Turturro v. City of N.Y.

• Citation: 45 N.Y.S.3d 874,28 N.Y.3d 469,68 N.E.3d 693,2016 N.Y. Slip Op. 08579
• Parties: Anthony TURTURRO, an Infant, by His Mother and Natural Guardian, Elida Turturro, et al., Respondents, v. CITY OF NEW YORK, Appellant, et al., Defendants.
• Decision Date: 22 December 2016
• Court: New York Court of Appeals

28 N.Y.3d 469
68 N.E.3d 693
45 N.Y.S.3d 874
2016 N.Y. Slip Op. 08579

Anthony TURTURRO, an Infant, by His Mother and Natural Guardian, Elida Turturro, et al., Respondents,
v.
CITY OF NEW YORK, Appellant, et al., Defendants.

Court of Appeals of New York.

Dec. 22, 2016.

45 N.Y.S.3d 878

Zachary W. Carter, Corporation Counsel, New York City (Susan P. Greenberg, Richard Dearing and Cecelia Chang of counsel), for appellant.

Gallagher, Walker, Bianco & Plastaras, Esqs., Mineola (Robert J. Walker of counsel), for respondents.

Dennis M. Brown, County Attorney, Hauppauge (Christopher A. Jeffreys of counsel), for County of Suffolk, amicus curiae.

Harris Beach PLLC, New York City (Bradley M. Wanner and Andrew J. Orenstein of counsel), for International Municipal Lawyers Association, amicus curiae.

OPINION OF THE COURT

FAHEY, J.

68 N.E.3d 697

28 N.Y.3d 474

On this appeal, we are asked to determine whether the City of New York was acting in a proprietary or governmental capacity when it failed to conduct an adequate study of whether traffic calming measures should be implemented after it received numerous, repeated complaints of speeding on a Brooklyn roadway. We are also asked to determine whether the evidence was legally sufficient to uphold the jury's verdict regarding the issues of proximate cause and the City's qualified immunity.

We hold that because the acts or omissions claimed to have caused the injury were within the field of roadway design and safety, the City was acting in a proprietary capacity. Plaintiffs therefore had no obligation to prove the existence of a special duty. Furthermore, there was a rational process by which the jury could have concluded that the City's negligence was a proximate cause of the accident and that the doctrine of qualified immunity did not apply.

I.

On December 5, 2004, plaintiff Anthony Turturro, then 12 years old, was riding his bicycle on Gerritsen Avenue in Brooklyn. At the time, Gerritsen Avenue was a straight, four-lane road running roughly north to south with two lanes of traffic going in each direction, divided by a double yellow line. In the relevant area, the western side of Gerritsen Avenue was bordered

68 N.E.3d 698

45 N.Y.S.3d 879

by storefronts, and the eastern side was bordered by parkland and recreational areas. The speed limit on Gerritsen Avenue was 30 miles per hour.

At approximately 6:30 p.m., Anthony attempted to cross Gerritsen Avenue on his bicycle in the middle of the block. He was struck by a vehicle traveling southbound on Gerritsen Avenue,

28 N.Y.3d 475

driven by defendant Louis Pascarella. Based on the skid marks found at the scene after the collision, a police investigation determined that Pascarella was traveling at a speed of at least 54 miles per hour before the collision. Anthony survived, but with serious injuries. Pascarella subsequently pleaded guilty to assault in the second degree for recklessly causing serious physical injury to Anthony. Plaintiffs commenced this negligence action against the City, Pascarella, and the owner of the vehicle Pascarella was driving.

During trial, plaintiffs presented evidence that the City had received several letters from local residents, including children, and elected officials between 2002 and 2004 complaining of speeding on Gerritsen Avenue, some of which stated that the roadway was being used for "drag racing" and was being treated as a "racetrack." Several individuals requested traffic signals to curb the speeding. Some requested a traffic study. Those complaints were routed to the Intersection Control Unit (ICU) of the Department of Transportation (DOT). Plaintiffs' witnesses testified that the role of ICU was to study particular intersections and determine whether those intersections needed installation of traffic signals or alteration of existing signals. ICU conducted four studies of three intersections on Gerritsen Avenue before Anthony's accident—two studies in 2002 and two in 2004. Three of the four ICU studies also examined the approach speed of vehicles traveling through the particular intersection that was the subject of the study. ICU found that many vehicles were speeding at each of the intersections studied. ICU notified police of the speeding problem after each study.

