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Actions of City Worker were Discretionary, Case Dismissed.

In this case, a bicyclist brought suit against the city off New York seeking damages for personal injuries sustained when she hit pothole. Following jury verdict for bicyclist, city moved to dismiss the case. The Supreme Court, New York County, Paul G. Feinman, J., held that action of city employee in permitting bicyclist to enter construction area was discretionary and the case should be dismissed. .

The Plaintiff was badly injured on November 5, 2005, when she rode her bicycle into a large pothole while biking under an overpass on the eastbound 65th Street transverse which cuts through Central Park. She and her then-boyfriend had been given permission to use the transverse by an individual who was later determined to be a New York City Department of Transportation (DOT) employee who was setting up a barricade to block vehicular traffic on that roadway prior to repairing the road. They allege that defendant City of New York owns and maintains the transverse and was under a duty to keep it safe and in good condition, and although it had received prior written notice of the street's dangerous condition, it had failed to timely correct it. The Plaintiff testified that on the morning of November 5, 2005, the day before the annual New York City Marathon, she and her boyfriend were riding their bikes to join others for a bike ride commencing on the east side of Manhattan. Along Central Park West were blue police barricades set up for the marathon, and the 96th Street entrance to the park was closed for the marathon They then rode down to the 65th Street transverse where “guys were putting up cones.”
The boyfriend approached the worker “with the cones and asked him if we could go through, and he said sure, go ahead.”. It was her understanding that “it was okay to go,” and that there “was no reason to think there was anything wrong. The two proceeded to ride on the transverse,there were no warning signs or anything to suggest any danger. At the area of the second overpass, the sun was in her eyes, but she was able to see a big hole in the pavement ahead of her, and she moved to the left, and then rode into a bigger hole, where she suffered injury.
After this collision he saw a City vehicle approaching from the east, driving west. They did not see any construction equipment or pile of hot asphalt.
DOT crew supervisor Donald Bowles testimony was that he supervised the milling and resurfacing work of streets in New York County and sometimes supervised pothole crews On November 5, 2005, he and his crew had been sent to “do a special condition that was reported on the 65th Street Transverse,” a street that supports two-way traffic A “special condition” is a project involving a defect “bigger than a pothole” but less involved than road resurfacing The report indicated the condition was in the eastbound lane, but according to Bowles, there was nothing wrong with the eastbound lane, and the work they did on that day was in the westbound lane Ultimately, the work done that day encompassed 16.4 square yards of repair in one continuous area Bowles conceded that in fixing the condition, the workers may have opened some of the street on the eastbound side, but stated that the existing condition was entirely within the westbound lane. Neither Bowles nor the other DOT worker observed the bicyclists ride away as they were “busy setting” up the street closure. Bowles also testified that when asked by the bicyclist “[c]an we still get through,” he and the other DOT worker both said, “Yes, go ahead”.

Defendant City argues that it was improper to ask the jury whether the City was negligent as concerns the actions of its DOT employee, Donald Bowles when he permitted plaintiff and her boyfriend to enter Central Park on their bicycles at the 65th Street transverse. It argues that the DOT employee, who was closing off the street to vehicular traffic, was acting in his discretionary governmental capacity to control traffic, for which the City is immune from a finding of negligence. In addition, the City argues that even if it is determined that traffic regulation in this matter was ministerial in nature rather than discretionary, plaintiff has not alleged and did not prove that the City owed her a special duty of care such as would cause the City to be liable for plaintiff's damages. In sum, it argues that there is no claim on which plaintiff can recover damages against the City based on the conduct of the DOT employee, and the verdict must be set aside and entered in favor of defendant.

