Thompson v. City of New York

• Decision Date: 23 December 1991
• Citation: 78 N.Y.2d 682,585 N.E.2d 819,578 N.Y.S.2d 507
• Parties: , 585 N.E.2d 819 Luisa THOMPSON, Respondent, v. CITY OF NEW YORK, Appellant, et al., Defendants.
• Court: New York Court of Appeals Court of Appeals

Page 507

578 N.Y.S.2d 507

78 N.Y.2d 682, 585 N.E.2d 819

Luisa THOMPSON, Respondent, v. CITY OF NEW YORK, Appellant, et al., Defendants.

Court of Appeals of New York.

Dec. 23, 1991.

Victor A. Kovner, Corp. Counsel (Stephen J. McGrath and Leonard Koerner, New York City, of counsel), for appellant.

Martin S. Rothman, Daniel J. Friedman, Alan M. Friedman and Alyne I. Diamond, New York City, for respondent.

OPINION OF THE COURT

SIMONS, Judge.

Plaintiff was injured when struck by an automobile while crossing the Grand Concourse near its intersection with Field Place in The Bronx. It was dark at the time of the accident and a bulb in the nearest streetlight had burned out. At issue is plaintiff's right to damages from the City of New York based on the City's failure to maintain the streetlight by replacing the bulb.

Plaintiff sued the driver of the car that hit her, the City of New York and Acolyte Electric Corp., the company which had contracted with the City to maintain and repair streetlights. She alleged that the City was liable because it had breached its nondelegable duties to maintain the streetlights at or near the intersection in good working order and failed to maintain the streets and roadways in a safe condition. The City and Acolyte moved for summary judgment and the trial court granted their motions. The Appellate Division initially affirmed (157 A.D.2d 634, 550 N.Y.S.2d 653) but on reargument it modified the order by denying the City's motion for summary judgment, reinstating the complaint against it, and remitting the matter to the trial court for further proceedings (164 A.D.2d 773, 559 N.Y.S.2d 321). The appeal is before us by leave of the Appellate Division on a certified question. We now reverse. Plaintiff has established neither the City's legal duty to maintain streetlights nor that the street was defective or unsafe at the accident scene.

A municipality has a duty to maintain its streets in a reasonably safe condition (see, Lopes v. Rostad, 45 N.Y.2d 617, 623, 412 N.Y.S.2d 127, 384 N.E.2d 673; Oeters v. City of New York, 270 N.Y. 364, 368, 1 N.E.2d 466; Kamnitzer v. City of New York, 265 App.Div. 636, 639, 40 N.Y.S.2d 139). Although authorized to install street lighting by General City Law § 20(7), a municipality generally is required to do so only in certain situations where it is necessary to keep the street safe, i.e., where there is a defect or some unusual condition rendering the street unsafe to the traveling public (see, Griffin v. Town of Harrison, 268 N.Y. 238, 241-242, 197 N.E. 265; Bauer v. Town of Hempstead, 143 A.D.2d 793, 793-794, 533 N.Y.S.2d 342; Andrews v. City of Elmira, 128 App.Div. 699, 701, 113 N.Y.S. 711; Schlicher v. City of New York, 175 Misc. 696, 697, 24 N.Y.S.2d 177, affd. 264 App.Div. 763, 35 N.Y.S.2d 716; 4B Warren, Negligence in the New York Courts § 67.09[21][b], at 424 [4th ed.]. The duty to maintain existing streetlights is similarly limited to those situations in which illumination is necessary to avoid dangerous and potentially hazardous conditions (see, Mastro v. Maiorino, 174 A.D.2d 654, 571 N.Y.S.2d 515 [2d Dept.]).

In order to prevail, therefore, plaintiff had to show that the City permitted a dangerous or potentially hazardous condition to exist and cause injury (see, e.g., BOTTALICO v. State of New York, 59 N.Y.2d 302, 305, 464 N.Y.S.2d 707, 451 N.E.2d 454 [roadway shoulder maintained in a dangerous condition]; Barrett v. City of Buffalo, 96 A.D.2d 709, 710, 465 N.Y.S.2d 376 [jury question whether city created a dangerous condition by placing a cover on a water box with inadequate support]; Prager v. Motor Vehicle Acc. Ind. Corp., 74 A.D.2d 844, 845, 425 N.Y.S.2d 631, affd. 53 N.Y.2d 854, 440 N.Y.S.2d 179, 422 N.E.2d 824 [traffic light outage deemed a dangerous condition]; Meyer v. State of New York, 51 A.D.2d 828, 829, 379 N.Y.S.2d 546 ["malfunction reports" regarding traffic light placed State on notice of potentially hazardous condition]. ^* Plaintiff's claim that a light bulb burned out was not, standing alone, sufficient to establish a cause of action: she was obliged to show that by failing to replace the bulb, the City created a dangerous condition on the Grand Concourse. The most that appears, however, is that the roadway near the intersection of Field Place is large and at times busy--a condition which exists at many city intersections. The mere outage of the streetlight did not render this reasonably safe street dangerous.

Accordingly, the order of the Appellate Division should be reversed, with costs, defendant City's motion for summary judgment granted, and the certified question answered in the negative.

HANCOCK, Judge (dissenting).

I would affirm. I agree with the reasoning of the Appellate Division that "[b]y installing the streetlight in the first instance, the municipality voluntarily undertook to act on behalf of pedestrians such as plaintiff and induced their reasonable reliance on such undertaking (Kircher v. City of Jamestown, [74 NY2d 251, 544 N.Y.S.2d 995, 543 N.E.2d 443]; see also, Cuffy v. City of New York, 69 N.Y.2d 255 [513 N.Y.S.2d 372, 505 N.E.2d 937]. The issue here is thus not one of absence of street lighting, but the negligent maintenance of lighting already installed" (164 A.D.2d 773, 774-775, 559 N.Y.S.2d 321). Although the City might not have had a duty to install the streetlights in question in the first instance (see, Schlicher v. City of New York, 175 Misc. 696, 697, 24 N.Y.S.2d 177, affd. without opn. 264 App.Div. 763, 35 N.Y.S.2d 716), once the City had undertaken to install the streetlight, it was legally obligated to exercise due care in maintaining it (see, Allen v. Town of Hempstead, 145 A.D.2d 588, 536 N.Y.S.2d 129 [when a municipality undertakes to provide street lighting at a particular location, it may be held liable to a plaintiff who suffers injury due to a hazardous and dark condition created by a broken streetlight that is in close proximity to the site of the...