Weiner v. Metropolitan Transp. Authority

Citation55 N.Y.2d 175,448 N.Y.S.2d 141
Parties, 433 N.E.2d 124 Ann G. WEINER, Respondent, v. METROPOLITAN TRANSPORTATION AUTHORITY, Defendant, and New York City Transit Authority, Appellant. Henrietta SHERNOV, Appellant, v. NEW YORK CITY TRANSIT AUTHORITY, Respondent.
Decision Date18 February 1982
CourtNew York Court of Appeals
Eugene Freidus, Richard K. Bernard, for appellant in the first above-entitled action and respondent in the second above-entitled action
OPINION OF THE COURT

MEYER, Judge.

The New York City Transit Authority owes no duty to protect a person on its premises from assault by a third person, absent facts establishing a special relationship between the authority and the person assaulted. That a nongovernmental common carrier would be liable under the same factual circumstances is not determinative of the authority's liability. Its immunity from such liability rests upon the same considerations as does the immunity of a municipality or other governmental body from liability for failure to provide adequate police protection, for the duty if one were recognized would necessarily implicate the Transit Authority police. Accordingly, the order of the Appellate Division, First Department, 80 A.D.2d 514, 435 N.Y.S.2d 594, in the Weiner case should be reversed, and the order of the Appellate Division, Second Department, 79 A.D.2d 1021, 435 N.Y.S.2d 55, in the Shernov case should be affirmed, though on a rationale different from that of the Appellate Division.

In the Weiner case the authority 1 moved for summary judgment. The papers on the motion establish that plaintiff entered the 25th Street end of the 23rd Street station of the Eighth Avenue subway at about 12:15 p. m. on December 4, 1973. There is a change booth at the 25th Street entrance but a sign at street level states that there is a clerk in the booth only between the hours of 2:55 p. m. and 7:30 p. m., and that anyone without a token must use the 23rd Street entrance at which a clerk is in attendance full time. Plaintiff proceeded from the street to the token booth level, paid her fare with a token and had begun to descend to the train level when she was accosted on the steps by a man who blocked her way. There was no one else on the stairway. The man slashed at her handbag with a knife, cutting through its strap, but at the same time cutting her wrist. Complaint reports of the transit police establish that during the period January 13 through October 23, 1973 13 separate incidents of robbery or assault occurred, 9 of them at the 25th Street end of the station when the token booth was closed and 8 of them at knifepoint.

Trial Term granted the authority's motion and dismissed the complaint. The Appellate Division, however, reversed as to the Transit Authority, holding that its knowledge of the prior incidents while the entrance was unmanned presented a triable issue of fact as to negligence. The Transit Authority appeals on a certified question.

The Shernov case involved an assault upon and attempted rape of plaintiff in the New Utrecht Avenue station of the Sea Beach line. It too included evidence of prior such assaults, some in the same station and some elsewhere on the line. The psychological impact on plaintiff was sufficiently great that the case did not come to trial until almost 16 years after the incident. A Civil Court jury awarded plaintiff a $50,000 verdict, which was, however, reversed by the Appellate Term on the ground that the Transit Authority had no legal duty to protect its passengers from crime. The Appellate Division disagreed with respect to duty, but nonetheless affirmed on the ground that plaintiff's evidence was insufficient to establish proximate cause. The appeal to us is on a question certified by the Appellate Division.

In each case the plaintiff argues that the Transit Authority is engaged in a proprietary function and subject to the same liability to protect its passengers from assault as is any common carrier (Green Bus Lines v. Ocean Acc. & Guar. Corp., 287 N.Y. 309, 312, 39 N.E.2d 251; see Gillespie v. Brooklyn Hgts. R. R. Co., 178 N.Y. 347, 70 N.E. 857; 1 N.Y. PJI2d 419) or as is the owner of real property who is aware of criminal acts that have occurred on his premises (Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 429 N.Y.S.2d 606, 407 N.E.2d 451). The Transit Authority on the other hand contends that it performs a governmental function and is not under any greater duty to provide police protection than is any other municipality (Riss v. City of New York, 22 N.Y.2d 579, 293 N.Y.S.2d 897, 240 N.E.2d 860; Bass v. City of New York, 38 A.D.2d 407, 380 N.Y.S.2d 569, affd. 32 N.Y.2d 894, 346 N.Y.S.2d 814, 300 N.E.2d 154; see Garrett v. Town of Greece, 55 N.Y.2d 774, 447 N.Y.S.2d 246, 431 N.E.2d 971; Ann., 46 A.L.R.3d 1084), and, therefore, absent a special relationship 2 such as existed in Florence v. Goldberg, 44 N.Y.2d 189, 404 N.Y.S.2d 583, 375 N.E.2d 763 and Schuster v. City of New York, 5 N.Y.2d 75, 180 N.Y.S.2d 265, 154 N.E.2d 534, cannot be held liable. The issue is one on which we have not passed (cf. Scalise v. City of New York, 3 N.Y.2d 951, 169 N.Y.S.2d 26, 146 N.E.2d 786), but on which, in addition to the two cases now under consideration, the lower courts have spoken a number of times (Bardavid v. New York City Tr. Auth., 82 A.D.2d 776, 440 N.Y.S.2d 648; Amoruso v. New York City Tr. Auth., 12 A.D.2d 11, 207 N.Y.S.2d 855; Biniewski v. i City of New York, 267 App.Div. 108, 44 N.Y.S.2d 543; Prinz v. City of New York, 98 Misc.2d 952, 415 N.Y.S.2d 200; Eisman v. Port Auth. Trans Hudson Corp., 96 Misc.2d 678, 409 N.Y.S.2d 578; see Moriarity v. New York City Tr. Auth., 11 A.D.2d 654, 201 N.Y.S.2d 600; Langer v. City of New York, 9 Misc.2d 1002, 171 N.Y.S.2d 390, affd. 8 A.D.2d 709, 185 N.Y.S.2d 751). We hold that there is no duty such as plaintiffs in these cases seek to enforce.

The Legislature has declared in subdivision 2 of section 1202 of the Public Authorities Law that the authority "shall be regarded as performing a governmental function in carrying out its corporate purpose and in exercising the powers granted by this title" and has authorized the authority to maintain a transit police force (Public Authorities Law, § 1204, subd. 16) whose members are designated "police officers" for purposes of the Criminal Procedure Law ( § 1.20, subd. 34, par. and whose powers and duties as defined in section 1204, though geographically limited, are otherwise quite as broad as those of a municipal police officer. It has also in section 1212 of the Public...

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