O'Connor v. State

• Decision Date: 23 December 1987
• Citation: 524 N.Y.S.2d 391,519 N.E.2d 302,70 N.Y.2d 914
• Parties: , 519 N.E.2d 302 Anna M. O'CONNOR, as Executrix of David W. O'Connor, Deceased, Respondent, v. STATE of New York, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 391

524 N.Y.S.2d 391

70 N.Y.2d 914, 519 N.E.2d 302

Anna M. O'CONNOR, as Executrix of David W. O'Connor, Deceased, Respondent, v. STATE of New York, Appellant.

Court of Appeals of New York.

Dec. 23, 1987.

Robert Abrams, Atty. Gen. (Michael S. Buskus, O. Peter Sherwood and Peter H. Schiff, Albany, of counsel), for appellant.

Michael J. Cunningham and John T. DeGraff, Jr., Albany, for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 126 A.D.2d 120, 512 N.Y.S.2d 536, should be affirmed, with costs.

Claimant's decedent was crossing a street on the State Office Building Campus in Albany in a marked pedestrian crosswalk when he was struck and killed by a bicyclist involved in a time trial. Claimant sued the cyclist and others involved in the time trial in Supreme Court, where damages were assessed at $980,000 and comparative negligence was found to be 60%. The claimant then commenced this action against the State in the Court of Claims, where the court found that the decedent and the State were each 50% at fault and assessed damages at $680,870. The Appellate Division affirmed the Court of Claims order, from which the State now appeals.

We agree with the Appellate Division that the State, like other landowners, owed a duty of care to the plaintiff to maintain its property, held open to the public, in a reasonably safe condition and that it breached that duty ( Benjamin v. City of New York, 64 N.Y.2d 44, 484 N.Y.S.2d 525, 473 N.E.2d 753; Kush v. City of Buffalo, 59 N.Y.2d 26, 462 N.Y.S.2d 831, 449 N.E.2d 725; Rhabb v. New York City Hous. Auth., 41 N.Y.2d 200, 391 N.Y.S.2d 540, 359 N.E.2d 1335; Scurti v. City of New York, 40 N.Y.2d 433, 387 N.Y.S.2d 55, 354 N.E.2d 794; Nicholson v. Board of Educ., 36 N.Y.2d 798, 369 N.Y.S.2d 703, 330 N.E.2d 651; Cohen v. City of New York, 204 N.Y. 424, 97 N.E. 866). As the lower court found, the bicycle time trials knowingly permitted several times weekly on the roadways within this vast office complex owned by the State constituted an unusual hazard or dangerous activity. Yet the State took no measures to protect pedestrians, even though the potential dangers were foreseeable (see, Cohen v. City of New York, supra, at 427, 97 N.E. 866).

The State's position that collateral estoppel is a bar to relitigating the issue of decedent's comparative negligence in the Court of Claims is similarly unpersuasive. Although the decedent's comparative negligence was at issue both in the Supreme Court and in the Court of Claims actions, there has been no showing by the State that the Supreme Court addressed relative culpability as between the decedent and the State, which was an issue squarely before the Court of Claims ( see, O'Connor v. G & R Packing Co., 53...