CARL BASS, as Administrator of the Estate of LOURDES R. BASS, Deceased, Respondent, v. CITY OF NEW YORK, Defendant, and NEW YORK CITY HOUSING AUTHORITY, Appellant.
Second Department
April 3, 1972
Even if the letter admitted of some doubt as to whether a guarantee in excess of that provided for was intended, the construction would have to be in favor of the guarantor. This is because an instrument of guarantee must be construed as limited to the transaction involved unless it clearly shows a continuing liability (Wesselman v. Engel Co., 309 N. Y. 27; 100 Parkway Road v. Johns-Manville, Inc., 258 App. Div. 736, affd. 285 N. Y. 747).
Judgment entered June 29, 1971 should be reversed and vacated on the law and judgment entered for defendant dismissing the complaint on the law, with costs.
KUPFERMAN, J. P., MURPHY, MCNALLY and TILZER, JJ., concur.
Judgment, Supreme Court, New York County, entered on June 29, 1971, unanimously reversed, on the law, and vacated. Defendant-appellant shall recover of plaintiff-respondent $50 costs and disbursements of this appeal.
Francis P. Cunnion (John Nielsen of counsel), for appellant.
RABIN, P. J. On this appeal in an action by an administrator to recover damages for the wrongful death of his intestate (his daughter) and for her conscious pain and suffering, the issue to be determined is whether the appellant, the New York City Housing Authority, is liable in negligence for the injuries and tragic death of the intestate resulting from a rape and homicide. This issue was determined adversely to the appellant after a nonjury trial.
The decedent, Lourdes R. Bass, an infant nine years of age, resided with her parents in a 14-story building which was one of 10 buildings comprising a housing project owned, operated, maintained, supervised and controlled by the appellant on a 16-acre site known as the Farragut Housing Project, a low rent public housing project operated pursuant to the
The testimony of three officers, called as witnesses for the plaintiff, is pertinent. One of them, a New York City policeman in charge of patrol assignments at the precinct located in the area in which the project is situated, testified that, although no city police officers were assigned to patrol the inside of the project and under normal circumstances the city police did not go inside the project unless requested or unless a crime was being committed, this policy was not limited to buildings owned by the appellant but was one which was followed with respect to all buildings in the area. A second witness, a patrolman employed by the appellant, testified as to his understanding that the appellant, at no time, excluded the New York City Police Department from patrolling the area. The third witness, an official of the Housing Patrolmen‘s Benevolent Association, testified that he had seen members of the city police force walking on the “outside of the perimeter” of the housing project.
The threshold question is whether the appellant owed a duty specifically to the decedent as a resident of the project to afford her adequate police protection so as to safeguard her against the criminal act which caused her death. If there was no such legal duty, the dependent issues of proximate causation and the intervening act of a third party are rendered academic.
The New York City Housing Authority is a public corporation organized under the Municipal Housing Authorities Law (L. 1934, ch. 4, comprising §§ 60 to 78, inclusive, of the former State Housing Law [L. 1926, ch. 823, as re-enacted by L. 1927, ch. 35], now the
The modern city functions in the public interest as proprietor and operator of a number of activities formerly and in some instances still carried on by private enterprise (Matter of New York City Housing Auth. v. Muller, supra, p. 342). Many of these activities may be carried on directly by the State or the municipality, even though they create and use a corporation for that purpose, or may be delegated to an independent agency such as the appellant Authority (
The operation of a police department is universally regarded as a governmental activity and, in the absence of other circumstances sufficient to indicate negligence, the failure to provide general police protection, or adequate protection, will not impose liability upon a municipality, even though a statute or judicial ruling has abrogated the municipal immunity for the torts of policemen (18 McQuillin, Municipal Corporations [3d ed. rev.], §§ 53.79-53.80). Despite the waiver of sovereign immunity by section 8 of the Court of Claims Act, which made municipalities answerable equally with individuals and private corporations for the wrongs of its officers and employees (Bernardine v. City of New York, 294 N. Y. 361, 365), the “rule is that, independent of sovereign immunity, a municipality is not liable for failure to supply general police or fire protec-
Prior to the occurrence of the incident at bar and pursuant to the general powers set forth in section 37 of the
Accordingly, although the trial court and the attorneys for the respective parties erroneously treated subdivision 5 of section 402 of the
It is well settled that a municipality, acting in its governmental capacity for the protection of the general public, cannot be cast in damages for a mere failure to furnish adequate police protection to a particular individual to whom no special duty is owed (Motyka v. City of Amsterdam, 15 N Y 2d 134, supra; Steitz v. City of Beacon, 295 N. Y. 51; Murrain v. Wilson Line, 270 App. Div. 372, affd. 296 N. Y. 845; cf. Schuster v. City of New York, 5 N Y 2d 75). It seems clear to us that, under the circumstances at bar, the appellant‘s maintenance of a police force, although primarily limited to the housing project, was such as to bring that governmental function within the purview of this rule and that, absent special circumstances creating a legal obligation to provide police protection to the decedent individually, there is no basis for imposing liability upon the
Moreover, we find no anomaly in distinguishing between the proprietary and governmental functions to be performed by the appellant (cf. Woodhull v. Mayor, 150 N. Y. 450). “To hold that the Bureau of Buildings may and does act in a dual capacity does not result in any inconsistency. When it approves or disapproves plans for the construction of buildings it may be held to perform a public or governmental function; when it takes action and expends municipal funds for the purpose of rendering a highway safe, it may be held to be engaged in a corporate function” (Oeters v. City of New York, 270 N. Y. 364, 368).
