| St. Andrew v O'Brien |
| 2007 NY Slip Op 08341 [45 AD3d 1024] |
| November 8, 2007 |
| Appellate Division, Third Department |
| Leslie St. Andrew et al., Individually and as Parents and Guardiansof Louis St. Andrew IV, an Infant, Appellants-Respondents, v Ashley K. O'Brien et al.,Respondents-Appellants, and Italian Community Center of Troy, New York, Inc., et al.,Respondents. |
—[*1] Hiscock & Barclay, Albany (Colleen D. Galligan of counsel), for respondents-appellants. Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany (Leah W. Casey ofcounsel), for Italian Community Center of Troy, New York, Inc., respondent. Boeggeman, George & Corde, P.C., Albany (Cynthia Dolan of counsel), for City of Troy andanother, respondents.
Mugglin, J. Cross appeals from an order of the Supreme Court (Ceresia, Jr., J.), enteredJanuary 25, 2007 in Rensselaer County, which, among other things, denied a motion bydefendants Ashley K. O'Brien and Rose M. O'Brien for summary judgment dismissing thecomplaint against them.[*2]
At 9:15 p.m. on September 5, 2003, Louis St. Andrew IV(hereinafter the infant), then 15 years old, was attending a festival held by defendant ItalianCommunity Center of Troy, New York, Inc. (hereinafter ICC) in its parking lot adjacent to FifthAvenue in the City of Troy, Rensselaer County. Defendant City of Troy Police Departmentassigned two officers to be present during the festival. The infant, while being chased by a friend,dashed between two cars parked at the curb on Fifth Avenue and was struck by a vehicle ownedby defendant Rose M. O'Brien and operated by her 17-year-old granddaughter, defendant AshleyK. O'Brien, in violation of Vehicle and Traffic Law § 501 (3) (b), as she was the holder ofa junior license (class DJ) and she was accompanied only by another teenager while driving after9:00 p.m.
Plaintiffs, the infant's parents, commenced this action against the City of Troy, the TroyPolice Department, the two police officers present at the festival (hereinafter collectively referredto as the municipal defendants), the O'Briens and ICC. Following joinder of issue and extensivediscovery, all defendants moved for summary judgment dismissing the complaint. SupremeCourt granted summary judgment to ICC and the municipal defendants, but denied summaryjudgment to the O'Briens because an issue of fact exists as to whether the vehicle was beingoperated at a speed reasonable and prudent under the circumstances which then existed. SupremeCourt also held that the Vehicle and Traffic Law violation does not constitute evidence ofnegligence. Plaintiffs appeal the grant of summary judgment in favor of ICC and the municipaldefendants, as well as Supreme Court's finding that the driver's violation of the Vehicle andTraffic Law does not constitute evidence of negligence. The O'Briens cross-appeal from thedenial of their motion for summary judgment dismissing the complaint against them.
With respect to ICC, Supreme Court granted summary judgment because ICC did not owe alegal duty to protect persons attending the festival from the risks associated with vehicular trafficon Fifth Avenue. Whether the facts and circumstances of a particular case give rise to a legalduty is a question of law to be determined by the court (see Piccirillo v Beltrone-Turner,284 AD2d 854, 855 [2001]). While "[l]iability for a dangerous or defective condition on propertyis generally predicated upon ownership, occupancy, control or special use of the property" (Noble v Pound, 5 AD3d 936, 938[2004] [internal quotation marks and citation omitted]), a property owner does owe a duty towarn or protect others from a dangerous condition on a neighboring premises where the ownercreated or contributed to such condition (see Clementoni v Consolidated Rail Corp., 8 NY3d 963, 965[2007]). Here, it is undisputed that the infant's accident occurred wholly outside ICC premises ona municipal street owned and controlled by the City of Troy. As ICC neither created theconditions which existed in the street nor used the street for any special purpose, it had no legalduty to protect persons from risks associated with the public highway (see Stankowski vKim, 286 AD2d 282, 283 [2001], appeal dismissed 97 NY2d 677 [2001]). Moreover,although the risk associated with a public street is open and obvious and injury to patrons of thefestival is foreseeable, foreseeability of harm does not define duty (see 532 Madison Ave.Gourmet Foods v Finlandia Ctr., 96 NY2d 280, 289 [2001]; Boehm v Barnaba, 7 AD3d 911,913 [2004]). Accordingly, we affirm Supreme Court's determination that ICC owed no legal dutyto plaintiffs.