Cases on governmental tort liability have long distinguished between discretionary and ministerial acts of government officials” ( McLean v. City of N.Y., 12 N.Y.3d 194, 202, 878 N.Y.S.2d 238, 905 N.E.2d 1167 [2009] ). “[W]hen official action involves the exercise of discretion, the officer is not liable for the injurious consequences of that action even if resulting from negligence or malice.' ” ( McLean, at 202, 878 N.Y.S.2d 238, 905 N.E.2d 1167, quoting Tango v. Tulevech, 61 N.Y.2d 34, 40, 471 N.Y.S.2d 73, 459 N.E.2d 182 [1983] ). As to negligent ministerial acts, they will not be otherwise tortious unless the plaintiff can show “a duty running directly to the injured person,” and that the duty breached is “more than that owed the public generally.” ( McLean at 202, 878 N.Y.S.2d 238, 905 N.E.2d 1167, quoting Lauer v. City of N.Y., 95 N.Y.2d 95, 99–100, 711 N.Y.S.2d 112, 733 N.E.2d 184 [2000] ). Thus, the rule is that government action, if discretionary, is never a basis for liability, and ministerial action may be only if it violates a special duty owed to the plaintiff, apart from any duty to the public in general ( McLean, at 202–203, 878 N.Y.S.2d 238, 905 N.E.2d 1167).

Defendant argues that DOT's Bowles was engaged in the discretionary function of traffic control at the time plaintiff and Hoberman approached him at the 65th Street Transverse. He exercised governmental discretion when he decided to close the 65th Street transverse to vehicular traffic in both directions in order to complete the street repairs. Bowles could have decided to close only the westbound lane, given that the damage was localized under one overpass on the westbound side, but used his discretion to close both lanes. Similarly, he used his discretion, based on the crew not being set up to work, in permitting plaintiff and her boyfriend to ride through. These decisions, argues the City, pertained to traffic control, a discretionary function. Thus, the City argues that any negligence in failing to warn plaintiff and Hoberman of the street condition under the overpass cannot be a basis for liability. A municipality or governmental agency is engaged in proprietary activity when it performs an activity traditionally engaged in by the private sector ( see Bass v. City of N.Y., 38 A.D.2d 407, 411, 330 N.Y.S.2d 569 [2d Dept.1972], affd. 32 N.Y.2d 894, 346 N.Y.S.2d 814, 300 N.E.2d 154 [1973] ). One characteristic of a proprietary duty is that the governmental workers are charged with the responsibility to physically maintain the property at issue ( Balsam v. Delma Eng'g Corp., supra, 90 N.Y.2d at 968, 665 N.Y.S.2d 613, 688 N.E.2d 487). When a municipality or State acts in a proprietary capacity, the municipality or State will be subject to the same principles of tort law as a private entity ( see Miller v. State of N.Y., 62 N.Y.2d 506, 511, 478 N.Y.S.2d 829, 467 N.E.2d 493 [1984] [State acting as landlord of college dormitory] ). Examples of proprietary functions cited by plaintiff include maintenance and repair of water mains ( D & D of Delhi, Inc. v. Village of Delhi, 47 A.D.3d 1117, 1118, 849 N.Y.S.2d 716 [3d Dept.2008] ), snow removal from steps of State-owned building ( McGowan v. State of N.Y., 41 A.D.3d 670, 671, 839 N.Y.S.2d 145 [2d Dept.2007] ), and operating a public park ( Vestal v. County of Suffolk, 7 A.D.3d 613, 776 N.Y.S.2d 491 [2d Dept.2004] ). (Doc. 31 [Pl. Aff. in Opp. ¶ 8] ).

Plaintiff argues that acts and omissions relative to highway and street maintenance are deemed proprietary when performed by highway or maintenance personnel (Missano v. Mayor, 160 N.Y. 123, 129, 54 N.E. 744 [1899] ). Missano holds that as to repairs and cleanliness of streets, the municipality acts as a “legal individual,” rather than in its governmental function. Plaintiff also cites Storrs v. City of Utica, 17 N.Y. 104 (1858), which holds that a municipality is under a duty, during the time it is excavating a street for a public improvement, to take measures to warn travelers of the danger. She points to various more recent decisions holding municipalities or governmental authorities negligent when non-police governmental employees failed to take appropriate safety measures at municipal road sites. For instance, in Grant v. Ore, 284 A.D.2d 302, 303, 725 N.Y.S.2d 386 (2d Dept.2001), where the City of New York was performing maintenance work on a bridge and provided only an illuminated arrow board directing traffic to merge but no warning signs concerning the maintenance work, it was held partially liable for the plaintiff's resulting motor vehicle injuries because of its nondelegable duty to maintain its roads in a safe condition. In Humphrey v. State of N.Y., 90 A.D.2d 901, 456 N.Y.S.2d 861 (3d Dept.1982), aff'd 60 N.Y.2d 742, 469 N.Y.S.2d 661, 457 N.E.2d 767 (1983), the State was held 60 percent liable for its negligence in not giving adequate, unambiguous warnings of conditions on the highway on which the decedent crashed. In Majka v. Haskell, 301 N.Y. 206, 93 N.E.2d 641 (1950), although the municipality was found to have discharged its duty by closing to pedestrians an area of damaged sidewalk on a viaduct, it failed in its duty to post warnings to pedestrians at the entrances to the viaduct about the condition, resulting in the plaintiff entering and crossing the viaduct on foot and stepping into traffic at the damaged area where he was struck by a vehicle.