We also do not agree that there was any assumption of a special duty as indicated by the trial court when it reasoned, albeit on the erroneous assumption, that subdivision 5 of section 402 of the
It is our view, therefore, that the Legislature never intended, by its legislation enacted prior to the date of the incident and subsequent thereto, including subdivision 5 of section 402 of the
The cases relied upon by the trial court are inapposite and distinguishable from the facts and issues at bar and do not support the conclusion that a special duty of protection was owed to the decedent. Schuster v. City of New York (5 N Y 2d 75, supra) merely fixes one of the special circumstances in which a failure to provide police protection is actionable. In that case, the plaintiff‘s intestate had furnished information to the police leading to the arrest of a dangerous fugitive. After having afforded police protection to the intestate for some time, the police department discontinued it and, a short time thereafter, the plaintiff‘s intestate was shot and killed. Our Court of Appeals, in sustaining the legal sufficiency of the complaint, held, inter alia, that having called upon persons in possession of any information regarding the whereabouts of the fugitive to communicate such information in aid of law enforcement, “the public * * * owes a special duty to use reasonable care for the protection of persons who have collaborated with it in the arrest or prosecution of criminals, once it reasonably appears that they are in danger due to their collaboration” (pp. 80-81). The court concluded that special circumstances were present not only because unusual danger could readily be seen to be imminent but also because a failure to provide pro-
In Abbott v. New York Public Library (263 App. Div. 314) the plaintiff was assaulted in a public library. The defendant knew that the same assailant had three days before in the same library made an unjustified assault with a knife on another visitor. The defendant allowed the assailant to go at large without even notifying the police. On the day the plaintiff was assaulted the defendant‘s guards allowed the assailant, armed with a hatchet, to again enter the library. No warnings or instructions of any kind with regard to the assailant had been given to the attendant in the room where the plaintiff was assaulted. Under these circumstances, which involved a known danger presented by a specific individual known to the defendant and its personnel, the court held that the defendant owed to persons using the library “the duty of ordinary care and reasonable supervision so that such patrons would not be unreasonably exposed to dangers including dangers known to defendant but not to its invitees” (p. 319).
In Caldwell v. Village of Island Park (304 N. Y. 268) the injury sued upon was caused by exploding firecrackers set off in the defendant‘s park on Independence Day. The court held that the operation of a public park by a municipality is a quasiprivate or corporate and not a governmental function and, therefore, the defendant owed to those using the park facilities a duty of reasonable and ordinary care against foreseeable dangers. In that case, since there was repeated exploding of firecrackers over a considerable period of time preceding the accident, the defendant should have anticipated that these activities would continue and perhaps be increased on the day of the plaintiff‘s injuries — Independence Day.
In Amoruso v. New York City Tr. Auth. (12 A D 2d 11) the plaintiff was assaulted in a subway station and the court held the defendant to the standard of care of a railroad carrier charged with the duty to take reasonable precautions for the protection and safety of its passengers.
Finally, in arriving at our conclusion, we are mindful of the philosophy expressed by eminent jurists that “the time has come to remove from our law all the remaining vestiges of governmental immunity” (dissenting opinion of DESMOND, Ch. J., in Motyka v. City of Amsterdam, 15 N Y 2d 134, 141, supra) and that, to the extent an injury results from a failure to allo-
Perhaps the time will come when these minority views will be transformed into the law of this State. However, such is not the present state of the law. In Steitz v. City of Beacon (295 N. Y. 51, 55, supra) the court said, “An intention to impose upon the city the crushing burden of such an obligation should not be imputed to the Legislature in the absence of language clearly designed to have that effect.” More recently, the Court of Appeals stated: “The amount of protection that may be provided is limited by the resources of the community and by a considered legislative-executive decision as to how those resources may be deployed. For the courts to proclaim a new and general duty of protection in the law of tort, even to those who may be particular seekers of protection based on specific hazards, could and would inevitably determine how the limited police resources of the community should be allocated and without predictable limits. * * * Before such extension of responsibilities should be dictated by the indirect imposition of tort liabilities, there should be a legislative determination that that should be the scope of public responsibility * * *. To foist a presumed cure for these problems [increased crime] by judicial innovation of a new kind of liability in tort would be foolhardy indeed and an assumption of judicial wisdom and power not possessed by the courts. * * * For all of these reasons, there is no warrant in judicial tradition or in the proper allocation of the powers of government for the courts, in the absence of legislation, to carve out an area of tort liability for police protection to members of the public” (Riss v. City of New York, 22 N Y 2d 579, 581-583, supra [bracketed matter supplied]).
