Garcia v. City of New York

• Decision Date: 20 October 1994
• Citation: 617 N.Y.S.2d 462,205 A.D.2d 49
• Parties: Ernesto GARCIA, as Administrator of the Estate of Ana Garcia, Deceased, and Ernesto Garcia, Individually, Plaintiff-Respondent, v. The CITY OF NEW YORK, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 462

617 N.Y.S.2d 462

205 A.D.2d 49

Ernesto GARCIA, as Administrator of the Estate of Ana Garcia, Deceased, and Ernesto Garcia Individually, Plaintiff-Respondent, v. The CITY OF NEW YORK, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Oct. 20, 1994.

John Hogrogian, of counsel (Pamela Seider Dolgow, with him, on the brief, Paul A. Crotty, Corporation Counsel of New York City, attorney), for defendant-appellant.

Norman E. Frowley, of counsel (Brian J. Isaac, with him, on the brief, Weitz & Luxemberg, attorneys), for plaintiff-respondent.

Before SULLIVAN, J.P., and CARRO, WALLACH, KUPFERMAN and TOM, JJ.

TOM, Justice.

The salient facts of this wrongful death action are not in dispute. Testimony at trial revealed that during a hot summer night on July 21, 1985, decedent Ana Garcia, a 32-year-old woman, illegally entered a public swimming pool facility in Van Cortlandt Park in the late evening and well after the pool had officially closed for the day. There were approximately 50-100 illegal swimmers already in the pool area, a number of whom had coolers and were drinking alcoholic beverages. The lights were off and no lifeguards or life-saving equipment were in the pool vicinity. At approximately 1AM the police and an ambulance were summoned and paramedics attempted to revive Ms. Garcia, who was removed from the pool in an unconscious state. The attempt by the paramedics proved futile and Ms. Garcia was later pronounced dead at North Central Bronx Hospital.

Decedent was accompanied to the pool by six other individuals. Various members of the group testified at trial that they had gained access to the pool either through a hole in the surrounding chain-link fence or by climbing over a brick wall; that they were aware the pool was closed; and that they were trespassing.

There is no dispute that the members of Ms. Garcia's party had been consuming alcohol before their arrival at the pool and had continued to do so throughout the night. One of the members of the decedent's group, a Ms. Ana Pagan Torres, testified that Ms. Garcia had been drinking gin that evening. At some unknown point thereafter, Ms. Garcia entered the pool, which was only three feet deep, became submerged and drowned.

The Estate of Ana Garcia commenced the within action on or about September 25, 1986 grounded on theories of negligence and nuisance. The matter was tried before a jury which found that the City was not negligent in maintaining the fence surrounding the pool (indeed, the evidence presented indicated that the fence was usually breached a short time after the Parks Department made repairs, which it did on numerous occasions) but that the City was negligent in failing to provide proper supervision at the pool. The jury found plaintiff's decedent and the City each to be 50% negligent and awarded plaintiff approximately $2,000,000 in damages.

The City thereafter moved to set aside the verdict as unsupported by the evidence and as excessive. The trial court, by decision and order entered April 20, 1992 (Lewis Friedman, J.), held that the special duty doctrine was inapplicable and that plaintiff's decedent had not assumed the risk so as to preclude the City's liability. The IAS court, however, granted the City's motion to the extent of ordering a new trial on the issue of damages unless plaintiff agreed to a reduction in the amount of damages, after comparative negligence, to $432,500. Plaintiff subsequently consented to the reduction and on June 3, 1992 judgment was entered, after the addition of interest and costs, in the amount of $615,343.04. The City now appeals.

