Stalzer v. European American Bank
| Citation | 113 Misc.2d 77,448 N.Y.S.2d 631 |
| Parties | Marian STALZER, Claimant, v. EUROPEAN AMERICAN BANK, Defendant. |
| Decision Date | 15 March 1982 |
| Court | New York City Court |
Marian Stalzer, pro se.
Jon D. Karnofsky, South Farmingdale, for defendant.
DECISION AFTER TRIAL
This "Small Claim's" action seeks "Return of money, for lack of security, resulting in loss of money ($502.02)". Tried on February 17, 1982, it presents an issue of apparent first impression involving no reported New York authorities and out of state decisions directly on point.
What duty, if any, does a bank owe a "business invitee", who after cashing her check, was the victim of a robbery by a third party while still inside the bank premises?
At the conclusion of claimant's case and again at the end of defendant's case, defendant-bank moved to dismiss (a) for failure to state a cause of action, and (b) that claimant failed to sustain her burden of proof on the issue of defendant's gross negligence. Decision was reversed.
Upon an examination of the trial transcript and all the papers submitted by both sides in connection with defendant's motion to dismiss, this court finds the pertinent facts and circumstances surrounding the robbery of claimant to be as follows:
PERTINENT AND UNDISPUTED FACTS OF THE ROBBERY
On Thursday, September 24, 1981, at or about 1:00 p.m., claimant, employed by Gulf & Western Industries Inc., went to defendant's branch banking premises located in the basement of the Gulf & Western Building right off an entrance to a subway. Claimant did not maintain an account with defendant, but, as was the custom of many Gulf & Western employees, she went to this branch to cash her payroll check. Claimant then cashed her payroll check ($502.02), drawn on defendant by Gulf & Western, her employer, and stepped away from the teller's station. She then went to a table, provided by the bank for validation of money or for the use of customers in the handling of other banking transactions, to count her money, when a man came from behind claimant and quickly snatched away her money. Claimant let out a scream, saying "I was robbed."
The facts as to what happened after the robbery and the assistance or lack thereof given claimant by the bank are in dispute. Claimant maintains that she immediately reported the robbery to a bank employee whose immediate response was: "We're not responsible." As nothing was done about the incident by the bank, claimant went back to her office located in the same building and told her employer about the occurrence in the bank and the loss of her money. The employer called the bank and the security director of Gulf & Western, who then called the police and reported the crime.
Defendant's witness, a bank teller, testified that he had heard a noise in the branch and that he investigated a "commotion", and was told by somebody that a woman had been robbed in the bank. He identified claimant as the person who was the victim of the robbery and at trial stated that after the event in question he saw some money still in claimant's hands and offered to count it for her. Claimant resisted saying she feared the perpetrator would return and kill her.
Claimant, in laymen's words, alleged that a proximate contributing cause of her loss was the bank's lack of security, or inadequacy of security, and that the bank ought reasonably to have anticipated the possibility or probability of harm to its business invitees, including claimant, and guarded against it. In support of her contention that the bank owes a person such as herself an unspecified duty of protection, claimant maintained that the bank branch did not have a security guard at the time of the occurrence and that the bank-installed glass bandit barriers separating the tellers from the rest of the bank premises (and other security or anti-crime equipment) are for the primary protection of the bank employees not the customers.
Claimant in further support of her contention that the bank in the exercise of reasonable care could have foreseen or anticipated the robbery which victimized her and could have guarded against it, makes the following points:
1) The bank branch had been robbed on prior occasions;
2) The bank was in a superior position to know about bank robberies in general and about any specific aborted or unsuccessful robbery attempts at the bank branch;
3) The bank branch was in a vulnerable location being in the basement of a building providing easy access to the bank from the subway;
4) The bank knew or should have known that Thursday, the day of claimant's robbery, was a Gulf & Western pay day when unusually heavy cashing of checks by Gulf & Western employees occurred.
The bank conceded that its branch at the Gulf & Western building was successfully robbed on October 12, 1978 and that an unsuccessful attempt was made at the night window outside the bank on July 25, 1980 when perpetrators were apprehended and arrested. The bank also conceded that this branch office was (and still is) "used almost exclusively by Gulf & Western employees".
The bank takes the following positions as to the duty, if any, it owes a business invitee such as claimant:
1) In order to recover, claimant has the burden of showing defendant grossly negligent;
2) The bank is a store like any other store and owes its customers no special duty or care;
3) The bank does not insure the safety of its customers. In this regard, it was stated, "We are required to keep the premises in a reasonably safe condition for the use of customers who enter for the purpose of banking transactions and do continuously renew protection and security."
4) A customer is on his or her own while inside the bank before getting to the teller's station or leaving the teller's station. .
5) The security at the bank-branch is reasonably adequate and therefore defendant met its duty to provide reasonable care. That plaintiff's loss was not forseeable and therefore it is not liable for plaintiff's loss.
The bank in support of its contention that it had taken adequate security precautions at its branch presented the testimony of its Senior Investigator in charge of Manhattan branches. He testified that the branch in question has standard barriers, cameras, alarms and concave mirrors from which tellers can observe anyone entering through the door into the bank. Concerning security guards, he testified:
"No. We have guards only in specific branches that would not have standard barriers.
It's discovered, through experience, that the Police Department came up with figures that guards are basically ineffective in the greater majority of the time when there is a holdup. They have been at lunch.
However, if they are present they are unable to stop it.
The guards we have have orders that if there is a holdup they are not to get involved in order to safeguard the customer and employees."
Defendant further contended that its plain clothes investigators visit its branch offices from time to time to discuss protection and security with branch management and insure that they are in compliance with Regulation "P" of the Federal Reserve Board: "Minimum Security Devices and Procedures for Federal Reserve Banks and State Member Banks."
This Court believes that the general public assumes that when one is present in a bank premises to transact business that he or she is present in a safe and secure place; that the public reaches this conclusion of confidence by reason of the very special character and purpose of a bank, namely, that it receives, keeps and distributes money, money being a most convertible commodity. This special characteristic in public...
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