| Murchison v State of New York |
| 2012 NY Slip Op 05691 [97 AD3d 1014] |
| July 19, 2012 |
| Appellate Division, Third Department |
| David Murchison, Appellant, v State of New York,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Julie M. Sheridan of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the Court of Claims (Hard, J.), entered April 29,2011, upon a decision of the court in favor of defendant.
On May 16, 2006, claimant's long-time girlfriend, Amy Islas, received a telephone callinforming her that her father, "Hawk," was missing from her parents' home on State Route 374 inthe Town of Dannemora, Clinton County. Hawk had entered the woods earlier in the day tocheck on his minnow traps in a local stream and, after several hours passed without his safereturn, was feared lost. Islas proceeded to her parents' residence and, after stopping to pick up hisson at a local gym, claimant arrived there as well and parked his Chevrolet pickup truck in thedriveway.
Various employees of the State Police and Department of Environmental Conservation(hereinafter DEC), together with members of the Dannemora Volunteer Fire Department,responded to the scene and, with the assistance of a K-9 unit and a helicopter from theDepartment of Homeland Security, located Hawk. At approximately 12:45 a.m., Hawk emergedfrom the woods and was transported to a local hospital for evaluation.
Shortly thereafter, claimant, Islas and their son climbed into claimant'struck—intending to go to the hospital. According to claimant, his view of the highway wasblocked by both the [*2]cap on the back of his truck and vehiclesparked along the south shoulder of State Route 374, prompting him to approach a group ofuniformed individuals gathered on the front lawn of the residence and ask for assistance inbacking out of the driveway. As claimant pulled out onto the highway—purportedly withthe assistance of a DEC forest ranger—his truck was struck by an eastbound vehicleoperated by Hamilton Shutts, causing various injuries to claimant. Shutts, who allegedly had ablood alcohol content of .17%, was convicted of vehicular assault in the second degree andsentenced to six months in jail and a period of probation; after violating the terms thereof, Shuttswas sentenced to 1 to 3 years in prison.[FN1]
In August 2008, and after being granted permission to file a late claim, claimant commencedthis action against defendant alleging that its employees were negligent in guiding his vehicleonto the highway and into the path of oncoming traffic. A bifurcated trial ensued, during thecourse of which defendant took the position that none of its employees assisted claimant inbacking out of the driveway on the night in question. The Court of Claims credited claimant'sversion of the events, however, finding that a DEC forest ranger did in fact assist claimant withbacking out of the driveway and, further, was negligent in the manner in which he did so. TheCourt of Claims nonetheless dismissed the claim, concluding that—at the time of theaccident—the ranger was performing a governmental function within the exercise of hisdiscretion and, as such, defendant was immune from liability. This appeal by claimant ensued.
We affirm. "Although the State long ago waived sovereign immunity on behalf of itself andits municipal subdivisions, the common-law doctrine of governmental immunity continues toshield public entities from liability for discretionary actions taken during the performance ofgovernmental functions" (Valdez v Cityof New York, 18 NY3d 69, 75-76 [2011] [citations omitted]). Thus, "even if a plaintiffestablishes all elements of a negligence claim, a state or municipal defendant engaging in agovernmental function can avoid liability if it timely raises the defense and proves that thealleged negligent act or omission involved the exercise of discretionary authority" (id. at76; see McLean v City of NewYork, 12 NY3d 194, 202 [2009]; Lauer v City of New York, 95 NY2d 95, 99[2000]; Tango v Tulevech, 61 NY2d 34, 40 [1983]). In this regard, the mere existence ofdiscretionary authority will not suffice; rather, the municipal defendant must establish that suchdiscretionary authority indeed was exercised (see Mon v City of New York, 78 NY2d309, 313 [1991]; Haddock v City of New York, 75 NY2d 478, 484 [1990]; Metz v State of New York, 86 AD3d748, 751 [2011]).