Plaintiffs next contend that Supreme Court erroneously found no issues of fact as to whetherthe municipal defendants were acting in their governmental capacity, as contrasted with aproprietary function, inasmuch as they received compensation from ICC for their services andacted as event security to not only provide public safety, but also to protect the interests of ICC. Itis firmly established that "municipalities generally enjoy immunity from liability for discretionaryactivities they undertake through their agents, except when plaintiffs establish a[*3]'special relationship' with the municipality" (Kovit v Estate of Hallums, 4 NY3d499, 505 [2005]; see Pelaez vSeide, 2 NY3d 186, 193 [2004]; Cuffy v City of New York, 69 NY2d 255, 260[1987]; Miller v State of New York, 62 NY2d 506, 510 [1984]; D'Ambra v DiDonna, 305 AD2d 958, 959 [2003]; Lemery v Village of Cambridge, 290 AD2d 765,765-766 [2002]). However, "a 'governmental entity's conduct may fall along a continuum ofresponsibility to individuals and society deriving from its governmental and proprietaryfunctions' " (Sebastian v State of New York, 93 NY2d 790, 793 [1999], quotingMiller v State of New York, 62 NY2d at 511-512; see Clinger v New York City Tr.Auth., 85 NY2d 957, 959 [1995]; Weiner v Metropolitan Transp. Auth., 55 NY2d175, 182 [1982]). Viewing both extremes of this spectrum, "[a] purely governmental function is'undertaken for the protection and safety of the public pursuant to the general police powers',while a purely proprietary function is a governmental activity which substitutes for orsupplements a traditionally private enterprise" (Johnson City Cent. School Dist. v Fidelity &Deposit Co. of Md., 272 AD2d 818, 820 [2000], quoting Balsam v Delma Eng'gCorp., 90 NY2d 966, 968 [1997] [citation omitted]; see Sebastian v State of NewYork, 93 NY2d at 793). In order to determine where along the continuum of responsibility amunicipality's challenged conduct falls, this Court must examine " 'the specific act or omissionout of which the injury is claimed to have arisen and the capacity in which that act or failure toact occurred' " (Miller v State of New York, 62 NY2d at 513, quoting Weiner vMetropolitan Transp. Auth., 55 NY2d at 182; accord Sebastian v State of New York,93 NY2d at 794; see Lemery v Village of Cambridge, 290 AD2d at 766; Johnson CityCent. School Dist. v Fidelity & Deposit Co. of Md., 272 AD2d at 820).
The special events policy of the City of Troy requires, among other things, that the policedepartment provide appropriate police coverage for special events sanctioned by the City toensure public safety and to provide law enforcement assistance to the staff of the special event.The policy specifically provides that it is not the responsibility of the police to provide eventsecurity, but to ensure public safety. The record establishes that the duties of the two policeofficers assigned to ICC were law enforcement only and it contains no evidence that ICC in anyway defined the duties of the two police officers or that they were requested to address issuesrelated to vehicular and pedestrian traffic on Fifth Avenue. This evidence establishes that themunicipal defendants were providing discretionary services in accordance with the special eventspolicy and, thus, were acting in a governmental capacity to which immunity attaches. The factthat ICC was obligated to pay the overtime expenses of the police officers does not transform thegovernmental purpose to a proprietary purpose for which liability may attach. The record clearlyestablishes that the services provided by the police officers were for the protection and safety ofthe public in keeping with general police powers (see Miller v State of New York, 277AD2d 770, 771 [2000]). Accordingly, we conclude that Supreme Court correctly determined thatthe municipal defendants were acting in a governmental capacity at the time of the infant's injuryand, accordingly, were immune from any suit by plaintiffs.
