Bank had no duty to protect ATM customer where there was no notice of prior criminal activity at facility

Williams v. Citibank, N.A., _ N.Y.S.2d _, No. 07599, 1998 WL 566774 (App. Div. Sept. 3,1998).

A New York appellate court held a bank had no duty to protect a customer who was assaulted while using the bank's automated teller machine (ATM) where the bank had no notice of prior criminal activity at the facility.

Here, a bank customer was attacked inside the vestibule of an ATM facility. He sued the bank, alleging inadequate security. Plaintiff claimed that ATMs attract crime and that this particular facility was in a high-crime area. The trial court denied defendant's summary judgment motion, finding there were issues of fact as to whether additional security measures were required.

Reversing, the appellate court noted an ATM owner has a duty to take reasonable precautions to secure its premises if it knows or should know that there is a likelihood of conduct on the part of third persons likely to endanger the safety of those using its facility. Here, plaintiff had failed to offer any evidence of prior criminal activity at the ATM facility. The court said evidence of prior criminal activity in the general neighborhood did not satisfy plaintiff's burden.

The court rejected plaintiff's argument that criminal activity at the facility was foreseeable because ATMs attract crime. Although it is conceivable that a person using an ATM might be subject to robbery, conceivability is not the same as foreseeability. The court said banks would be exposed to absolute and virtually limitless liability if it were to recognize a duty to protect ATM customers in the absence of any evidence of past criminal activity.

The court noted that, even if defendant did have a duty to protect plaintiff, there was no evidence that defendant had breached that duty. Defendant had provided a locking device on the ATM vestibule door, permitting ingress only by use of an ATM card; a video surveillance camera; and a telephone, among other things. The court said the only other imaginable security measure-posting a security guard 24 hours a day-would have been an unreasonable burden on defendant.

Accordingly, the court granted defendant summary judgment and dismissed plaintiff's complaint. [ Comment: See also Sturbridge Partners, Ltd. v. Walker, 482 S.E.2d 339 (Ga. 1997), 40 ATLA L. Rep. 263 (Sept. 1997). There, the Georgia Supreme Court held that a lack of previous sexual assaults at an apartment complex would not preclude a rape victim from suing a landlord for inadequate security where it had notice of prior burglaries on the premises. Prior criminal acts do not have to be identical to a particular crime, and a crime's foreseeability is generally a jury question, the court said. *Joseph Szczecko, Decatur, Ga., represented plaintiff.]

[Documents in Sturbridge are available through the Court Documents section at p. 403, courtesy of Mr. Szczecko.]

Copyright Association of Trial Lawyers of America Dec 1998
Provided by ProQuest Information and Learning Company. All rights Reserved