O'Connor v. City of New York

• Decision Date: 23 February 1983
• Citation: 447 N.E.2d 33,460 N.Y.S.2d 485,58 N.Y.2d 184
• Parties: , 447 N.E.2d 33 William O'CONNOR et al., Respondents, v. CITY OF NEW YORK, Appellant, Consolidated Edison Co. et al., Respondents, et al., Defendants.
• Court: New York Court of Appeals Court of Appeals

Page 485

460 N.Y.S.2d 485

58 N.Y.2d 184, 447 N.E.2d 33

William O'CONNOR et al., Respondents, v. CITY OF NEW YORK, Appellant Consolidated Edison Co. et al., Respondents, et al., Defendants.

Court of Appeals of New York.

Feb. 23, 1983.

Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City (Alfred Weinstein, Leonard Koerner and Bernard Abel, New York City, of counsel), for appellant.

Herman Schmertz, New York City, for William O'Connor and another, respondents.

OPINION OF THE COURT

COOKE, Chief Judge.

This appeal presents the question whether a municipality may be held liable for its inspector's failure to discover a leak in a gas system that ultimately caused an explosion. Inasmuch as there was no special relationship between the injured parties and the municipality, the municipality may not be held liable to plaintiffs for damages resulting from the explosion. The order of the Appellate Division, therefore, should be reversed and the complaint should be dismissed as against the City of New York.

On the afternoon of December 11, 1970, a gas explosion leveled a three-story building in lower Manhattan, killing 12 persons, injuring many others, and virtually obliterating the commercial establishments in the building. Forty-three actions were brought against the City of New York, Consolidated Edison Company of New York, Inc., the plumbers who had installed the new gas system, and various other defendants. The actions were consolidated, and at a jury trial on the issue of liability, the city was found 65% liable, Consolidated Edison was found 10% liable, and Otto Schlink and Albert Bold, the plumbers, were each found 12.5% liable. The Appellate Division reversed and ordered a new trial with respect to the liability of the city and a new apportionment of damages (Gannon Personnel Agency v. City of New York, 57 A.D.2d 538, 394 N.Y.S.2d 5).

At the second trial, a jury again found the city liable. It apportioned damages 80% against China Dynasty Enterprises, Inc., a defunct corporation that had opened a restaurant in the building, 11% against Schlink, 1% against Bold, and 4% each against Consolidated Edison and t city. Supreme Court denied the city's motion to set aside the verdict against it (103 Misc.2d 60, 425 N.Y.S.2d 446), and the Appellate Division 81 A.D.2d 755, 438 N.Y.S.2d 661, affirmed.

The basis for imposing liability on the city was the action, or lack thereof, of the city inspector who visited the building nine days before the explosion. Expanded gas service had been necessitated by the conversion of the top two stories of the building to a Chinese restaurant. A new pipe was laid from the gas main under the street to the building. Schlink and Bold were responsible for connecting the piping inside the building to the incoming gas pipe in the basement. In doing so, they failed to install a shut-off valve at the point where the gas line entered the building, although such a valve was required by city regulations. In addition, a gas pipe leading to another room in the basement was left uncapped so that, if the system was put into operation, gas would flow out the pipe into the basement. There also may have been another gap in the piping where the restaurant's new meter was to be installed. Consolidated Edison had given its permission for the installation of a temporary pipe to close the gap where the meter was to be placed.

Before renewed gas service to the building could be authorized, the new installation had to be inspected by both the city and Consolidated Edison. The city inspector twice visited the site while work was in progress. On December 2, 1970, the city's inspector viewed the installation for the third and final time. Despite the presence of the open-ended pipe and the lack of the shut-off valve, the inspector told the plumber, Schlink, that he had done a "good job", and that a "blue card" would be issued. The blue card, issued by the city building department, was required before Consolidated Edison could install the new meter for the restaurant and resume gas service. The card stated, "This is to certify that the Gas Pipes of premises known as 7-11 Ann Street in the Borough of Manhattan conform to the rules and regulations of this Department". As noted, however, the gas piping system did not conform to the relevant rules and regulations.

After obtaining the blue card, the proprietor of the China Dynasty Restaurant took the card to Consolidated Edison offices on Thursday, December 10, 1970. The utility scheduled a final check by its employees of the new gas piping system for the following Monday, with resumption of gas service if the system was approved. Unfortunately, Consolidated Edison never had the opportunity to conduct its final inspection. Anxious to have the restaurant open for business over the weekend, the proprietor apparently made independent arrangements for the gas to be turned on. On Friday afternoon, two men, one of whom resembled the proprietor, were observed opening a sidewalk curb valve outside the building. This incoming gas escaped through the uncapped pipe inside the building. The strong odor of gas was soon detected, and the devastating explosion followed a short time later.

