Murchinson v. State

• Decision Date: 19 July 2012
• Citation: 97 A.D.3d 1014,2012 N.Y. Slip Op. 05691,949 N.Y.S.2d 789
• Parties: David MURCHINSON, Appellant, v. STATE of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

97 A.D.3d 1014

949 N.Y.S.2d 789

2012 N.Y. Slip Op. 05691

David MURCHINSON, Appellant,

v.STATE of New York, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

July 19, 2012.

O'Connell & Aronowitz, PC, Plattsburgh (Donald W. Biggs of counsel), for appellant.

Eric T. Schneiderman, Attorney General, Albany (Julie M. Sheridan of counsel), for respondent.

Before: ROSE, J.P., SPAIN, MALONE JR., KAVANAGH and EGAN JR., JJ.

EGAN JR., J.

Appeal from a judgment of the Court of Claims (Hard, J.), entered April 29, 2011, upon a decision of the court in favor of defendant.

On May 16, 2006, claimant's long-time girlfriend, Amy Islas, received a telephone call informing her that her father, “Hawk,” was missing from her parents' home on State Route 374 in the Town of Dannemora, Clinton County. Hawk had entered the woods earlier in the day to check on his minnow traps in a local stream and, after several hours passed without his safe return, was feared lost. Islas proceeded to her parents' residence and, after stopping to pick up his son at a local gym, claimant arrived there as well and parked his Chevrolet pickup truck in the driveway.

Various employees of the State Police and Department of Environmental Conservation (hereinafter DEC), together with members of the Dannemora Volunteer Fire Department, responded to the scene and, with the assistance of a K–9 unit and a helicopter from the Department of Homeland Security, located Hawk. At approximately 12:45 A.M., Hawk emerged from the woods and was transported to a local hospital for evaluation.

Shortly thereafter, claimant, Islas and their son climbed into claimant's truck—intending to go to the hospital. According to claimant, his view of the highway was blocked by both the cap on the back of his truck and vehicles parked along the south shoulder of State Route 374, prompting him to approach a group of uniformed individuals gathered on the front lawn of the residence and ask for assistance in backing out of the driveway. As claimant pulled out onto the highway—purportedly with the assistance of a DEC forest ranger—his truck was struck by an eastbound vehicle operated by Hamilton Shutts, causing various injuries to claimant. Shutts, who allegedly had a blood alcohol content of .17%, was convicted of vehicular assault in the second degree and sentenced to six months in jail and a period of probation; after violating the terms thereof, Shutts was sentenced to 1 to 3 years in prison.¹

In August 2008, and after being granted permission to file a late claim, claimant commenced this action against defendant alleging that its employees were negligent in guiding his vehicle onto the highway and into the path of oncoming traffic. A bifurcated trial ensued, during the course of which defendant took the position that none of its employees assisted claimant in backing out of the driveway on the night in question. The Court of Claims credited claimant's version of the events, however, finding that a DEC forest ranger did in fact assist claimant with backing out of the driveway and, further, was negligent in the manner in which he did so. The Court of Claims nonetheless dismissed the claim, concluding that—at the time of the accident—the ranger was performing a governmental function within the exercise of his discretion and, as such, defendant was immune from liability. This appeal by claimant ensued.

We affirm. “Although the State long ago waived sovereign immunity on behalf of itself and its municipal subdivisions, the common-law doctrine of governmental immunity continues to shield public entities from liability for discretionary actions taken during the performance of governmental functions” ( Valdez v. City of New York, 18 N.Y.3d 69, 75–76, 936 N.Y.S.2d 587, 960 N.E.2d 356 [2011] [citations omitted] ). Thus, “even if a plaintiff establishes all elements of a negligence claim, a state or municipal defendant engaging in a governmental function can avoid liability if it timely raises the defense and proves that the alleged negligent act or omission involved the exercise of discretionary authority” ( id. at 76, 936 N.Y.S.2d 587, 960 N.E.2d 356;see McLean v. City of New York, 12 N.Y.3d 194, 202, 878 N.Y.S.2d 238, 905 N.E.2d 1167 [2009];Lauer v. City of New York, 95 N.Y.2d 95, 99, 711 N.Y.S.2d 112, 733 N.E.2d 184 [2000];Tango v. Tulevech, 61 N.Y.2d 34, 40, 471 N.Y.S.2d 73, 459 N.E.2d 182 [1983] ). In this regard, the mere existence of discretionary authority will not suffice; rather, the municipal defendant must establish that such discretionary authority indeed was exercised ( see Mon v. City of New York, 78 N.Y.2d 309, 313, 574 N.Y.S.2d 529, 579 N.E.2d 689 [1991];Haddock v. City of New York, 75 N.Y.2d 478, 484, 554 N.Y.S.2d 439, 553 N.E.2d 987 [1990];Metz v. State of New York, 86 A.D.3d 748, 751, 927 N.Y.S.2d 201 [2011] ).

As should be apparent from the foregoing, the availability of the governmental immunity defense hinges upon the performance of a governmental function and the corresponding exercise of discretionary authority. A governmental function generally is defined as one “undertaken for the protection and safety of the public pursuant to the general police powers” ( Balsam v. Delma Eng'g Corp., 90 N.Y.2d 966, 968, 665 N.Y.S.2d 613, 688 N.E.2d 487 [1997];accord Sebastian v. State of New York, 93 N.Y.2d 790, 793, 698 N.Y.S.2d 601, 720 N.E.2d 878 [1999] ), whereas a proprietary function is one in which “governmental activities essentially substitute for or supplement traditionally private enterprises” ( Sebastian v. State of New York, 93 N.Y.2d at 793, 698 N.Y.S.2d 601, 720 N.E.2d 878 [internal quotation marks and citations omitted] ). Here, crediting claimant's proof,² it is apparent that the unidentified ranger was—at the time of claimant's accident—engaged in traffic control or regulation, which “is a classic example of a governmental function undertaken for the protection and safety of the public pursuant to the general police powers” ( Balsam v. Delma Eng'g Corp., 90 N.Y.2d at 968, 665 N.Y.S.2d 613, 688 N.E.2d 487;accord Santoro v. City of New York, 17 A.D.3d 563, 564, 795 N.Y.S.2d 60 [2005];Eckert v. State of New York, 3 A.D.3d 470, 470, 771 N.Y.S.2d 132 [2004];see Lynch v. State of New York, 37 A.D.3d 772, 773, 831 N.Y.S.2d 228 [2007] ), thus placing the ranger's asserted negligence “well within the immunized ‘governmental’ realm of municipal responsibility” ( Balsam v. Delma Eng'g Corp., 90 N.Y.2d at 968, 665 N.Y.S.2d 613, 688 N.E.2d 487).

As to whether the ranger was engaged in a discretionary or ministerial act at the time of the collision, the case law makes clear that a “discretionary or quasi-judicial act[ ] involve[s] the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a...