Corp., 16 A.D.3d 287, 792 N.Y.S.2d 417 (1st Dep’t 2005), a case involving a security contract for the protection of a residential building, where the evidence established that (1) locks to lobby doors were not functioning; (2) the contracted-for security guard was improperly not present at his post at the time of the subject incident that resulted in plaintiff’s-decedent’s death; and (3) the location at issue had been the situs of known drug activity and a haven for prior criminal activity, including burglary. See Anokye, 16 A.D.3d at 288. Notwithstanding these facts, the Court affirmed the Trial Court’s dismissal of the action against the security contractor on the ground that plaintiff was not an intended beneficiary of the security contract. See Id.
The court’s decision in Dabbs v. Aron Security, Inc., 12 A.D.3d 396 (2d Dep’t 2004) is also instructive. There, plaintiff was attacked by a fellow student at school and sued the security company that contracted to “protect the physical facilities and the welfare of the students.” Dabbs, 12 A.D.3d at 497. The higher court reversed the Supreme Court’s denial of defendant’s summary judgment motion, noting “that the injured plaintiffs were not third-party beneficiaries of its contract to provide unarmed security service, as the contract did not contain any express provision that it would protect students from physical injury or attack.” Id.; See also Charleen F. v. Cord Meyer Dev. Corp., 212 A.D.2d 572 (2d Dep’t 1995); Abramian v. Travellers Hotel Assocs. of LaGuardia, 203 A.D.2d 398 (2d Dep’t 1994); Safa v. Bay Ridge Auto, 84 A.D.3d 1344 (2d Dep’t 2011); Marun v. Sunrise Mall Assocs., 249 A.D.2d 519 (2d Dep’t 1998); Sostre v. City of New York Hous. Auth., 150 A.D.2d 766 (2d Dep’t 1989).
Any discussion of Contractor Liability must mention the narrow, limited exceptions to the general rule of non-liability. The Court of Appeals in Schwint v. Bank St. Commons, 74 A.D.3d 1312, 1313 (2d Dep’t 2010). “ identified three situations wherein the party who enters into a contract to render services may be held liable in tort to a third party: (1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, launches a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting parties duties; (3) where the contracting party has entirely displaced the other parties duty to maintain the premises safely.” Schwint, 74 A.D.3d at 1313 quoting Espinal v. Melville Snow Contractors, Inc., 98 N.Y.2d 136, 140 (2002) (internal citations omitted); Piazza v. Regeis Care Ctr., L.L.C., 47 A.D.3d 551 (1st Dep’t 2008).
Thus, the defense of a claim against a Contractor such as a Security Company must assess whether any of these exceptions exists early, and include a robust defense to establish that no duty of care is owed to the plaintiff.
By Dylan C. Braverman, Esq.