It is axiomatic that in order to establish a prima facie case of negligence, a plaintiff must show that the defendant was negligent and that such negligence was a substantial factor in bringing about the events which caused plaintiff's injuries (Boltax v. Joy Day Camp, 67 N.Y.2d 617, 499 N.Y.S.2d 660, 490 N.E.2d 527; Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 434 N.Y.S.2d 166, 414 N.E.2d 666). With regard to the instant case, a municipality has a duty to maintain its parks and playground facilities in a reasonably safe condition (Nicholson v. Board of Educ., 36 N.Y.2d 798, 369 N.Y.S.2d 703, 330 N.E.2d 651; Caldwell v. Village of Island Park, 304 N.Y. 268, 107 N.E.2d 441). However, a municipality is not an insurer of the safety of those who use its facilities, and its only duty is to exercise ordinary care in the supervision, construction and maintenance of those facilities (Curcio v. City of New York, 275 N.Y. 20, 9 N.E.2d 760; Pierce v. Village of Ravena, 264 A.D. 457, 36 N.Y.S.2d 42).

While the New York City Department of Parks and Recreation (the "Parks Department") was aware that trespassers frequently entered the pool facility after it officially closed at 7PM, it made all efforts to exclude the night swimmers by promptly repairing the surrounding fence each time it was cut; posting the operating hours of the pool; and locking the gates, securing the area and turning the lights off after closing. A night watchman was also on duty to patrol the area and monitor the activities taking place. The watchman, who was stationed in a guardhouse near the pool, was given specific instructions not to attempt to evict the trespassers since intruders have assaulted the watchman in the past. There have been other incidents regarding municipal pools in general in which the guardhouse had been pelted with rocks and bottles as the result of various confrontations. The night watchman was directed to keep a log of the number of swimmers and to report that number to the local precinct, and to call the police when the crowd got rowdy or boisterous or when assistance was required.

The policy of the Police Department was that they would only expel the trespassers if they became boisterous or otherwise disturbed the peace in order to avoid confrontations, community unrest and a possible riot. This procedure seems to have been implemented due to prior incidents of unrest in the City, especially during hot summer nights when large crowds often frequent the parks and pool areas to escape the heat and humidity.

The City, as a proprietor, took all reasonably necessary steps to secure the area and exclude illegal swimmers from its facilities after closing. Plaintiff's argument that the municipality breached its duty by failing to provide life-saving equipment, a life guard, and by neglecting to turn the lights on after closing is misplaced. The municipality was under no duty to continue operation of its pool facilities beyond its operating hours. Plaintiff's contention would lead to the incongruous result of having the trespassers dictate the operating hours of a public pool or subject the City to liability for injuries sustained by intruders. Moreover, even if a lifeguard had been provided, there is no evidence that his/her presence would have avoided the death of the decedent (see, Curcio v. City of New York, supra, 275 N.Y. at 24, 9 N.E.2d 760).

Plaintiff's contention that the night watchman should have taken some action or called the police to expel the crowd is equally unpersuasive. The night watchman who was alone and unarmed was instructed not to confront the intruders for his own safety. The temporary presence of police would not have kept the trespassers out. Decedent's companion, Ms. Torres, testified that the police had in the past chased people away, but as soon as the police departed, they would again reenter the pool. Any attempt by the City to exclude illegal swimmers from the pool after closing would have been ineffective, unfeasible or simply too costly. The City would have had to have deployed a regiment of police officers to guard the subject pool at all times after closing to effectively keep trespassers out. The City is not charged with such a duty.

Further, it has long been held that a municipality's provision of police protection to its citizenry is a resource allocating function that is owed to the public at large and is best left to the discretion of the policy makers (Cuffy v. City of New York, 69 N.Y.2d 255, 260, 513 N.Y.S.2d 372, 505 N.E.2d 937; Weiner v. Metropolitan Transp. Auth., 55 N.Y.2d 175, 448 N.Y.S.2d 141, 433 N.E.2d 124) absent the existence of a special relationship between plaintiff and defendant (Cuffy v. City of New York, supra, 69 N.Y.2d at 260, 513 N.Y.S.2d 372, 505 N.E.2d 937; De Long v. County of Erie, 60 N.Y.2d 296, 469 N.Y.S.2d 611, 457 N.E.2d 717).

Plaintiff makes no attempt to demonstrate a special relationship and it was, therefore, within the Police Department's discretion, in the interests of avoiding community unrest, to refrain from ejecting trespassers from the pool unless they became...