Plaintiffs also presented evidence that ICU did not study speeding along an entire stretch of roadway. The Brooklyn Borough Engineer at the time of the accident testified that such a speed study would have examined speeding on the roadway during off-peak hours, DOT would have notified the police if it discovered speeding during such a study, and if police enforcement of the speed limit did not alleviate the problem, the issue would have been referred to the Planning Unit of DOT, which was responsible for implementing "traffic calming" measures on the City's roadways. Traffic calming measures are intended to lower the overall speed on a particular roadway by modifying driver behavior so that drivers are more likely to drive at or close to the speed limit. Such measures include speed humps, narrowed lanes, rumble strips, roundabouts, and raised crosswalks, among others.

28 N.Y.3d 476

Plaintiffs' expert testified that people generally drive more slowly where traffic calming methods have been implemented because such measures make drivers more cautious. The evidence presented at trial demonstrated that before Anthony's accident, the City had not conducted a study of potential traffic calming measures that could be used to address the problem of vehicles speeding along a stretch of Gerritsen Avenue. Plaintiffs' expert testified that laypeople often request traffic signals to curb speeding on a particular roadway, but that it was well known among traffic engineers that traffic signals do not control speed and could even exacerbate the problem. Significantly, plaintiffs' expert pointed

68 N.E.3d 699

45 N.Y.S.3d 880

out that the four ICU studies, which considered whether traffic control devices should be installed at particular intersections, did not study the problem of speeding along Gerritsen Avenue as a whole, making them inadequate to address that issue. In addition, according to plaintiffs' expert, once ICU determined that there was a speeding problem on Gerritsen Avenue and referred the issue to the police for enforcement of the speed limit, the City should have followed up to determine whether police enforcement had resolved the issue. If police enforcement was not controlling the speeding, plaintiffs' expert opined that the City should have conducted a traffic calming study and implemented traffic calming measures to reduce speeding.

The City's expert, by contrast, opined that ICU's studies and its referral of the speeding problem to police constituted an adequate response to complaints of speeding on Gerritsen Avenue. The City's expert testified that the accident rate and the average speed for Gerritsen Avenue were not abnormally high. The City also presented testimony from a DOT traffic engineer that the ICU studies contained "elements" of traffic calming. The engineer further testified, however, that "pure" traffic calming studies ordinarily were done by the Planning Unit of DOT, not ICU, and that after referral of the speeding problem to police, ICU generally did not follow up to determine whether police enforcement of the speed limit was successful unless there was another request for a traffic signal at a particular intersection.

After trial, the jury returned a verdict finding that Anthony, Pascarella, and the City were negligent, and that the negligence of each of them was a substantial factor in causing injury. The jury apportioned 10% of the liability to Anthony, 50% to Pascarella, and 40% to the City.

28 N.Y.3d 477

The City moved to set aside the verdict pursuant to CPLR 4404, arguing that it was entitled to qualified immunity because the ICU studies were adequate to address the problem of speeding on Gerritsen Avenue, and that its failure to conduct a traffic calming study or implement traffic calming measures was not a proximate cause of the accident. The City subsequently filed supplemental motion papers, in which it argued that the City was acting in a governmental capacity and therefore plaintiffs were required to prove special duty, or, in the alternative, that the City was not liable pursuant to the governmental function immunity doctrine.

Supreme Court denied the City's motion to set aside the verdict as to liability, but granted a new trial unless plaintiffs stipulated to a reduced damages award, which they did. Judgment was entered in plaintiffs' favor.

On appeal, the Appellate Division modified, by deleting the award to plaintiff Elida Turturro, Anthony's mother, for loss of services, and by...