Accordingly, while we share the trial court‘s concern over this unfortunate incident and we recognize the sympathetic perspective in which this case should be viewed, we are constrained to hold that the result reached below cannot be sustained under the law as presently constituted.
GULOTTA, J. (dissenting). I would affirm the judgment in favor of the plaintiff but drastically reduce the amounts awarded to a level consonant with our rules controlling damages in actions of this kind. I agree with the finding by the trial court that the proof of negligence was overwhelming. The security measures adopted were meaningless in view of the known dangers with which they were intended to cope. When coupled with the known fact that the very existence of the appellant‘s private police force would greatly curtail, if not entirely eliminate, patrolling by the New York City public police force, the appellant‘s measures were completely inadequate to meet a standard of ordinary prudence. I agree that this is not a Schuster type of case and that it does not meet the special standards required by Motyka v. City of Amsterdam (15 N Y 2d 134) vis-à-vis the City of New York, were this action founded upon a failure by the City Police Department. However, in my opinion, the Housing Authority exercises a proprietary function in the operation of its housing project and in its corporate capacity it is subject to the same tests of liability that a private landlord would be who undertook to provide security for its tenants and then abysmally failed to do so. The question of what is proprietary and what is governmental is a clouded one, often not easily determined. Warren‘s Negligence (vol. 2C, pp. 214-215) states: “[c] -Proprietary Functions. Functions considered proprietary in nature include illustratively, maintenance of parks and playgrounds, including zoos and swimming pools; ownership and maintenance of land, buildings and structures not intended for use for purely governmental purposes; operation and maintenance of parking lots; maintenance of water works and water supply systems for the purpose of furnishing water to residents of the municipality, as distinguished from a water system maintained for the purpose of protecting the city against loss by fire; construction and maintenance of sewers and sewerage systems, except in case of failure to provide any sewers at all for fire protection; and operation and maintenance of transportation systems” (emphasis added). New York Jurisprudence (39 N. Y. Jur., Municipal Corporations, § 186) is to the same effect. As to the legal consequences of this, that work (40 N. Y. Jur., Municipal Corporations, § 971, p. 219) states: “Insofar, however, as a munici-
It is true that the courts have engrafted on the waiver of immunity an exception for what is called a pure governmental function, i.e., police and fire protection (2C Warren‘s Negligence, p. 223; 40 N. Y. Jur., Municipal Corporations, § 972). However, this also has its limitations. (See Dunham v. Village of Canisteo, 303 N. Y. 498; Koeppe v. City of Hudson, 276 App. Div. 443; and Bernardine v. City of New York, 294 N. Y. 361, where municipalities were held liable for the negligence of the public police department.)
I can discern no compelling public policy reasons to extend by implication this broad cloak of immunity to the private police force set up by the Housing Authority. As to the circumstance that it was done pursuant to law, it could not have been established without authorization of law and the fact that it was so authorized by statute does not equate it to the public police force of the city. Actually I see it as no different from a case where a private landlord might hire a private detective agency to patrol his housing development.
It is well settled that when a person voluntarily assumes the performance of a duty he is required to perform it carefully although he could have avoided all liability by never having undertaken the task initially (41 N. Y. Jur., Negligence, § 22).
We have an almost exact analogy to our case in Amoruso v. New York City Tr. Auth. (12 A D 2d 11), where the First Department applied the rules of ordinary negligence to a case involving the alleged dereliction of the transit police force maintained by the defendant public Transit Authority under the authority of subdivision 16 of section 1204 of the Public Authorities Law. That law very closely parallels subdivision 5 of section 402 of the
The circumstance that is important is not the nature of the act itself, but who is performing it. Anyone can put out a fire, but it is not a governmental function unless it is the fire department which is doing it. For instance, were this appellant to allow its fire fighting equipment in the building to remain out of order and unusable and damage resulted therefrom, I believe it would have to answer therefor, albeit fire fighting, when performed by a city fire department, is a pure governmental function also.
HOPKINS, MARTUSCELLO and LATHAM, JJ., concur with RABIN, P. J.; GULOTTA, J., dissents and votes to modify the judgment by reducing the amounts of the recovery awarded to plaintiff and to affirm the judgment as so modified, with an opinion.
Judgment of the Supreme Court, Kings County, entered June 19, 1970, reversed, on the law, without costs, and complaint dismissed. The findings of fact below have not been affirmed.