Eisman v. Port Authority Trans Hudson Corp.

• Decision Date: 24 July 1978
• Citation: 96 Misc.2d 678,409 N.Y.S.2d 578
• Parties: Betty EISMAN, Plaintiff, v. PORT AUTHORITY TRANS HUDSON CORPORATION et al., Defendants.
• Court: New York Supreme Court

Page 578

409 N.Y.S.2d 578

96 Misc.2d 678

Betty EISMAN, Plaintiff, v. PORT AUTHORITY TRANS HUDSON CORPORATION et al., Defendants.

Supreme Court, Special Term, New York County, Part I.

July 24, 1978.

Platzer & Fallick, New York City (Kenneth J. Platzer, New York City, of counsel), for plaintiff.

Patrick J. Falvey, New York City (James P. DeFranco, Jr., New York City, of counsel), for defendants.

MEMORANDUM DECISION

BENTLEY KASSAL, Justice:

This is a motion by the defendants pursuant to CPLR 3211(a)(7) for an order dismissing the complaint on the ground that it fails to state a cause of action.

ISSUE

May a publicly operated commuter railroad with its own police force be held liable for failing to protect its passengers from criminal acts committed in its station?

FACTS

(1) The Incident

The complaint alleges that on August 31, 1976, the plaintiff was criminally assaulted and raped by an unknown person at The Port Authority Trans Hudson Station, located at 6th Avenue and Ninth Street in Manhattan, by reason of the defendants' negligence in failing to maintain a safe, secure and adequately protected station. Specifically, the complaint alleges that the defendants were negligent in failing to perform the following: (1) to provide enough police officers, (2) to maintain adequate lighting, and (3) to adequately maintain and monitor a remote control television surveillance system which had been installed to prevent criminal activity.

(2) The Defendants' Status

The defendant, Port Authority of New York (Port Authority), is a bi-state agency, created by interstate compact between the States of New York and New Jersey, and by legislation, it is declared to be "a body, both corporate and politic." See, McKinney's Unconsol. Law § 6404. One of its bi-state transportation operations is the interstate commuter railroad, Port Authority Trans Hudson Corporation (PATH). As a joint or common agency of the sovereign States of New York and New Jersey, it was clothed with sovereign immunity. However, in 1951, the Port Authority waived its sovereign immunity to various suits, including torts such as that alleged herein. McKinney's Unconsol. Laws § 7101.

The Port Authority maintains its own police force and in doing so, it utilizes surveillance monitoring equipment to provide security in its facilities. Plaintiff claims she relied on such security. Finally, plaintiff alleges that the Port Authority was negligent in failing to provide proper security and that this was the proximate cause of her injuries. The foundation of this motion is defendants' claim that no duty to plaintiff was breached because they had no duty to protect the plaintiff.

DECISION

The general rule with regard to actions in negligence for failure to provide adequate police protection is: "A municipality, acting in its governmental capacity for the protection of the general public, cannot be cast in damages for mere failure to furnish adequate police protection to a particular individual to whom no special duty is owed". Motyka v. City of Amsterdam, 15 N.Y.2d 134, 256 N.Y.S.2d 595, 204 N.E.2d 635 (1965); Bass v. City of N. Y., 38 A.D.2d 407, 330 N.Y.S.2d 569 (1972), affd. 32 N.Y.2d 894, 346 N.Y.S.2d 814, 300 N.E.2d 154 (1973). The Bass case, supra, was an action against the Housing Authority Police for failure to provide adequate police protection to residents of a city housing project, which was claimed to be the proximate cause of a rape and homicide. The court dismissed the complaint holding that the exercise of police powers by the Housing Authority was a "governmental function" which fell within the general rule of immunity (Motyka, supra ), finding that there was no special duty owed to a resident of the project.

(1) Special Relationship Test for Governmental Liability

The Port Authority Police Force performs a "governmental function" similar to that of the Housing Authority Police when exercising its police powers (see, Criminal Procedure Law § 1.20(34)(k); N.J.S.A. 32:2-25). As such, any liability for failure to provide adequate protection must be based upon proof of "a special relationship" between the defendant and the plaintiff, creating a duty to use due care. Florence v. Goldberg, 44 N.Y.2d 189, 404 N.Y.S.2d 583, 375 N.E.2d 763 (1978).

(A) By Specific Assurances

Generally, where a special relationship between plaintiff and a municipality has been recognized, that relationship has been founded upon specific assurances given by properly authorized public officials to an individual or class of individuals who then relied upon such assurances. See, Schuster v. City of N. Y., 5 N.Y.2d 75, 180 N.Y.S.2d 265, 154 N.E.2d 534; Florence v. Goldberg, supra; Bloom v. City of N. Y., 78 Misc.2d 1077, 357 N.Y.S.2d 979; Blatchly, Municipal Tort Liability for Failure to Provide Adequate Police Protection in New York, 39 Alb.L.Rev. 599 (1975). Since there is no claim of any specific assurances of adequate police protection to plaintiff by the Port Authority, a "special relationship" cannot be established on this basis.

(B) By Common Carrier

A "special relationship" between a governmental authority and a plaintiff may also arise when the authority, in performing proprietary functions, performs the role of a common carrier. In Amoruso v. New York City Transit Authority, 12 A.D.2d 11, 207 N.Y.S.2d 855 (1960), the plaintiff sued for injuries sustained as the result of an assault in a subway station. The Appellate Division reversed a dismissal of the complaint stating,

"There is no question but that the defendant (a municipal transit authority), as a railroad carrier, is under a duty to take reasonable precautions for the protection and safety of its passengers. The nature and extent of such duty is dependent upon the circumstances of each particular situation and the danger reasonably to be anticipated. That, and whether such duty has been fully discharged, is determined either as a Question of fact . . . or as a matter of law." (citations omitted) Id. at 12, 207 N.Y.S. at 856. (emphasis added)

The duty of a common carrier to provide adequate protection for its passengers is not that of an insurer, but may be analogized to the responsibility of a landlord for criminal acts committed on its premises. In defining a...