Weiss v. Fote

• Decision Date: 21 April 1960
• Citation: 7 N.Y.2d 579,200 N.Y.S.2d 409,167 N.E.2d 63
• Parties: , 167 N.E.2d 63 Pauline R. WEISS, Respondent-Appellant, v. Francis A. FOTE et al., Respondents, and City of Buffalo, Appellant. Willie L. ALEXANDER, Respondent, v. Francis A. FOTE, Defendant, and City of Buffalo, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 409

200 N.Y.S.2d 409

7 N.Y.2d 579, 167 N.E.2d 63

Pauline R. WEISS, Respondent-Appellant, v. Francis A. FOTE et al., Respondents, and City of Buffalo, Appellant.

Willie L. ALEXANDER, Respondent, v. Francis A. FOTE, Defendant, and City of Buffalo, Appellant.

Court of Appeals of New York.

April 21, 1960.

Anthony Manguso, Corp. Counsel, Buffalo (Daniel J. Lucitt, Buffalo, of counsel), for appellant.

Philip H. Magner, Jr., Samuel Sapowitch and Gerald L. Baskey, for respondent-appellant.

Willard M. Pottle, Buffalo, for Francis A. Fote, respondent.

Edmund S. Brown, Buffalo, for Willie Lee Alexander, respondent.

FULD, Judge.

In the early evening of October 31, 1955, a collision occurred in Buffalo between an automobile owned and opearated by Willie Alexander and an automobile operated by Francis Fote and owned by him and his wife. Alexander was proceeding south on Delaware Avenue and Fote was driving west on Delavan Avenue. The impact of the collision propelled Fote's car across the intersection, where it jumped the curb on the south-west corner and crushed Pauline Weiss, who had just alighted from a bus on her way home from work, against a fire hydrant. Mrs. Weiss sustained serious injuries and instituted an action, naming Alexander, the Fotes and the City of Buffalo as defendants. Alexander's car was damaged and he too brought suit against the city and Francis Fote.

At the trial, the plaintiffs sought to show that the traffic signal lights maintained by the City of Buffalo at the intersection of Delaware and Delavan Avenues were negligently designed in that the 'clearance interval' the four-second interval between the time the green signal for east-west traffic on Delavan Avenue ended and the signal for north-south traffic on Delaware Avenue turned green was too short, with the result, in this instance, that east-west traffic was 'green-lighted' before all of the north-south traffic had cleared the intersection. The city's evidence was that the lights had been designed and installed by its Board of Safety, that ample study of traffic conditions at the intersection, including numerous traffic checks, had been made prior to their installation in 1952 and that there was no showing of any other accident in the more than three years which had elapsed since that time.

The jury was instructed (1) to find the defendant city liable if it was negligent in failing to provides a sufficient 'clearance interval' and (2) to find the defendants Fote and Alexander liable if they drove into the intersection negligently. In each case, a verdict was returned in favor of the plaintiff, but only against the City of Buffalo; the consequent judgments were unanimously upheld by the Appellate Division, and the appeals, taken by both the city and the plaintiff Weiss, are here by permission of this court.

On the appeal by Mrs. Weiss from the judgment in favor of Alexander and the Fotes, we may simply say that there is no basis, on the record before us, for interfering with it; indeed, her suit was actually tried on the theory that the City of Buffalo alone was negligent. Consequently, we need concern ourselves solely with the question of the latter's liability, and as to this it is our conclusion that the evidence fails to show a breach of any duty owed to the plaintiffs by the city.

Even before the Legislature had, by the enactment of what is now section 8 of the Court of Claims Act, provided for the general waiver of immunity by the State, the immunity enjoyed by the State and its subdivisions with respect to the maintenance of the streets and highways had already been withdrawn. Reviewing the case law, which antedated passage of the immunity waiver provision, the court in Annino v. City of Utica, 276 N.Y. 192, 196, 11 N.E.2d 726, 727, declared that a municipality 'owed to the public the absolute duty of keeping its streets in a reasonably safe condition for travel'. See, also, Brusso v. City of Buffalo, 90 N.Y. 679; Storrs v. City of Utica, 17 N.Y. 104. But, in measuring that duty, we have long and consistently held that the courts would not go behind the ordinary performance of planning functions by the officials to whom those functions were entrusted. This rule, announced in 1883 in Urquhart v. City of Ogdensburg, 91 N.Y. 67, has been uniformly followed since that time. In the Urquhart case, the court denied liability for injuries arising out of a 'radical defect' in the plan of a sidewalk built by the municipality, and in the course of its opinion wrote (at page 71):

'The rule is well settled that where power is conferred on public officers or a municipal corporation to make improvements, such as streets, sewers, etc., and keep them in repair, the duty to make them is quasi judicial or discretionary, involving a determination as to their necessity, requisite capacity, location, etc., and for a failure to exercise this power or an erroneous estimate of the public needs, no civil action can be maintained.'

