Bonner v. City of New York
Citation | 536 N.E.2d 1147,73 N.Y.2d 930,539 N.Y.S.2d 728 |
Parties | , 536 N.E.2d 1147, 52 Ed. Law Rep. 1198 Charles BONNER, Respondent, v. CITY OF NEW YORK, Defendant, and Board of Education of the City of New York, Appellant. |
Decision Date | 16 February 1989 |
Court | New York Court of Appeals |
The order of the Appellate Division, 137 A.D.2d 967, 524 N.Y.S.2d 117, should be reversed, with costs, and the complaint dismissed.
On June 2, 1983, plaintiff, a New York City public school teacher, and five other school teachers were assigned to supervise the school playground at P.S. 153 in Manhattan during a play period. On the two sides that border City streets, the playground is enclosed by a high chain link fence and can be entered through iron gates--one gate on the north side of the playground, the other on the south. When plaintiff entered the playground, he saw several older children, not then students of the school, playing basketball there. Plaintiff locked the gate on the south side, and because the north gate was off its hinges and could not be locked, he stationed himself at that gate; as plaintiff testified, when a playground gate was unlocked during the play period his job was to be posted at the gate for the security of the school children in the yard. The teacher in charge of the playground later asked plaintiff to break up a fight between two boys, which he did. Discovering that one of the two boys was not a student at the school, plaintiff forcibly escorted him out through the schoolyard's north gate. After the boy's older cousin came into the yard and pushed plaintiff, the boy returned to the playground with a baseball bat, swung it at plaintiff and injured his wrist.
In this personal injury action plaintiff complained that defendants were negligent in allowing the gate to remain broken, failing to provide adequate levels of security in the schoolyard or provide proper training to teachers and persons charged with supervision during play periods, failing to assist plaintiff during the altercation, allowing intruders to enter the playground, failing to provide sufficient personnel at the broken gate to prevent their entry, and allowing the play period in the schoolyard despite the broken gate. The jury returned a verdict of $200,000 in favor of plaintiff and against defendant Board of Education, finding plaintiff 50% responsible for his own injuries. The Appellate Division affirmed plaintiff's judgment, without opinion.
Contrary to plaintiff's assertions, the particular negligence alleged is not the failure to fulfill a proprietary function, for which a municipal defendant may be held liable (see, Miller v. State of New York, 62 N.Y.2d 506, 478 N.Y.S.2d 829, 467 N.E.2d 493). Plaintiff's claim is premised on the contention that defendant's security system--of which he concededly became a part when he stationed himself at the north gate--was inadequate to protect him from criminal activity. It is settled, however, that the provision of security against physical attacks by third parties in circumstances as are presented here, is a governmental function involving policymaking regarding the nature of the risks presented, and that no liability arises from the performance of such a function absent a special duty of protection (see, Vitale v. City of New York, 60 N.Y.2d 861, 470 N.Y.S.2d 358, 458 N.E.2d 817; Glick v. City of New York, 42 N.Y.2d 831, 397 N.Y.S.2d 382, 366 N.E.2d 83, affg. on mem. at 53 A.D.2d 528, 384 N.Y.S.2d 184; see also, Marilyn S. v. City of New York, 73 N.Y.2d 910, 539 N.Y.S.2d 293, 536 N.E.2d 622 [decided today] ). In that a governmental function is at issue here, and plaintiff failed to establish that defendant had assumed a special duty to him, there was no legal basis for the judgment in his favor.
While we do not dispute the description of our prior holdings recited in the dissent, we do disagree as to their application to the facts of this case. As the dissent observes, providing security to public school teachers against criminal acts by third parties is a governmental function, and a school may not be liable for negligence in the absence of a special duty. Where we part company is with respect to the conclusion that the conduct at issue here may be likened to the school's failure to repair steps. Despite the trial court's erroneous submission of the matter to the jury on the theory that only a proprietary function was at issue, plaintiff's own testimony established that his station at the schoolyard's north gate was in accordance with prior instruction, for the security of the school children, when the gate could not be locked. The situation is not unlike Marilyn S. v. City of New York (supra), also decided today. While plaintiff there portrayed the alleged failure as "proprietary"--arguing that a system of locks already in place was not maintained in a reasonable fashion--we all agree that the school's failure to maintain the key control system in that case was an aspect of the school's over-all security system and thus a governmental function; the same may be said of the north gate in this case.
