Balsam v. Delma Engineering Corp.

Decision Date21 October 1997
Citation688 N.E.2d 487,665 N.Y.S.2d 613,90 N.Y.2d 966
Parties, 688 N.E.2d 487, 1997 N.Y. Slip Op. 8598 Rachel BALSAM et al., Appellants, v. DELMA ENGINEERING CORP., et al., Defendants, and City of New York, Respondent.
CourtNew York Court of Appeals Court of Appeals
OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

While plaintiff Rachel Balsam was standing behind her car to survey damage caused by a van that skidded on ice and collided with the rear of her vehicle, a third car rammed the van after hitting the same ice patch, causing the van to pin plaintiff between the van and her car. Plaintiff, and her husband derivatively, sued defendant New York City for her personal injuries, contending that the City was negligent in failing to protect her from the hazardous condition on the roadway. The Appellate Division reversed a judgment entered on a jury verdict in plaintiff's favor, concluding that the challenged actions of the City's Police Department in responding to the ice hazard involved a governmental function upon which tort liability could not be based.

Plaintiff acknowledges the time-honored rule that a municipality bears no liability for the negligent performance by its agents of governmental functions, absent the existence of a special relationship between the injured party and the municipality (Kircher v. City of Jamestown, 74 N.Y.2d 251, 544 N.Y.S.2d 995, 543 N.E.2d 443; Cuffy v. City of New York, 69 N.Y.2d 255, 260, 513 N.Y.S.2d 372, 505 N.E.2d 937). No "special duty" is urged by plaintiff here. Instead, plaintiff contends that the City may be held liable for her injuries because "the danger arose from the condition of the street surface, [and thus] this case involves a simple breach of a proprietary duty by New York City police officers."

Plaintiff's argument places before us the dichotomy between actions undertaken by municipal agents in a governmental capacity for which tort immunity is conferred and proprietary functions that subject the municipality to ordinary tort liability (see, Miller v. State of New York, 62 N.Y.2d 506, 511-512, 478 N.Y.S.2d 829, 467 N.E.2d 493). The characterization of a municipal act as "proprietary" or "governmental" does not depend simply on "whether the agency involved is * * * in control of the location in which the injury occurred" (Weiner v. Metropolitan Transp. Auth., 55 N.Y.2d 175, 182, 448 N.Y.S.2d 141, 433 N.E.2d 124). To determine where in the continuum of activity between proprietary and governmental responsibilities the challenged public action falls, we must examine "the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred" (Miller, 62 N.Y.2d, at 513, 478 N.Y.S.2d 829, 467 N.E.2d 493, supra ).

No claim is made here that the police were charged with the responsibility to physically maintain the property where plaintiff's accident...

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36 cases
  • Heeran v. Long Island Power Auth.
    • United States
    • New York Supreme Court — Appellate Division
    • 13 Julio 2016
    ...269 ). Such functions are unquestionably “undertaken for the protection and safety of the public” (Balsam v. Delma Eng'g Corp., 90 N.Y.2d 966, 968, 665 N.Y.S.2d 613, 688 N.E.2d 487 ; see Applewhite v. Accuhealth, Inc., 21 N.Y.3d at 430, 972 N.Y.S.2d 169, 995 N.E.2d 131 ), and implicate disc......
  • Fernandez v. State
    • United States
    • New York Court of Claims
    • 30 Septiembre 2011
    ...arising out of the performance of their governmental functions or from actions undertaken in a governmental capacity (Balsam v. Delma Eng'g Corp., 90 N.Y.2d 966, 967 [1997];Miller v. State of New York, 62 N.Y.2d 506, 513 [1984];Doe v. City of New York, 67 A.D.3d 854 [2009] ). Classic govern......
  • Church Ave. Merchants Block Ass'n, Inc. v. State
    • United States
    • New York Court of Claims
    • 10 Junio 2011
    ...arising out of the performance of their governmental functions or from actions undertaken in a governmental capacity (Balsam v. Delma Eng'g Corp., 90 N.Y.2d 966, 967 [1997];Miller v. State of New York, 62 N.Y.2d 506, 513 [1984];Doe v. City of New York, 67 AD3d 854 [2009] ). Where, however, ......
  • Denis v. Town of Haverstraw
    • United States
    • U.S. District Court — Southern District of New York
    • 30 Marzo 2012
    ...classic example of a governmental function undertaken for the protection and safety of the public.” Balsam v. Delma Eng'g Corp., 90 N.Y.2d 966, 665 N.Y.S.2d 613, 688 N.E.2d 487, 489 (1997). Therefore, as a threshold matter, the Court must determine whether Officer McManus was acting in a di......
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1 books & journal articles
  • Recent New York appellate decisions will impact municipal tort litigation.
    • United States
    • Fordham Urban Law Journal Vol. 30 No. 3, March 2003
    • 1 Marzo 2003
    ...City of Jamestown, 543 N.E.2d 443, 445-46 (N.Y. 1999). (237.) Id.; Greishaber, 720 N.Y.S.2d at 215. (238.) Balsam v. Delma Eng'g Corp., 688 N.E.2d 487, 488-89 (N.E. 1997); Tarter v. State, 503 N.E.2d 84, 86-87 (N.Y. 1986); Weiner v. Metro. Transp. Auth., 433 N.E.2d 124, 127 (N.Y. (239.) Bal......

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