Lieberman v. Port Authority of New York and New Jersey

• Decision Date: 05 March 1992
• Parties: Belle LIEBERMAN, Plaintiff-Respondent, v. The PORT AUTHORITY OF NEW YORK AND NEW JERSEY, a body corporate and politic, Defendant-Appellant, and Charles Sherod, Third-Party Defendant.
• Court: New Jersey Superior Court — Appellate Division

Page 456

254 N.J.Super. 456

603 A.2d 983

Belle LIEBERMAN, Plaintiff-Respondent, v. The PORT AUTHORITY OF NEW YORK AND NEW JERSEY, a body corporate and politic, Defendant-Appellant and Charles Sherod, Third-Party Defendant.

Superior Court of New Jersey Appellate Division.

Submitted Jan. 27, 1992.

Decided March 5, 1992.

Hugh H. Welsh, New York City, for defendant-appellant (Hugh H. Welsh, New York City, of counsel; Donald F. Burke, Brick, on the briefs).

Krumholz Horn Shechtman Hirsch, Jersey City, for plaintiff-respondent (Alan L. Krumholz, on the brief).

No other parties participated in this appeal.

Before Judges PETRELLA, R.S. COHEN and ARNOLD M. STEIN.

The opinion of the court was delivered by

PETRELLA, P.J.A.D.

The Port Authority of New York and New Jersey (Port Authority) appeals, on leave granted, from the denial of its motion to dismiss the complaint filed by Belle Lieberman as well as the denial of its motion for reconsideration. It argues on appeal that there is no cause of action against it for enhanced risk to commuters due to the presence of persons who are not customers or business invitees in the Port Authority Bus Terminal (Bus Terminal) in New York City.

The incident which gave rise to this law suit occurred about 8:10 a.m. on February 1, 1989 when Lieberman was walking out of a bakery at the Bus Terminal. She was knocked to the ground by third-party defendant Charles Sherod who stole her pocketbook. A Port Authority police officer immediately apprehended and arrested Sherod.

Lieberman, a North Bergen, New Jersey resident, filed her complaint on January 22, 1990, alleging that the Port Authority breached a duty it owed to her by permitting persons who are neither customers nor business invitees to occupy and sometimes inhabit portions of the Bus Terminal, thereby exposing others to increased risk of danger. Her complaint also contended that the Port Authority failed to provide adequate police protection.

On October 29, 1990, Lieberman's attorney served the Port Authority with a notice to produce documents from January 1980 to January 1990 pertaining to crime statistics and problems with so-called homeless people. The Port Authority objected to the production of the documents as overbroad. It also questioned the relevancy of deposition testimony plaintiff sought to use from another lawsuit of testimony of an employee in charge of a project to develop a policy and strategy for dealing with the presence of homeless persons in its public facilities. However, it did not object to the use of that deposition.

In February 1991, the Port Authority moved to dismiss the complaint for failure to state a cause of action. The motion was denied by an order entered on May 7, 1991 for reasons set forth in a letter opinion of the same date. The motion judge held the Port Authority to the same standard of care as a private or commercial entity and ruled that it could be held liable for injuries to invitees from foreseeable criminal acts of third parties. He relied in large part on the consent to suit provision of N.J.S.A. 32:1-162, as well as the fact that the Port Authority has its own police force. The judge concluded the Port Authority "is subject to liability for the negligent omissions of any precautions which reasonably prudent law enforcement officer could take." Reconsideration was denied.

The motion judge relied on Goldberg v. Housing Authority of Newark, 38 N.J. 578, 186 A.2d 291 (1962), which had declined to hold that the housing authority had a duty to provide police protection to tenants of its housing project. The judge distinguished the instant case by stating that unlike the residential project in Goldberg, the Port Authority has its own police force, and thus it owes a duty to provide police protection to invitees. We reject that conclusion. Merely because the Port Authority maintains its own police force does not expose it to liability for failure to provide police protection. See Bizien v. Port Authority of States of New York and New Jersey, 577 F.Supp. 1093 (E.D.N.Y.1983).

