Monday, February 20, 2012

Rape Due To Negligent Security Leads to $20M Verdict

As I have noted in the past, Pennsylvania negligent security cases can be tricky for plaintiffs because juries often apportion the majority of liability to the intentional actor rather then the defendant whose negligence allowed the intentional harm to occur. That hurdle was overcome in a negligent security case in Houston, Texas that just resulted in a jury award of $20 million to a woman who was raped in her apartment, which had not told residents about previous sexual assaults there.

The negligent security lawsuit was brought against The Promenade Cullen Park, a large real estate holding company, in June 2010. The assailant entered the plaintiff's second-floor apartment by jumping onto the balcony and forcing open the balcony door. The man then waited inside for the woman to return.  He then attacked and raped the woman for nearly eleven hours.

The liability theory against the real estate company was that Promenade Cullen Park knew of a break-in that had occurred just two weeks earlier in an apartment directly next to hers. The plaintiff's complaint alleged "Despite defendant PCM's knowledge that an extreme risk of danger existed for its female residents, (especially those living in a second story unit with a balcony), it failed to warn them of the potential harm they faced.  Instead, it created an even greater risk by deceiving the tenants and obfuscating the actual events that had occurred".

The plaintiff's attorney who obviously did a magnificent job in this case, Troy Chandler, reported after the verdict that "The apartment complex issued a notice that an apartment had been broken into - the same warning that they would send out if a bicycle was stolen off a balcony or a TV was stolen out of an apartment. The notice failed to mention that a burglary occurred, that the assailant waited inside, that a tenant was attacked and that there had been an attempted rape."  The woman, who lived alone, renewed her lease only days after the earlier break-in.  One can imagine that she may not have done so had she known about the full extent of the prior break in.  It could be argued (and I am sure it was at trial) that PCM deliberately watered down the extent of the prior break in and attack so they would not lose customers like the plaintiff.

One of the many interesting elements of this case was that the plaintiff sued PCM both for negligent security and deceptive trade practices.  One would not typically expect to find a claim for unfair trade practices in a complaint such as this.  PCM's intentional withholding of information to gain business, however, appears to have been the hook plaintiff's counsel used to support this claim.  I can only assume from the size of the verdict that the jury in this matter found for the plaintiff under both counts.

The jury awarded $7 million for physical pain and mental anguish, $5 million for future mental anguish and $8 million for violating the Texas Deceptive Trade Practices Act after a week-long trial.
The attacker, Daryl Anthony Martin, now 24, was arrested shortly after the incident. He pleaded guilty to sexual assault in 2010, and was sentenced to 20 years in state prison, it has been repoted.

This case will no doubt draw criticism and factual distortion by the tort reform pundits clamoring that once again a run away jury has hurt us all.  But that could not be further from the truth.  Because of the size of this verdict, all real estate holding companies, rental properties, and apartment complexes are on notice not to engage in this type of behavior that puts everyone at risk.  In this case, it was this poor woman that suffered the atrocity.  But such a break in could happen to anyone if the safety facts are withheld in the name of saving profit.  This case has created a safety rule that makes all of us safer.  You can't argue with that.  Way to go Troy Chandler.

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