Niagara Frontier Transit System, Inc. v. State

• Decision Date: 07 April 1977
• Docket Number: No. 57379,57379
• Citation: 394 N.Y.S.2d 930,57 A.D.2d 59
• Parties: NIAGARA FRONTIER TRANSIT SYSTEM, INC., Appellant, v. The STATE of New York, Respondent. Claim
• Court: New York Supreme Court — Appellate Division

Page 930

394 N.Y.S.2d 930

57 A.D.2d 59

NIAGARA FRONTIER TRANSIT SYSTEM, INC., Appellant, v. The STATE of New York, Respondent. Claim No. 57379.

Supreme Court, Appellate Division, Fourth Department.

Argued Feb. 15, 1977.

Decided April 7, 1977.

Runals, Broderick, Shoemaker, Richert, Berrigan & Doherty, Niagara Falls (Patrick J. Berrigan, Niagara Falls, of counsel), for appellant.

Brown, Maloney, Gallup, Roach & Busteed, Buffalo (Edmund S. Brown, Buffalo, of counsel), for respondent.

Before MOULE, J. P., and CARDAMONE, SIMONS, DILLON and WITMER, JJ.

MOULE, Justice Presiding.

Claimant appeals from a judgment of the Court of Claims dismissing its claim against the State after trial. The claim seeks indemnification from the State, an alleged joint tortfeasor, for payment made by claimant in settling a personal injury action arising out of an accident involving one of its buses.

In the spring of 1969 work was commenced on the Church Street Arterial located in downtown Buffalo pursuant to the State Arterial Highway Improvement Program under which the State of New York had primary control. The Arterial runs in an east-west direction, with a 37-foot-wide roadway (two lanes) in each direction, separated by a four-foot raised mall. The design and plans for the highway provided for the maintenance of traffic during construction and they were submitted to the local municipality for suggestions and approval.

At the same time that the Arterial was under construction, work was being done on the Erie County Office Building along the north side of Church Street, between Pearl and Franklin Streets. There were periods when the north side of the Arterial was obstructed due to the necessity of placing heavy equipment there to erect a stone facade for the building.

As a result of this construction traffic complications ensued and it became necessary to establish plans for the maintenance of vehicular and bus traffic in the area. A decision was reached by the State of New York and the City of Buffalo to maintain two-way traffic along Church Street at all times. Commencing October 16, 1969 the south side of Church Street, between Pearl and Franklin Streets ¹, became a terminal area for some of claimant's buses. The plan which was instituted prohibited any vehicular traffic to use the south side of Church Street (the two eastbound lanes). All buses running south on Pearl Street would turn right, onto the south side of the Church Street Arterial, and proceed west bound on what would normally be the two eastbound lanes. At the same time the north side of Church Street, normally the two westbound lanes, would accommodate two-way vehicular traffic. The buses would then turn right onto Franklin Street and proceed in a northerly direction. This system necessitated loading and unloading passengers from the street side of the bus rather than the curb area.

At the center of the Arterial the four-foot raised mall provided protection to the passengers from the two-way traffic on the north side of Church Street. Additionally, three large wooden barricades were placed on the southeast corner of Church and Franklin Streets to prevent vehicles from entering the lanes from which the buses would be exiting.

On October 22, 1969 Maureen Stewart was injured when a bus ran over her foot as she stood near the center mall on the south side of Church Street, between Pearl and Franklin Streets. She and her mother brought a personal injury action against claimant and others. The action was settled when the girl and her mother accepted an offer of $45,000 made by claimant who then sought indemnification by the State for the amount paid.

The Court of Claims, in applying the doctrine of limited governmental immunity as set forth in Weiss v. Fote, 7 N.Y.2d 579, 200 N.Y.S.2d 409, 167 N.E.2d 63, found that claimant failed to establish any actionable negligence by the State of New York. We agree with this determination.

In Weiss v. Fote, supra, the Court of Appeals discussed at length those situations in which the State and other municipalities could be held liable in tort. The Court stated that it is proper and necessary to hold these bodies liable for injuries arising out of the day-by-day operations of government; e. g., injury resulting from the negligent maintenance of a highway, but to submit to a jury the reasonableness of the lawfully authorized deliberations of executive bodies presents a different question (7 N.Y.2d at 585, 200 N.Y.S.2d at 412, 167 N.E.2d at 65).

In this vein, the Court stated:

"In the area of highway safety, at least, it has long been the settled view, and an eminently justifiable one, that courts should not be permitted to review determinations of governmental planning bodies under the guise of allowing them to be challenged in negligence suits; something more than a mere choice between conflicting opinions of experts is required before the State or one of its subdivisions may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public" (7 N.Y.2d at 588, 200 N.Y.S.2d at 415, 167 N.E.2d at 67).

However, where it can be shown that a duly executed highway safety plan "either was evolved without adequate study or lacked reasonable basis", liability may attach where injury arises out of the operation of such a plan (7 N.Y.2d at 589, 200 N.Y.S.2d at 416, 167 N.E.2d at 68).

Claimant contends that the State's plan to place the bus terminal on the south side of Church Street was made without adequate study and lacked reasonable basis and that, therefore, ...