Bass v. City of New York

• Decision Date: 03 April 1972
• Citation: 330 N.Y.S.2d 569,38 A.D.2d 407
• Parties: Carl BASS, etc., Respondent, v. The CITY OF NEW YORK, Defendant, and The New York City Housing Authority, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 569

330 N.Y.S.2d 569

38 A.D.2d 407

Carl BASS, etc., Respondent, v. The CITY OF NEW YORK, Defendant, and The New York City

Housing Authority, Appellant.

Supreme Court, Appellate Division, Second Department.

April 3, 1972.

Francis P. Cunnion (John Nielsen, New York City, of counsel), for appellant.

Goldfarb & Greenberg, New York City (Martin S. Rothman, New York City, of counsel), for respondent.

Before RABIN, P.J., and HOPKINS, MARTUSCELLO, LATHAM and GULOTTA, JJ.

RABIN, Presiding Justice.

On this appeal in an action by an administrator to recover damages for the wrongful death of his intestate (his daughter) and for her conscious pain and suffering, the issue to be determined is whether the appellant, the New York City Housing Authority, is liable in negligence for the injuries and tragic death of the intestate resulting from a rape and homicide. This issue was determined adversely to the appellant after a nonjury trial.

The decedent, Lourdes R. Bass, an infant nine years of age, resided with her parents in a 14-story building which was one of 10 buildings comprising a housing project owned, operated, maintained, supervised and controlled by the appellant on a 16-acre site known as the Farragut Housing Project, a low rent public housing project operated pursuant to the Public Housing Law. On December 4, 1962, at approximately 12:30 P.M., the decedent, having finished her lunch, was returning to her school, which was located six blocks from the housing project. Using a rear entrance hallway to reach the street, she was seized by a 15-year old boy who resided in another building in the project. The decedent was taken to the roof of the building where she was stripped of her clothing and raped. The assailant then held her over the edge of the roof and suspended her 14 stories above the street, until she promised not to disclose the incident. When she was put back on the roof, she broke away, with her assailant in pursuit. After a scuffle, he again seized her and again held her over the edge of the roof. He shook her repeatedly and finally dropped her at approximately 12:55 P.M. She fell 14 stories to the pavement of the courtyard and died of the resultant injuries.

It was stipulated at the trial that the appellant 'pursuant to the Public Housing Law pertaining to the Housing Authority undertook to provide and maintain a Housing Police Department and a uniformed Housing police force.' It was further stipulated that on December 4, 1962, one housing officer was assigned to this 10-building project; at the time of the rape and homicide the officer was at lunch; prior thereto he had patrolled the rear entrances and lobbies and inspected four buildings throughout, including the roofs; he was aware that there were elementary and junior high schools nearby and knew that children came home for lunch between 12:00 noon and 1:00 P.m.; on the roofs of three of the buildings, other than the one in which the decedent lived, there were telephone call boxes which, when in use, activated flashing lights for the purpose of attracting the attention of a police officer; and the housing officer in question first became aware of the crime following a call from headquarters. It was also stipulated that prior to December 4, 1962, this project had a history of incidents of unlawful and criminal acts ranging, Inter alia, from malicious mischief to robbery, narcotics, assault, rape and homicide, involving both adults and children, all of which were reflected in official records of complaint for the years 1960 to 1962, and that one-half hour before the instant rape and homicide, a seven-year-old girl residing in the same building was accosted in one of the elevators and taken to the basement where an attempt to remove her clothing was frustrated by her escape.

The testimony of three officers, called as witnesses for the plaintiff, is pertinent. One of them, a New York City policeman in charge of patrol assignments at the precinct located in the area in which the project is situated, testified that, although no city police officers were assigned to patrol the inside of the project and under normal circumstances the city police did not go inside the project unless requested or unless a crime was being committed, this policy was not limited to buildings owned by the appellant but was one which was followed with respect to all buildings in the area. A second witness, a patrolman employed by the appellant, testified as to his understanding that the appellant, at no time, excluded the New York City Police Department from patrolling the area. The third witness, an official of the Housing Patrolmen's Benevolent Association, testified that he had seen members of the city police force walking on the 'outside of the perimeter' of the housing project.

