Crosland v. New York City Transit Authority

• Decision Date: 11 September 1986
• Citation: 506 N.Y.S.2d 670,498 N.E.2d 143,68 N.Y.2d 165
• Parties: , 498 N.E.2d 143 Thelma CROSLAND, Individually and as Administratrix of the Estate of Steven Crosland, Jr., Deceased, Respondent, v. NEW YORK CITY TRANSIT AUTHORITY, Appellant, et al., Defendants.
• Court: New York Court of Appeals Court of Appeals

Page 670

506 N.Y.S.2d 670

68 N.Y.2d 165, 498 N.E.2d 143

Thelma CROSLAND, Individually and as Administratrix of the Estate of Steven Crosland, Jr., Deceased, Respondent, v. NEW YORK CITY TRANSIT AUTHORITY, Appellant, et al., Defendants.

Court of Appeals of New York.

Sept. 11, 1986.

Lawrence Heisler, New York City, William E. Rosa, John A. Murray, Brooklyn, and C. Frances Rush, New York City, for appellant.

Daniel R. Seidel, White Plains, for respondent.

OPINION OF THE COURT

PER CURIAM.

The question presented is whether a public carrier whose employees allegedly stood by and did nothing while one of its passengers was beaten to death by hoodlums should be immune from all civil liability. We hold that it should not, and thus affirm the order appealed from and answer the question certified in the affirmative.

Amplified by affidavits and exhibits in the record, the complaint alleged in pertinent part that after attending a talent show at the High School of Music and Art, at which they were students, Steven Crosland, Jr., and several friends boarded the Independent subway at 135th Street. At 125th Street, they left the local train to change to an express on which to continue their trip downtown. At approximately 11:45 p.m., a group of hoodlums, armed with baseball bats, golf clubs, wooden clubs, tire irons, and chains, jumped the turnstiles at the 125th Street station and savagely attacked the students. Steven later died from wounds he sustained while being beaten over the head as he tried to escape from the platform by climbing a flight of stairs.

There were no police in the station. Steven's friends claimed there had almost always been officers in that station in the past. Allegedly, several track workers witnessed the incident and did nothing to summon aid. As the attack progressed, the complaint also stated, at least two trains, whose personnel were able to observe the attack, passed through the station, and these employees also did nothing.

Recovery was sought against the Transit Authority ¹ on three separate theories: that the defendant breached its special duty of care to the decedent because it failed to maintain "around-the-clock police presence" at the 125th Street station though it knew that station was the site of previous youth gang attacks on Music and Art students; that the defendant's employees breached a duty to Steven by failing to "take every precaution to prevent * * * injuries to persons", as required by the Authority's rule 85; and that defendant failed to meet the standard of care owed by common carriers to their passengers.

Before answering the complaint, the Authority moved "for an Order pursuant to CPLR 3212 granting summary judgment dismissing this action". The Authority took no issue with the factual allegations of the complaint, ² which it characterized as charging "defendants for failing to take adequate steps to police the site of the attack and thus prevent the assault on decedent". The Authority urged that this court's decision in Weiner v. Metropolitan Transp. Auth., 55 N.Y.2d 175, 448 N.Y.S.2d 141, 433 N.E.2d 124, therefore mandated dismissal. Special Term denied the motion. The Appellate Division affirmed, 110 A.D.2d 148, 493 N.Y.S.2d 474, and granted the Authority's motion for leave to appeal, certifying to us the question whether its order was properly made.

The Appellate Division correctly concluded that the defendant owed Steven no special duty, for lack of the element of "some direct contact between agents of the [defendant] and the injured party" (Sorichetti v. City of New York, 65 N.Y.2d 461, 469, 492 N.Y.S.2d 591, 482 N.E.2d 70), and that liability cannot be based upon the alleged breach of Transit Authority rule 85, which, as in the portion quoted above, imposed a duty higher than the Authority actually owes, i.e., to exercise "ordinary care commensurate with the existing circumstances" (Thomas v. Central Gre Lines, 6 A.D.2d 649, 652, 180 N.Y.S.2d 461). Indeed, as the Appellate Division noted (110 A.D.2d, at p. 156, 493 N.Y.S.2d 474), the rule would be inadmissible at trial for the same reason (see, Abady v. Pennsylvania R.R. Co., 6 A.D.2d 803, 175 N.Y.S.2d 311, affd. 6 N.Y.2d 757, 186 N.Y.S.2d 657, 159 N.E.2d 203, rearg. denied 6 N.Y.2d 882, 188 N.Y.S.2d 1027, 160 N.E.2d 96).

This court has held that the allocation of police resources implicates a governmental function for which a publicly owned carrier cannot be held liable, even though a private carrier could be held liable for a similar failure to allocate security personnel if that failure proximately resulted in a patron's sustaining injury at the hand of a third party (Weiner v. Metropolitan Transp. Auth., 55 N.Y.2d 175, 188 N.Y.S.2d 1027, 160 N.E.2d 96, supra ). In the two cases decided under the Weiner caption, it must be stressed, the plaintiffs were attacked at stations where no police were present, and they argued, without success, that police should have been put there because of prior incidents at the stations. To the extent the complaint in the present action alleges a failure to properly allocate police resources, therefore, it too must fail.

Weiner did not, however, absolve publicly owned common carriers from liability for assaults on their passengers by third parties in all cases. Rather, the court noted, "[i]t is 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 which governs liability, not whether the agency involved is engaged generally in proprietary activity" (Weiner v. Metropolitan Transp. Auth., 55 N.Y.2d 175, 182, 448 N.Y.S.2d 141, 433 N.E.2d 124, supra ). ³ Indeed, we have recognized categories of activity rendering a municipality liable (Miller v. State of New York, 62 N.Y.2d 506, 478 N.Y.S.2d 829; Riss v. City of New York, 22 N.Y.2d 579, 293 N.Y.S.2d 897, 240 N.E.2d 860).

The Authority, though conceding that...