As should be apparent from the foregoing, the availability of the governmental immunitydefense hinges upon the performance of a governmental function and the corresponding exerciseof discretionary authority. A governmental function generally is defined as one "undertaken forthe protection and safety of the public pursuant to the general police powers" (Balsam vDelma Eng'g Corp., 90 NY2d 966, 968 [1997]; accord Sebastian v State of [*3]New York, 93 NY2d 790, 793 [1999]), whereas a proprietaryfunction is one in which "governmental activities essentially substitute for or supplementtraditionally private enterprises" (Sebastian v State of New York, 93 NY2d at 793[internal quotation marks and citations omitted]). Here, crediting claimant's proof,[FN2]it is apparent that the unidentified ranger was—at the time of claimant'saccident—engaged in traffic control or regulation, which "is a classic example of agovernmental function undertaken for the protection and safety of the public pursuant to thegeneral police powers" (Balsam v Delma Eng'g Corp., 90 NY2d at 968; accord Santoro v City of New York, 17AD3d 563, 564 [2005]; Eckert vState of New York, 3 AD3d 470, 470 [2004]; see Lynch v State of New York, 37 AD3d 772, 773 [2007]), thusplacing the ranger's asserted negligence "well within the immunized 'governmental' realm ofmunicipal responsibility" (Balsam v Delma Eng'g Corp., 90 NY2d at 968).
As to whether the ranger was engaged in a discretionary or ministerial act at the time of thecollision, the case law makes clear that a "discretionary or quasi-judicial act[ ] involve[s] theexercise of reasoned judgment which could typically produce different acceptable results whereasa ministerial act envisions direct adherence to a governing rule or standard with a compulsoryresult" (Haddock v City of New York, 75 NY2d at 484 [internal quotation marks andcitation omitted]; accord Metz v State of New York, 86 AD3d at 750; Lewis v State of New York, 68 AD3d1513, 1514 [2009]; see Lauer v City of New York, 95 NY2d at 99). "Governmentaction, if discretionary, may not be a basis for liability, while ministerial actions may be, but onlyif they violate a special duty owed to the plaintiff, apart from any duty to the public in general"(McLean v City of New York, 12 NY3d at 203; accord Valdez v City of NewYork, 18 NY3d at 76-77). Simply put, traffic control is an inherently discretionary act (see Lewis v City of New York, 82AD3d 410, 411 [2011], lv denied 16 NY3d 713 [2011]; Devivo v Adeyemo, 70 AD3d 587[2010]; see also Balsam v Delma Eng'g Corp., 90 NY2d at 968), i.e., one that by its verynature necessarily involves the exercise of reasoned judgment.
There being no dispute that defendant pleaded the governmental immunity defense in itsanswer, all that remains for our consideration is whether the record as a whole contains sufficientproof to establish that the ranger did in fact exercise discretion/reasoned judgment when assistingclaimant in backing out of the driveway. Although claimant asserts that defendant failed toproffer any evidence to this effect, claimant's own testimony reveals that the ranger exerciseddiscretion in assisting him in backing out of the driveway. Specifically, claimant testified that[*4]when he first started to back out of the driveway, the rangerwas standing on the south shoulder of State Route 374. As claimant continued to back up, theranger moved to the middle of the road and, by claimant's own admission, looked both east andwest as he continued to motion claimant out of the driveway. Notably, claimant acknowledgedthat the ranger "was [being] cautious about what was coming from [the] direction ofDannemora." Such testimony, in our view, is more than sufficient to establish that the rangerwas—at the time of claimant's accident—engaged in a governmental functioninvolving the actual exercise of discretionary authority and, as such, the Court of Claimscorrectly concluded that defendant was immune from liability. Claimant's remaining contentionsare either lacking in merit or, in light of the foregoing conclusion, have been rendered academic.
Rose, J.P., Spain, Malone Jr. and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed, without costs.
Footnote 1: Shutts testified at hisexamination before trial that after consuming at least two beers, he and a friend shared a liter ofrum, after which he also drank two Long Island Iced Teas. Shutts and his friend then climbedinto Shutts's car and headed to the Stewart's shop in Dannemora to buy cigarettes. On the wayback to Shutts's residence, and while traveling eastbound on State Route 374, the collision withclaimant's vehicle occurred.
Footnote 2: As defendant aptly observes, theproof offered by claimant's witnesses was often contradictory and inconsistent and, generallyspeaking, stood in marked contrast to the unequivocal testimony offered by defendant'switnesses—including a disinterested member of the local fire department and Islas's ownbrother. Although this Court's review power in the context of a nonjury trial indeed is as broad asthe trial court's (see Martin v State ofNew York, 39 AD3d 905, 907 [2007], lv denied 9 NY3d 804 [2007]), we willaccept—for purposes of this discussion—claimant's version of the events and, forthe reasons that follow, find it unnecessary to consider defendant's alternate ground fordismissing the underlying claim—namely, that there is insufficient evidence to support afinding that a ranger assisted claimant in backing out of the driveway.