The issues presented with respect to the O'Briens are more problematic. These defendantsrely on numerous cases which hold that a prima facie entitlement to summary judgment isestablished by providing evidence that a plaintiff suddenly "darted out . . . directlyinto the path of the defendant's vehicle, leaving the defendant unable to avoid contact"(Sheppeard v Murci, 306 AD2d 268, 269 [2003]; see e.g. Ledbetter v Johnson, 27 AD3d 698, 698 [2006]; Mancia v Metropolitan Tr. Auth. Long Is.Bus, 14 AD3d 665, 665 [2005]; Loder v Greco, 5 AD3d 978, 979 [2004]; Sae Hyun Kim vMirisis, 286 AD2d 761, 761-762 [2001]; Johnson v Lovett, 285 AD2d 627, 627[2001]; Wolf v We Transp., 274 AD2d 514, 514 [2000]; Carrasco v Monteforte,266 AD2d 330, 331 [1999]; Miller v Sisters of Order of St. Dominic, 262 AD2d 373, 374[1999], lv denied 94 NY2d 763 [2000]). Therefore, a plaintiff must present [*4]sufficient evidence raising a triable issue of fact as to whether thedriver operated his or her vehicle in a negligent manner under the circumstances in order todefeat the motion (see Sheppeard v Murci, 306 AD2d at 269; Sae Hyun Kim vMirisis, 286 AD2d at 762; Miller v Sisters of Order of St. Dominic, 262 AD2d at374; Kiernan v Hendrick, 116 AD2d 779, 781 [1986], appeal dismissed 68 NY2d661 [1986]).
In contrast to the cases relied on by the O'Briens, here, the operator of the vehicle hadknowledge that she was approaching an area congested with people, including children, on astreet that was narrowed by parked cars. As such, whether the driver's speed was reasonableunder the particular circumstances in which she knowingly proceeded (see Vehicle andTraffic Law § 1180 [a]) is a question for the trier of fact to resolve. Indeed, " '[i]n all butthe most extraordinary instances, whether a defendant has conformed to the standard of conductrequired by law is a question of fact' necessitating a trial" (Nandy v Albany Med. Ctr.Hosp., 155 AD2d 833, 833 [1989], quoting Kiernan v Hendrick, 116 AD2d at 781;see Ferrer v Harris, 55 NY2d 285, 291-292 [1982]; Andre v Pomeroy, 35 NY2d361, 364 [1974]). We, therefore, affirm Supreme Court's denial of summary judgment to theO'Briens.
As a final matter, we also affirm Supreme Court's decision that Ashley O'Brien's operation ofthe vehicle in violation of the time restriction on her class DJ license is not evidence ofnegligence. In our view, Vehicle and Traffic Law § 501 (3), insofar as it relates to thehours within which a junior operator may drive without a parent being present, relates solely tothe authority to drive and does not create any standard of care which must be observed inthe operation of the vehicle. Therefore, violation of this restriction does not constitute negligenceand is akin to those cases in which unlicensed operation has been held not to constitute proof ofnegligence or where the violation of the restriction dealt with the actual ability of the operator todrive the car (see Miszko v Luma, 284 AD2d 641, 641 [2001]; Almonte v MarshaOperating Corp., 265 AD2d 357, 357 [1999]; Dalal v City of New York, 262 AD2d596, 597-598 [1999]; Dance v Town of Southampton, 95 AD2d 442, 447 [1983];Hanley v Albano, 20 AD2d 644, 645 [1964]). In so holding, we have not overlooked ourrecent decision in People v Cabrera(40 AD3d 1139 [2007], lv granted 9 NY3d 853 [2007]), in which we held thatviolations of the restrictions on class DJ licenses prohibiting the number of people under 21 whocan be in the car—and to a lesser extent, the failure to insure that each is wearing a seatbelt—relates directly to the physical operation of the vehicle. In contrast to this case, thoserestrictions—found in Vehicle and Traffic Law § 501-b—do define a standardof care, which, in the context of a criminal case, may be relevant to the issue of blameworthiness.
Cardona, P.J., Carpinello, Rose and Lahtinen, JJ., concur. Ordered that the order is affirmed,without costs.