Upon the foregoing, the trial court, 61 Misc.2d 465, 305 N.Y.S.2d 801, awarded judgment to the plaintiff in the sum of $100,000 on the cause of action for pain and suffering and in the sum of $35,000 on the cause of action for wrongful death. Briefly stated, the court determined that the appellant was a landlord charged with the same responsibilities as any other landlord in this city and, having undertaken to organize and maintain a housing police force, owned a duty or obligation to each of the residents of the housing project to use reasonable care in providing police protection. In the words of the court: 'The Housing Authority knew that crime was rampant within the confines of its project. It had assumed the burden of protection by establishing a police force. It did not fulfill its obligation by assignment of one man to provide such protection.' Additionally, the court concluded that the operation of these housing projects was in the nature of a private enterprise with an indicated special responsibility, stating: 'I firmly believe that a landlord of a privately sponsored and maintained housing complex such as this, with a similar history of crime and disorder, should bear a special responsibility to protect its residents from these lawless elements.'

The threshold question is whether the appellant owed a duty specifically to the decedent as a resident of the project to afford her adequate police protection so as to safeguard her against the criminal act which caused her death. If there was no such legal duty, the dependent issues of proximate causation and the intervening act of a third party are rendered academic.

The New York City Housing Authority is a public corporation organized under the Municipal Housing Authorities Law (L.1934, ch. 4, comprising §§ 60 to 78, inclusive, of the former State Housing Law (L.1926, ch. 823, as re-enacted by L.1927, ch. 35), now the Public Housing Law (L.1939, ch. 808)) and engaged, pursuant to article XVIII of our State Constitution and the Public Housing Law, in the construction and operation of public low rent housing projects (Matter of Corwin v. Farrell, 303 N.Y. 61, 63, 100 N.E.2d 135, 136; Matter of New York City Housing Auth. v. Muller, 270 N.Y. 333, 1 N.E.2d 153). It is a 'corporate governmental agency' (Public Housing Law, § 3, subd. 2) and is deemed to be an agency of the municipality in which it is established (1943 Atty.Gen. 232; New York City Administrative Code, § E46--3.0). While it enjoys an existence as a public authority separate and apart from the State and the municipality, it exercises a governmental function (cf. Matter of Plumbing, Heating, Piping & Air Conditioning Contrs. Assn. v. New York State Thruway Auth., 5 N.Y.2d 420, 424, 185 N.Y.S.2d 534, 536, 158 N.E.2d 238, 240; Ciulla v. State of N.Y., 191 Misc. 528, 77 N.Y.S.2d 545) and is 'to some extent responsive to municipal policy' (Kelly v. Cohoes Housing Auth., 27 A.D.2d 463, 465, 280 N.Y.S.2d 250, 252).

The modern city functions in the public interest as proprietor and operator of a number of activities formerly and in some instances still carried on by private enterprise (Matter of New York City Housing Auth. v. Muller, Supra, 270 N.Y. p. 342, 1 N.E.2d p. 155). Many of these activities may be carried on directly by the State or the municipality, even though they create and use a corporation for that purpose, or may be delegated to an independent agency such as the appellant Authority (Public Housing Law, § 1 et seq.; cf. Pantess v. Saratoga Springs Auth., 255 App.Div. 426, 8 N.Y.S.2d 103). It may well be, in certain instances, that to the extent the appellant is carrying out activities which traditionally have been engaged in by private landlords it is performing a corporate function and acting in a proprietary capacity and the imposition of liability on established principles of tort law would logically follow (see Ann. 61 A.L.R.2d 1247). However, in determining the extent and scope of the appellant's duties as a landlord, we must 'distinguish those liabilities attendant upon governmental activities which have displaced or supplemented traditionally private enterprises' (Riss v. City of New York, 22 N.Y.2d 579, 581, 293 N.Y.S.2d 897, 240 N.E.2d 860) and are performed in a proprietary capacity from those which are and have always been considered governmental in nature. In this respect we note that there are no powers or duties which can be conferred and imposed upon a municipality that more clearly 'constitute a function of general government than the power and duty to maintain a police force' (Wilcox v. City of Rochester, 190 N.Y. 137, 142, 82 N.E. 1119, 1120).

The operation of a police department is universally regarded as a governmental activity and, in the absence of other circumstances sufficient to indicate negligence, the failure to provide general police protection, or adequate protection, will not impose liability upon a municipality, even though a statute or judicial ruling has abrogated the municipal immunity for the torts of policemen (18 McQuillin, Municipal Corporations (3d ed. rev.), §§ 53.79--53.80). Despite the waiver of sovereign...