Finally, we note that the issues in this case are presented to us solely in terms of "governmental" and "proprietary" functions (see, Matter of County of Monroe, 72 N.Y.2d 338, 533 N.Y.S.2d 702, 530 N.E.2d 202), and thus reconsideration of the distinction in the present context is unwarranted.
I cannot agree with the majority's conclusion that plaintiff's verdict rests upon a finding that the school district breached a governmental duty. While plaintiff alleged that defendant breached both governmental and proprietary duties to him, the court submitted to the jury solely the question of whether defendant breached a proprietary duty in failing to properly maintain the lock on the playground gate. The majority's analysis of governmental functions and special duty is not pertinent. Since the school district's duty to maintain the playground gate was proprietary in nature under Miller v. State of New York, 62 N.Y.2d 506, 478 N.Y.S.2d 829, 467 N.E.2d 493, and plaintiff did not have to prove that the school district owed him a special duty to recover for its negligence (see, Cuffy v. City of New York, 69 N.Y.2d 255, 260-261, 513 N.Y.S.2d 372, 505 N.E.2d 937). Accordingly, I would affirm the order of the Appellate Division. I write at some length because I believe that the majority, in reversing that order, has clouded the rules governing cases of this type and has cast serious doubt on the continuing validity of Miller v. State of New York (supra).
Under settled principles, providing security to public school teachers against criminal acts by third parties is a governmental function; the plaintiff is required to plead and prove the existence of a special duty owed to him by school authorities before the school may be liable for negligence (Vitale v. City of New York, 60 N.Y.2d 861, 470 N.Y.S.2d 358, 458 N.E.2d 817; Glick v. City of New York, 42 N.Y.2d 831, 397 N.Y.S.2d 382, 366 N.E.2d 83, affg. 53 A.D.2d 528, 384 N.Y.S.2d 184). The rule is no more than the logical extension of the principle that a municipality may not be held liable for injuries resulting from the failure to provide police protection (Cuffy v. City of New York, supra, 69 N.Y.2d, at 260, 513 N.Y.S.2d 372, 505 N.E.2d 937; Sorichetti v. City of New York, 65 N.Y.2d 461, 468, 492 N.Y.S.2d 591, 482 N.E.2d 70; Riss v. City of New York, 22 N.Y.2d 579, 293 N.Y.S.2d 897, 240 N.E.2d 860). It rests on a judicial recognition that a municipality's provision of security to the public is a matter of allocating limited public resources and is better left to the discretion of the other two branches of government (see, Weiner v. Metropolitan Transp. Auth., 55 N.Y.2d 175, 181, 448 N.Y.S.2d 141, 433 N.E.2d 124; Riss v. City of New York, supra; Motyka v. City of Amsterdam, 15 N.Y.2d 134, 138, 256 N.Y.S.2d 595, 204 N.E.2d 635).
Conversely, when the government acts in a proprietary capacity, as a landowner or landlord, it is subject to the same principles of tort law as a private individual; liability for negligence may be found even absent the existence of a special duty (Miller v. State of New York, 62 N.Y.2d 506, 478 N.Y.S.2d 829, 467 N.E.2d 493, supra; Preston v. State of New York, 59 N.Y.2d 997, 466 N.Y.S.2d 952, 453 N.E.2d 1241; Court of Claims Act § 8). Although governments have always had that duty, formerly claims against them were barred by the doctrine of sovereign immunity and could not be enforced (see, Schuster v. City of New York, 5 N.Y.2d 75, 83, 180 N.Y.S.2d 265, 154 N.E.2d 534; Bernadine v. City of New York, 294 N.Y. 361, 62 N.E.2d 604). Since the State's waiver of sovereign immunity, however, the doctrine no longer forecloses liability for breach of a proprietary duty.
Concededly, it is difficult to draw the line between claims resting upon a breach of a proprietary duty and those resting upon a governmental duty. A governmental entity's conduct, as we said in Miller v. State of New York, 62 N.Y.2d 506, 511-512, 478 N.Y.S.2d 829, 467 N.E.2d 493, supra, (Emphasis added.) In fixing the place on the continuum where any...
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