Florence v. Goldberg

• Decision Date: 04 April 1978
• Citation: 44 N.Y.2d 189,375 N.E.2d 763,404 N.Y.S.2d 583
• Parties: , 375 N.E.2d 763 Carol FLORENCE, as Mother and Natural Guardian of Darryle L. Davis, an Infant, et al., Respondents, v. Meyer GOLDBERG, Defendant, and Lilly Transportation Corp., et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 583

404 N.Y.S.2d 583

44 N.Y.2d 189, 375 N.E.2d 763

Carol FLORENCE, as Mother and Natural Guardian of Darryle L.

Davis, an Infant, et al., Respondents, v. Meyer GOLDBERG, Defendant, and Lilly Transportation Corp., et al., Appellants.

Court of Appeals of New York.

April 4, 1978.

W. Bernard Richland, Corp. Counsel, New York City (Bernard Burstein and L. Kevin Sheridan, New York City, of counsel), for City of New York, appellant

Seymour Madow, Aaron J. Broder and Ann Abbott, New York City, for respondents.

OPINION OF THE COURT

JASEN, Judge.

This appeal raises the issue whether a municipality may be held liable for injuries suffered by an infant struck by an automobile while attempting to negotiate a school crossing where the municipality's police department, having voluntarily assumed a duty to supervise school crossings an assumption upon which the infant's parent relied negligently omitted to station a guard at one of the designated crossings.

On November 14, 1967, Darryle Davis, a 6 1/2-year-old infant, was struck by a taxicab, the impact of which resulted in the infliction of severe brain damage to the infant. At the time of the injury, the infant plaintiff was a first-grade student at Public School 191, located on Park Place between Ralph and Buffalo Avenues in Brooklyn. Although he resided on Park Place, only one block away from the school, the infant plaintiff was required to cross Ralph Avenue to attend school.

Prior to the occurrence of the accident resulting in the infant's injury, a civilian school crossing guard had been assigned regularly to cover the intersection of Park Place and Ralph Avenue, a busy two-way street. For the first two weeks of class, a period throughout which the infant's mother accompanied her son to and from school, a crossing guard had been stationed at the intersection of Park Place and Ralph Avenue. Having witnessed the daily presence of a crossing guard at this intersection, the infant's mother, who accepted employment two weeks after her son started class, felt confident that she need not arrange for someone to provide a similar service for her child.

Tragically, however, on the day in question no crossing guard was stationed at the intersection of Park Place and Ralph Avenue. The regularly assigned crossing guard, having felt ill that day, notified the 77th precinct at 7:30 a. m. that she would not be able to report for duty. Police department regulations provided that a crossing guard unable to report for duty "notify the (police precinct) desk officer sufficiently in advance so that other arrangements (could) be made for covering the crossing." (Rules and Regulations of New York City Police Dept., ch. 23, § 12.1.) Patrolmen and superior officers were also required to notify the desk officer of the absence of a crossing guard at a covered intersection. Upon receipt of this information, the desk officer was required to "assign a patrolman to cover the crossing." (Id., ch. 23, § 12.3.) Departmental regulations provided, however, that if all school crossings could not be covered, those intersections considered most dangerous were to be covered. (Id., ch. 15, § 34.1.) Significantly, where more urgent police duty mandated a patrolman's presence elsewhere, department regulations required him to notify the school principal so that the latter could make arrangements to provide for the safety of the children. (Id., ch. 15, § 35.0.)

Upon receiving notification of the crossing guard's unavailability for duty, the police department neither assigned a patrolman to substitute for the crossing guard nor notified the school principal of the absence of a crossing guard at the Park Place and Ralph Avenue intersection. It was shortly after 11:45 a. m., while the infant plaintiff was returning home from school, that he was struck by a taxicab while attempting to cross this intersection.

The infant's mother, as natural guardian, commenced this action against New York City, Lilly Transportation Corp., the owner of the taxicab, and Meyer Goldberg, the operator of the vehicle, seeking damages for the personal injuries suffered by the infant. She also sought, in a derivative cause of action, damages for loss of the infant's services and medical expenses. At trial, the action was discontinued against Goldberg.

The jury returned a verdict against Lilly and New York City, apportioning the liability between them in the ratio of 25% against Lilly and 75% against the city. On appeal, the Appellate Division affirmed the judgment of liability, but ordered a new trial on the issue of damages, holding that the award had been tainted by plaintiffs' improper use of medical textbooks at trial.

On retrial of the issue of damages, the jury awarded the infant $500,000 and his mother $270,000. On appeal, the Appellate Division, holding the award to the infant's mother excessive, ordered a new trial on the issue of damages unless plaintiff agreed to accept a reduction to $125,000. Plaintiff having so stipulated, the Appellate Division affirmed the judgment of the trial court.

On appeal to this court, the City of New York contends that a municipality acting in its governmental capacity to protect the public from external hazards cannot be held liable in damages for its failure to furnish adequate protection. We hold that a municipality whose police department voluntarily assumes a duty to supervise school crossings the assumption of that duty having been relied upon by parents of school children may be held liable for its negligent omission to provide a guard at a designated crossing or to notify the school principal or take other appropriate action to safeguard the children.

By its waiver of governmental immunity (Court of Claims Act, § 12-a (L.1929, ch. 467, § 1), now § 8), the State assumed liability for its conduct and consented to have such liability determined in accordance with the same rules of law applicable to individuals and corporations. As a concomitant of the State's waiver of immunity, the governmental subdivisions of the State its counties, cities, towns and villages formerly sheltered under the protective cloak of the State's immunity (Murtha v. New York Homeopathic Med. Coll. & Flower Hosp., 228 N.Y. 183, 185, 126 N.E. 722), also became "answerable equally with individuals and private corporations for wrongs of officers and employees" (Bernardine v. City of New York, 294 N.Y. 361, 365, 62 N.E.2d 604, 605; Motyka v. City of Amsterdam, 15 N.Y.2d 134, 138, 256 N.Y.S.2d 595, 596, 204 N.E.2d 635, 636). As in the case of an individual or private corporation, however, a municipality's liability must be premised upon the existence and breach of a duty flowing from the municipality to the plaintiff. (Motyka v. City of Amsterdam, 15 N.Y.2d 134, 256 N.Y.S.2d 595, 204 N.E.2d 635, supra.) Absent the existence and breach of such a duty, the abrogation of governmental immunity, in itself, affords little aid to a plaintiff seeking to cast a municipality in damages.

Moreover, to sustain liability against a municipality, the duty breached must be more than a duty owing to the general public. There must exist a special relationship between the municipality and the plaintiff, resulting in the creation of "a duty to use due care for the benefit of particular persons or classes of persons" (Motyka v. City of Amsterdam, 15 N.Y.2d at p. 139, 256 N.Y.S.2d at p. 598, 204 N.E.2d at p. 637, supra; Evers v. Westerberg, 38 A.D.2d 751, 329 N.Y.S.2d 615, affd., 32 N.Y.2d 684, 343 N.Y.S.2d 361, 296 N.E.2d 257; see generally, 18 McQuillin, Municipal Corporations, p. 126).

For example, as a general rule, a municipality's duty to furnish water to protect its residents against damage caused by fire is a duty inuring to the benefit of the public at large, rather than to the individual members of the community. (Motyka v. City of Amsterdam, 15 N.Y.2d 134, 138, ...