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Westchester County, NY

In this action, the plaintiff contended that the defendant city, which owned a nine story parking garage that was attached to a shopping mall, negligently failed to provide any security despite some prior serious crimes over the past several years in the actual parking garage and the adjoining mall. The plaintiff contended that the assailant, who had confessed to killing the decedent, had decided to commit a carjacking at the defendant’s lot because he was aware of the absence of security.

The plaintiff established that the some five robberies, three assaults and a homicide had occurred in the parking garage in the previous five-year period. The plaintiff also pointed to the absence of any security guards at the garage, the lack of a manned video surveillance system and the absence of any “panic” buttons in the garage. The plaintiff maintained that municipal police would occasionally ride through the area, but contended that there was no established schedule and that the police would only do so when they were not otherwise occupied.

The plaintiff, who did not present expert testimony, contended that the jury could reasonably determine, as a matter of common sense and logic, that the absence of any security guards or other security features rendered the area dangerous in violation of the City’s common law duty. The plaintiff further argued that the assailant’s knowledge of the absence of security was causally related to his selection of the parking garage to hunt for and eventually commit a failed carjacking.

The plaintiff offered two female witnesses who had been approached by the assailant shortly before the decedent was attacked. One witness was a patron who testified that she attempted to ignore the assailant when he tried to speak with her on the seventh level of the garage. Another witness also testified that she was frightened by the presence of the homeless assailant, who was disheveled and appeared to be out of place in the garage. The plaintiff argued that it was highly likely that the assailant chose this particular garage because he believed that he could get away with the crime in that specific parking garage.

The plaintiff argued that the assailant had ample time, due to the lack of security, to approach these prior individuals to ascertain if he should victimize them. After approaching at least four women in that specific location over a two hour period of time, the assailant observed the decedent and decided to attempt a carjacking and, based upon his extensive criminal history, a sexual assault. The plaintiff contended that additional security measures at the garage would probably have had a deterrent effect and would have prevented this individual from hunting for a potential victim over an extended period of time in the upper levels of the enclosed parking garage.

The defendant denied that plaintiff’s claims of alleged inadequate security were causally related to the incident. The defendant contended that the actions of the third-party assailant were the sole proximate cause of the incident. The defendant further argued that the jury should consider that an individual, who was intent on committing a crime, would do so irrespective of the security measures.

The plaintiff demonstrated that the decedent experienced significant terror and fright between the period of first being abducted by the assailant and first being stabbed by the assailant. Based on the evidence, the plaintiff argued that decedent was abducted by the assailant, escorted by knifepoint to her vehicle, that the assailant attempted to force her into the passenger side of the vehicle in order to maintain physical control of the situation, and that the decedent briefly broke free and ran a short distance before the assailant regained physical control and stabbed her two times in the chest. The above period of conscious pain and suffering by the decedent continued for several minutes.

The plaintiff also demonstrated that decedent experienced significant terror and fright between the time of the first stabbing and her eventual loss of life. The plaintiff presented witnesses who testified as to hearing the decedent scream three times. The plaintiff demonstrated that the decedent was conscious and aware for a few minutes after the first stabbing.

The decedent left a husband, who was the step father of her two adult sons, age 23 and 29 at the time of death. The younger son lived at home. The plaintiff maintained that decedent’s children suffered significant loss of guidance and advice. The plaintiff did not introduce evidence of lost income.The jury found the defendant ________% negligent and did not assess liability against the non-party assailant, who’s liability was considered on the verdict sheet pursuant to CPLR Art. 16. The jury then awarded $________, including $________ for conscious pain and suffering that occurred before the decedent was stabbed; $________ for conscious pain and suffering between the time she was stabbed and the time she lost consciousness; a total of $________ to the two sons for past monetary loss; $________ to the sons for future monetary loss; $________ to the husband for past monetary loss; $________ to the husband for future monetary loss pain and suffering; and $________ in funeral expenses.

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