The Port Authority is a bi-state agency created by interstate compact between New Jersey and New York and is designated "a body corporate and politic" by legislation enacted in the respective states. N.J.S.A. 32:1-4; N.Y. Unconsol. Laws § 6604 (McKinney 1979). See Port Authority of New York and New Jersey v. Ingram, 232 N.J.Super. 401, 404, 557 A.2d 337 (App.Div.1989). It is a governmental agency of both states and is engaged in the performance of essential governmental functions. See Mineo v. Port Authority of New York and New Jersey, 779 F.2d 939 (3d Cir.1985), rehearing denied, 783 IF.2d 42 (3rd Cir.1986), cert. denied, 478 U.S. 1005, 92 L.Ed.2d 712, 106 S.Ct. 3297 (1986); Trippe v. Port of New York Authority, 14 N.Y.2d 119, 249 N.Y.S.2d 409, 198 N.E.2d 585 (1964); Port of New York Authority v. J.E. Linde Paper Co., 205 Misc. 110, 127 N.Y.S.2d 155 (Municipal Court 1953); Port of New York Authority v. City of Newark, 17 N.J.Super. 328, 331, 85 A.2d 815 (Chan.Div.1952). The legislation which authorized the Port Authority to undertake construction, operation and maintenance of the Bus Terminal expressly provides that the Port Authority "shall be regarded as performing an essential governmental function in undertaking the construction, maintenance and operation" of the Bus Terminal. N.J.S.A. 32:2-23.3; N.Y. Unconsol. Laws § 6703 (McKinney 1979).

Traditionally, the Port Authority was cloaked with sovereign immunity as an instrumentality of the two states. However, in 1951, both states abrogated this immunity. See N.J.S.A. 32:1-157 et seq.; N.Y. Unconsol. Laws § 7101 [et seq.] (McKinney 1979). See also N.J.S.A. 32:1-162 and N.Y. Unconsol. Laws § 7106 (McKinney 1979) ("... Although the Port Authority is engaged in the performance of governmental functions, the said two States consent to liability on the part of the Port Authority in such suits, actions or proceedings for tortious acts committed by it and its agents to the same extent as though it were a private corporation.").

Notwithstanding this limited consent to suit, the common law doctrine of immunity to provide police protection was not waived. The common law rule that a governmental agency, acting in its governmental capacity, cannot be liable for failure to provide adequate police protection remains unless the injured party establishes a special relationship. ¹ See Crosland v. New York City Transit Authority, 68 N.Y.2d 165, 506 N.Y.S.2d 670, 498 N.E.2d 143 (1986); Miller v. State, 62 N.Y.2d 506, 478 N.Y.S.2d 829, 467 N.E.2d 493 (1984); Weiner v. Metropolitan Transportation Authority, 55 N.Y.2d 175, 448 N.Y.S.2d 141, 433 N.E.2d 124 (1982). See also Annotation, Liability of Municipality or Other Governmental Unit for Failure to Provide Police Protection, 46 A.L.R.3d 1084, 1087-1088 (1972) (Issue of immunity and that of liability are separate and distinct. When a State consents to be sued, it "does nothing more than waive its immunity from action; it does not create a cause of action where none previously existed."). The fact that the Port Authority maintains and operates its own police force does not change the result. Bizien v. Port Authority of States of New York and New Jersey, supra, 577 F.Supp. 1093. New York decisions are persuasive here because the Port Authority is a bi-state agency and "it is eminently desirable ... that the path of judicial decision in the courts of the two States be a common one." Moonachie v. Port of New York Authority, 38 N.J. 414, 425, 185 A.2d 207 (1962). Thus, decisions of the courts of New York ² are to be considered as "highly influential precedent." Ibid. In light of this, and because the parties do not argue choice of law issues we need not pause to consider conflict of law principles. See Veazey v. Doremus, 103 N.J. 244, 510 A.2d 1187 (1986).

Plaintiff attempts to frame her claim against the Port Authority as a failure of a landlord/building operator or common carrier to provide a reasonably safe terminal for invitees. She argues that her claim is not based on a failure to provide police protection. We reject this argument and conclude that based on the specific act or omission out of which the injury arises, the activities for which plaintiff seeks to hold the Port Authority liable involve and stem directly from a failure to allocate police resources.

Weiner v. Metropolitan Transportation Authority, 55 N.Y.2d 175, 448 N.Y.S.2d 141, 433 N.E.2d 124 (1982), presented consolidated cases in which the plaintiffs had been attacked as each had entered a subway station. The allegation was that the Transit Authority, acting in its proprietary capacity, owed a duty of reasonable care to protect passengers from the foreseeable criminal acts of a third party, and that this duty was coextensive with that owed to a passenger by a private common carrier or property owner. Complaint reports of the transit police had established that during a nine-month period, nine attacks had occurred at the station in question.

The New York Court of Appeals held that the activities for which the plaintiffs sought to hold the Transit Authority liable "involve or grow directly out of the failure to allocate police resources." 448 N.Y.S.2d at 144, 433 N.E.2d at 127. The court iterated the rule that absent a special relationship, a governmental entity will not be held liable for failure to provide adequate police protection or allocation of police resources. Ibid.

On the issue of the subway constituting a proprietary activity, the Court stated:

It 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 or is in control of the location in which the injury occurred. [Id. at 144, 433 N.E.2d at 127].

The Court also said:

The New York City Transit...