134 A.D.2d 583 | N.Y. App. Div. | 1987
In a negligence action to recover damages for personal injuries, etc. resulting from a sexual assault in a public school facility, the defendants appeal from a judgment of the Supreme Court, Queens County (Lerner, J.), dated October 17, 1986, which is in favor of the plaintiff Marilyn S. in the principal sum of $1,500,000 and in favor of the plaintiff Jeffrey S. in the principal sum of $50,000 and against them, upon a jury verdict.
Ordered that the judgment is reversed, on the law, without costs or disbursements, and the complaint is dismissed.
The plaintiff Marilyn S. a school teacher at a New York City high school, was sexually assaulted in the faculty ladies’ room by a male intruder on December 7, 1981. The room was ordinarily kept locked and the plaintiff entered it by using her own key. The assailant was never apprehended and there was no evidence as to how he had entered the second-story windowless room. At trial, the plaintiffs sought to establish that Marilyn S.’s injuries had been proximately caused by the defendants’ negligent failure, in their proprietary capacity as
While it is well established that a public entity may not escape liability for negligent acts which it performs in a proprietary capacity and which are a proximate cause of an injury which was sustained as the result of a foreseeable act by a third party (Nola v New York City Tr. Auth., 115 AD2d 461; Crosland v New York City Tr. Auth., 110 AD2d 148, affd 68 NY2d 165), where a public entity acts both in a governmental and in a proprietary capacity, "[i]t is the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred which governs liability, not whether the agency involved is engaged generally in proprietary activity” (see, Weiner v Metropolitan Transp. Auth., 55 NY2d 175, 182). This is so because a "governmental entity’s conduct may fall along a continuum of responsibility to individuals and society deriving from its governmental and proprietary functions” (see, Miller v State of New York, 62 NY2d 506, 511-512).
In the instant case, the negligence alleged does not stem from the defendants’ failure to fulfill a proprietary duty, as urged by the plaintiffs, but rather, derives from the defendants’ exercise of their governmental functions (see, Weinstein v Board of Educ., 127 AD2d 655). It is well established that