ATM machines can be found everywhere. They are strategically located to provide bank customers with a quick and easy after hours banking experience. They are also placed by retail stores so their customers can have quick money to spend. Customers, who are interested in a quick withdrawal can just as quickly be a victim of an attack.
ATMs can be dangerous places because they attract crimes that include robbery, sexual assault, and physical attacks. A predator only has to be patient and wait for an unsuspecting ATM customer to arrive alone and provide them with the opportunity to commit a crime. Do banks and other establishments have a responsibility to keep the ATM users safe? More and more, the case law is saying, “Yes”.
Under Texas law, property owners and businesses are responsible for injuries that occur on their property, if the harm or danger was reasonably foreseeable. An ATM machine is like ringing the dinner bell for those hungry to harm innocent victims, so placing one in front of a business is an invitation to criminal action. Therefore, it is irresponsible not to take the added measures necessary to help ensure the ATM customers will be safe, and if additional actions are not taken, the case for negligent security could be made by an experienced attorney.
What is Negligent Security?
Negligent or inadequate security arises when the owner of private property or business fails to take the necessary precautions needed to keep others from harm. Under general common law, there is no duty to protect against harm caused by a third party, in this case, the attacker. The exception is, if criminal acts are foreseeable.
The courts have adopted the “Specific Harm” test to determine if negligent security is a cause of action in personal injury or wrongful death cases. The first of the three-part test is foreseeability. Arguably, the presence of an ATM machine makes crime conceivable, but the courts are split on if the crime is foreseeable.
The second part is the history of prior incidents of crime associated with the ATM in the case. If that particular ATM location has had several domestic violence incidents, the court may not be swayed by a single robbery.
The third part of the Specific Harm test the totality of circumstances. The court will analyze all of the information regarding the assault, including time and location of the property that housed the ATM. The courts that adopt this method of assigning liability are looking for inherent risks of after-hour transactions and crime-ridden areas. It is this third part of the test that really established if the owner had a duty to care for their customers.
In cases where violent crimes have taken place, the owner can be sued for personal injury or wrongful death for failure to provide adequate security for users of the ATM machine. Victims of the attacks at ATM machines are able to recover compensation for medical expenses, lost wages, and rehabilitation due to physical injuries, and recover damages for pain and suffering.
Examples of Negligent Security:
•Failure to provide security cameras.
•Failure to provide security guards.
•Failure to provide proper lighting.
•Failure to remove obstructions to view, like shrubs or trees.
•Failure to warn ATM users of the dangers during nighttime and non-business hour use.
•Failure to remove an ATM from a place that has repeatedly become a crime scene.
Texas Statutes, under Financial Code §59.308, sets the base standard for what is required for the safety of ATM users. The owner must consider lighting that complies with Section 59§307. The owner must also consider obstructions, including landscaping, vegetation, and the area of the ATM, access to the ATM and in the defined parking area for the ATM. The owner must also consider the immediate neighborhood of the ATM, as shown by local law enforcement records.
Normal Robbery vs. Bank Robbery
The type of robbery associated with an ATM many not make any difference to the victim involved in the robbery, but there are several different types of stealing. Larceny is a legal term that is often used to describe a thief. Larceny is generally categorized as a non-violent type of thief. Things that would fall under larceny criminal charges would be shoplifting or car theft, as long as the car was unoccupied.
Normal robbery involves some kind of violence. Examples include, taking money from a cashier at a store or breaking into an occupied home to steal personal property. It is a face-face theft. A victim who is robbed after making a withdrawal from an ATM machine would fit this category. The robber watches and waits while the transaction is being completed, and as the victim is returning to their car, the robber approaches them and demands the money. In this situation, the robber is taking the money from the victim after they took their money out of the ATM machine.
The term “bank robbery” means the robber is taking money directly from the bank. They may demand that a bank teller give them money, armed with a gun (armed robbery) or without showing any weapon, just making a verbal command. Bank robbery is a federal offence and carries federal penalties with it, because banks are federal institutions. If the robber is unwilling to accept the amount of money an ATM user just withdrew, he/she might approach the ATM user, prior to the transaction, and demand the ATM user withdraw the amount the robber demands. The robber in this scenario, uses the ATM customer, the customer’s card, account, and pin number to rob the bank. Even though the ATM customer was involved, they are not charged as bank robbers, and the real robber is charged for Federal Bank Robbery.
Safe use of ATM Machines
•Use ATM machines in public areas
•Use during business hours
•Park close to the ATM and lock the car doors immediately upon returning to the car.
•Survey the area before getting out of your car
•Try not to use an ATM alone, take a friend or a dog
Try not to be a victim by being smart, think about how you do your banking, where you do your banking, and when you do your banking.
If you have suffered a personal injury, call the experienced Dallas injury attorneys at Crowe Arnold & Majors, LLP today for a free consultation.