It is beyond dispute that the city inspector should not have authorized issuance of the blue card. City regulations required that every part of a new or altered gas piping system be inspected (Administrative Code of City of New York, § C26-1606.1). Such an examination surely should have disclosed the open-ended pipe. In addition, such an inspection should have revealed that the required interior shut-off valve was absent (Administrative Code, RS-16, P115.2, subd. [a] ). Although the Consolidated Edison employees presumably would have observed these defects in their final inspection and demanded that they be remedied before gas service was resumed, the fact remains that the city inspector, during his December 2 inspection, either failed to observe the defects or failed to insist upon their correction.

Nonetheless, the City of New York may not be held liable to the plaintiffs here for the omissions of its inspector. It is well established that "[a]bsent a special relationship creating a municipal duty to exercise care for the benefit of a particular class of individuals, no liability may be imposed upon a municipality for failure to enforce a statute or regulation" (Sanchez v. Village of Liberty, 42 N.Y.2d 876, 877-878, 397 N.Y.S.2d 782, 366 N.E.2d 870, dsmd. on other grounds 44 N.Y.2d 817, 406 N.Y.S.2d 295, 377 N.E.2d 748). In Sanchez, the survivors of a fire in a multiple dwelling in the Village of Liberty brought wrongful death actions against a village and its building inspector, among others, in connection with the deaths of their spouses and children. The plaintiffs alleged that the village and its inspector knew that the building violated various regulations in that it was a firetrap without fire escapes or other adequate means of emergency egress. This court dismissed the complaint against the village and inspector because of the lack of any special relationship. The court stated that "the statutes and ordinances involved in the case at bar create no such special relationship" (id., 42 N.Y.2d at p. 878, 397 N.Y.S.2d 782, 366 N.E.2d 870).

Sanchez is consistent with well-established principles limiting municipal liability for breach of a general statutory duty. In Motyka v. City of Amsterdam, 15 N.Y.2d 134, 256 N.Y.S.2d 595, 204 N.E.2d 635, a city fire captain's knowledge that a defective heater had previously caused a fire and the city's failure to see that the heater was repaired or removed were asserted as a basis of liability after the faulty heater caused a second fire. This court held that the complaint was properly dismissed, stating that municipal "tort liability has been held to exist where there has been some relationship on the part of the defendant to the plaintiff creating a duty to use care for the benefit of particular persons or classes of persons * * * but we have never gone so far as to hold that a general liability exists to the public for civil damage in event of failure to supply adequate police or fire protection" (id., at p. 139, 256 N.Y.S.2d 595, 204 N.E.2d 635 [citation omitted]; see, also, Garrett v. Town of Greece, 55 N.Y.2d 774, 447 N.Y.S.2d 246, 431 N.E.2d 971; Messineo v. City of Amsterdam, 20 A.D.2d 626, 245 N.Y.S.2d 163 affd. 17 N.Y.2d 523, 267 N.Y.S.2d 905, 215 N.E.2d 163; Steitz v. City of Beacon, 295 N.Y. 51, 64 N.E.2d 704; Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 159 N.E. 896).

Just as the housing regulations in Sanchez were designed to protect the safety of residents of multiple dwellings, so were the gas piping regulations in this case designed, at least in part, to protect persons from death, injury or property damage. The regulations were intended to benefit the injured persons, but in the broad sense of protecting all members of the general public similarly situated. This, alone, is insufficient to form a basis for municipal liability. Here, as in Sanchez, there has been shown no special relationship as would establish a municipal duty to these particular plaintiffs.

The sharp contrast with Smullen v. City of New York, 28 N.Y.2d 66, 320 N.Y.S.2d 19, 268 N.E.2d 763 is noteworthy. There, a city sewer construction inspector assured a worker that an 11-foot-deep tren with unshored earthen walls was safe to work in. The walls, which by regulation should have been shored up, collapsed a few moments later, and killed the worker. It was held that the city could be held liable for its inspector's negligence. In doing so, the court relied on the presence of the inspector at the site and his power to prevent the worker from entering the unsafe trench, stating that the inspector's unsolicited opinion as to the trench's safety "could easily be interpreted as more than acquiescence in decedent's descent, and as an exercise of control by...