Here, plaintiff's claim against the City is that Bowles, a DOT employee on the job to repair the transverse potholes, negligently allowed her entrance to cross the 65th Street transverse without warning her of the defect in the road ahead. Under this theory of liability, it is not the existence of the potholes or how they were created, nor whether the City had prior written notice of their existence for which she seeks to hold defendant liable, both of which were considered by the jury and rejected as bases of liability, and not the act of repairing the street, but rather his failure to warn. Bowles' inaction occurred while he and a crew member were carrying out his decision to close the transverse to vehicular traffic. He was not engaged in actual repair of the street, nor had his crew set up or started work at the site. Bowles, a DOT supervisor, clearly had the authority to manage street traffic for the safety of the driving public. Under Miller, the issue is not what municipal agency employs Bowles, but his inaction while closing off the street, out of which plaintiff claims her injury to have arisen. The conclusion that must be reached here is that he was acting in a discretionary capacity at the time Hoberman and plaintiff sought permission to cross.

None of the cases cited by plaintiff finding municipal negligence based on actions of its non-police employees, are persuasive here. For instance, in Grant v. Ore, supra, 284 A.D.2d 302, 725 N.Y.S.2d 386, the City was found to have failed in its non-delegable duty to maintain its roads in a safe condition when its workers, engaged in bridge repairs, did not put up signs warning of work ahead, although they did post an illuminated arrow board directing traffic to merge left. In contrast, here it is the decisions by Bowles to close off the street and then to allow plaintiff and her boyfriend through the transverse on their bicycles, that is at issue, not whether there were signs posted and work underway. Similarly, in Humphrey v. State, supra, 90 A.D.2d 901, 456 N.Y.S.2d 861, the State was held partly liable for not posting adequate warning signs of conditions on the highway. In Majka v. Haskell, supra, 301 N.Y. 206, 93 N.E.2d 641, as well, the municipality failed in its duty to post warning signs to pedestrians at the entrances to a viaduct about a dangerous condition on the viaduct sidewalk. In Ramos v. Triborough Bridge & Tunnel Auth., supra, 179 A.D.2d 471, 578 N.Y.S.2d 181, relied on by plaintiff for its discussion of the defendant's unpersuasive argument that its tow truck operator's judgment should be held to the same professional standard as that of a firefighter, there is no analysis of governmental versus proprietary action. Rather liability was found based on the employee's negligence.