The rationale of the decision is found in language quoted by the court from Chief Judge Cooley's opinion in City of Lansing v. Toolan, 37 Mich. 152, 154: 'Courts and juries are not to say (municipal corporations) shall be punished in damages for not giving to the public more complete protection; for * * * that would be to take the administration of municipal affairs out of the hands to which it has been entrusted by law.'

It is significant, we believe, that the body of cases which follows Urquhart (see, e. g., Watson v. City of Kingston, 114 N.Y. 88, 91, 21 N.E. 102, 103; Paine v. Trustees etc. of the Village of Delhi, 116 N.Y. 224, 228, 22 N.E. 405, 406, 5 L.R.A. 797; Stern v. International Ry. Co., 220 N.Y. 284, 294, 115 N.E. 759, 762, 2 A.L.R. 487; Barrett v. State of New York, 220 N.Y. 423, 430-431, 116 N.E. 99, 101, 102, L.R.A. 1918C, 400; Pitman v. City of New York, 141 App.Div. 670, 672, 125 N.Y.S. 941, 943; Treadwell v. City of Yonkers, 192 App.Div. 421, 423, 182 N.Y.S. 675, 677) is completely set apart by its distinctive rationale from the body of cases which denies municipal liability on the broad ground that the sovereign can do no wrong. See, e. g., Maxmilian v. Mayor, 62 N.Y. 160, 164-165; Lefrois v. County of Monroe, 162 N.Y. 563, 566-567, 57 N.E. 185, 186, 187, 50 L.R.A. 206; Wilcox v. City of Rochester, 190 N.Y. 137, 141-142, 82 N.E. 1119, 1120, 17 L.R.A.,N.S., 741; Gewertz v. Berry, 258 N.Y. 505, 508, 180 N.E. 251. The first set of cases rests immunity on the policy of maintaining the administration of municipal affairs in the hands of state or municipal executive officers as against the incursion of courts and juries, while the other rests the immunity on the sovereign character of the state or municipality in the performance of its governmental functions. Bernardine v. City of New York, 294 N.Y. 361, 62 N.E.2d 604, 161 A.L.R., 364, makes it clear that the line of cases which predicated immunity from suit on the mere abstract principle of governmental sovereignty lost is legal force and effect with the passage of the Court of Claims Act. But Urquhart v. City of Ogdensburg, 91 N.Y. 67, supra, and the cases which follow it retain their vitality in our system of law, since there is no indication in section 8 of the Court of Claims Act that the State intended to broaden the scope of liability in an area where the sovereign immunity rule had already been withdrawn.

Lawfully authorized planning by governmental bodies has a unique character deserving of special treatment as regards the extent to which it may give rise to tort liability. It is proper and necessary to hold municipalities and the State liable for injuries arising out of the day-by-day operations of government for instance, the garden variety 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. See Dalehite v. United States, 346 U.S. 15, 42, 73 S.Ct. 956, 97 L.Ed. 1427; Feres v. United States, 340 U.S. 135, 141-142, 71 S.Ct. 153, 95 L.Ed. 152; United States v. Union Trust Co., 95 U.S.App.D.C. 189, 221 F.2d 62, 75-78, affirmed 350 U.S. 907, 76 S.Ct. 192, 100 L.Ed. 799; 2 Harper and James, Law of Torts (1st ed., 1956), p. 1608; Herzog, Liability of the State of New York for 'Purely Governmental' Functions, 10 Syracuse L.Rev. 30, 31-33; Peck, The Federal Tort Claims Act: A Proposed Construction of the Discretionary Function Exception, 31 Wash.L.Rev. 207, 209. To accept a jury's verdict as to the reasonableness and safety of a plan of governmental services and prefer it over the judgment of the governmental body which originally considered and passed on the matter would be to obstruct normal governmental operations and to place in inexpert hands what the Legislature has seen fit to entrust to experts. Acceptance of this conclusion, far from effecting revival of the ancient shibboleth that 'the king can do no wrong', serves only to give expression to the important and continuing need to preserve the pattern of distribution of governmental functions prescribed by constitution and statute.

In the case before us, the Common Council of Buffalo, acting through its delegated agent, the Board of Safety, made extensive studies of traffic conditions at the intersection of Delaware and Delavan Avenues. It was its considered judgment, based on these studies, that four seconds represented a reasonably safe 'clearance interval' and there is nothing to suggest that its decision was either arbitrary or unreasonable. To state the matter briefly, absent some indication that due care was not exercised in the preparation of the design or that no reasonable official could have adopted it and there is no indication of either here we perceive no basis for preferring the jury verdict, as to the reasonableness of the 'clearance interval', to that of the legally authorized body which made the determination in the...