Plaintiff's other arguments also lack persuasiveness. There is no allegation that Bowles made any representations concerning the safety of the roadway when he allowed plaintiff access to the transverse, and thus she cannot rely on Yau v. New York City Transit Auth., 10 A.D.3d 654, 781 N.Y.S.2d 778 (2d Dept.2004), lv. denied 4 N.Y.3d 701, 790 N.Y.S.2d 647, 824 N.E.2d 48(2004), or Ohlhausen v. City of N.Y., 73 A.D.3d 89, 93, 898 N.Y.S.2d 120 (1st Dept.2010). In Yau, the driver of a City bus was held liable because he waved to the plaintiff, a pedestrian, who relied on his signaling to her that it was safe to cross the street, to her detriment. Ohlhausen explains the well-established rule in these pedestrian cases, a gesture waving a pedestrian to walk across a street will “only constitute a proximate cause of the collision where the pedestrian relied on the implicit assurance of safety,” but if the pedestrian understood the driver's gesture to indicate only “that the driver would pause and allow him or her to pass, rather than as an assurance with regard to any other vehicles on the road, then the gesture cannot be said to have proximately caused the accident” (73 A.D.3d at 93–94, 898 N.Y.S.2d 120). Here, plaintiff seeks to argue that Bowles' affirmative answer granting permission to the two bicyclists to go through the transverse, is the equivalent of indicating that there was nothing at issue with the street ahead. The situation is not analogous to the pedestrian “wave on” cases, however, as plaintiff and Hoberman had the opportunity to actually speak with Bowles, rather than rely on the meaning of hand signals. Here, Hoberman only asked for permission, and permission was granted. Plaintiff was silent. Moreover, it is clear that the street was passable, as Hoberman, riding in front of plaintiff, rode safely through without incident. Plaintiff further argues that she justifiably relied on Bowles' granting permission, and that because he granted them permission to cross, a special relationship existed between the parties, as articulated in Cuffy v. City of NY, 69 N.Y.2d 255, 260, 513 N.Y.S.2d 372, 505 N.E.2d 937 (1987), such that the City must be held liable for her injuries based on his duty to warn. However, this argument fails on several grounds. The complaint does not articulate a claim of special duty ( see Davis by Walker v. Owens, 259 A.D.2d 272, 273, 686 N.Y.S.2d 31 [1st Dept.1999], lv. denied 93 N.Y.2d 810, 694 N.Y.S.2d 633, 716 N.E.2d 698 [1999] ). The claim was explicitly disavowed in plaintiff's papers submitted in opposition to the City's motion for summary judgment, which stated, “No special duty is created, contemplated or claimed. This is pure negligence.” (Doc. 23–5 [March 24, 2009 Pl. Aff. in Opp. ¶ 18] ). Even were the court to entertain the claim at this late juncture, after the jury's verdict, it cannot be found that plaintiff sufficiently established that the City assumed an affirmative duty to act on her behalf, the first prong that must be established under Cuffy, 69 N.Y.2d at 260, 513 N.Y.S.2d 372, 505 N.E.2d 937. Bowles made no promises whatsoever, and his action in granting them permission to bike through the transverse does not by itself establish a voluntary undertaking of a duty to act on her behalf such that plaintiff could be justified in relaxing her vigilance or foregoing other avenues of protection ( Cuffy, at 260, 513 N.Y.S.2d 372, 505 N.E.2d 937). Moreover, under McLean v. City, supra, 12 N.Y.3d 194, 878 N.Y.S.2d 238, 905 N.E.2d 1167, as previously stated, a discretionary governmental action is never a basis for liability, and ministerial action may be only if it violates a special duty owed to the plaintiff, apart from any duty to the public in general ( McLean, at 202–203, 878 N.Y.S.2d 238, 905 N.E.2d 1167).

Because Bowles' action was a discretionary governmental action, defendant's motion to set aside the verdict must be granted (CPLR 4404[a] ). There is in fact no valid line of reasoning and permissible inferences which could lead to the conclusion reached by the jury on the basis of the evidence presented at trial ( Shubbuck v. Conners, 15 N.Y.3d 871, 872, 913 N.Y.S.2d 120, 939 N.E.2d 137 [2010] ). The City's arguments are persuasive that its employee was undertaking a discretionary task and that any negligence by Bowles in failing to warn of the potholes' existence, cannot be imputed to the City. The City is immune from suit under the facts. Therefore, the jury should not have been posed the questions about whether Bowles' actions were negligent or were a substantial cause of plaintiff's injury.

For the foregoing reasons, the verdict must be set aside as against the weight of the evidence and judgment entered in favor of the defendants, dismissing the complaint. It is

ORDERED that the City's motion pursuant to CPLR 4404(a) to set aside the jury verdict on the ground that plaintiff failed to establish a prima facie case, and entering judgment in favor of the City as a matter of law is granted, and the branch of its motion in the alternative is denied as academic; and it is further

This constitutes the decision and order of the court.

Wittorf v. City of New York
33 Misc.3d 368, 928 N.Y.S.2d 842, 2011 N.Y. Slip Op. 21291

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