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Crosland v. New York City Transit Authority

Court of Appeals of the State of New York
Sep 11, 1986
68 N.Y.2d 165 (N.Y. 1986)

Summary

treating public transit authority at a "publicly owned common carrier"

Summary of this case from VIA Metro. Transit v. Meck

Opinion

Argued May 29, 1986

Decided September 11, 1986

Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Gerald Adler, J.

Lawrence Heisler, William E. Rosa, John A. Murray and C. Frances Rush for appellant.

Daniel R. Seidel for respondent.


The question presented is whether a public carrier whose employees allegedly stood by and did nothing while one of its passengers was beaten to death by hoodlums should be immune from all civil liability. We hold that it should not, and thus affirm the order appealed from and answer the question certified in the affirmative.

Amplified by affidavits and exhibits in the record, the complaint alleged in pertinent part that after attending a talent show at the High School of Music and Art, at which they were students, Steven Crosland, Jr., and several friends boarded the Independent subway at 135th Street. At 125th Street, they left the local train to change to an express on which to continue their trip downtown. At approximately 11:45 P.M., a group of hoodlums, armed with baseball bats, golf clubs, wooden clubs, tire irons, and chains, jumped the turnstiles at the 125th Street station and savagely attacked the students. Steven later died from wounds he sustained while being beaten over the head as he tried to escape from the platform by climbing a flight of stairs.

There were no police in the station. Steven's friends claimed there had almost always been officers in that station in the past. Allegedly, several track workers witnessed the incident and did nothing to summon aid. As the attack progressed, the complaint also stated, at least two trains, whose personnel were able to observe the attack, passed through the station, and these employees also did nothing.

Recovery was sought against the Transit Authority on three separate theories: that the defendant breached its special duty of care to the decedent because it failed to maintain "around-the-clock police presence" at the 125th Street station though it knew that station was the site of previous youth gang attacks on Music and Art students; that the defendant's employees breached a duty to Steven by failing to "take every precaution to prevent * * * injuries to persons", as required by the Authority's rule 85; and that defendant failed to meet the standard of care owed by common carriers to their passengers.

Causes of action were also asserted against the City of New York, Board of Education of the City of New York, and the Police Department of the City of New York. Special Term dismissed as to those parties and plaintiff did not cross-appeal to the Appellate Division from that part of its order. Thus, all references to "defendant" will apply only to the New York City Transit Authority.

Before answering the complaint, the Authority moved "for an Order pursuant to CPLR 3212 granting summary judgment dismissing this action". The Authority took no issue with the factual allegations of the complaint, which it characterized as charging "defendants for failing to take adequate steps to police the site of the attack and thus prevent the assault on decedent". The Authority urged that this court's decision in Weiner v Metropolitan Transp. Auth. ( 55 N.Y.2d 175) therefore mandated dismissal. Special Term denied the motion. The Appellate Division affirmed and granted the Authority's motion for leave to appeal, certifying to us the question whether its order was properly made.

In essence, the Authority's motion was one to dismiss for failure to state a claim, because issue had not been joined when it was made (CPLR 3212 [a]). In any event, this court must view the facts in a light most favorable to the plaintiff on appeal from an order affirming the denial of a motion by the defendant for summary judgment dismissing the complaint (Patrolmen's Benevolent Assn. v City of New York, 27 N.Y.2d 410, 415), as it must on appeal from an order affirming the denial of preanswer motion.

The Appellate Division correctly concluded that the defendant owed Steven no special duty, for lack of the element of "some direct contact between agents of the [defendant] and the injured party" (Sorichetti v City of New York, 65 N.Y.2d 461, 469), and that liability cannot be based upon the alleged breach of Transit Authority rule 85, which, as in the portion quoted above, imposed a duty higher than the Authority actually owes, i.e., to exercise "ordinary care commensurate with the existing circumstances" (Thomas v Central Greyhound Lines, 6 A.D.2d 649, 652). Indeed, as the Appellate Division noted (110 A.D.2d, at p 156), the rule would be inadmissible at trial for the same reason (see, Abady v Pennsylvania R.R. Co., 6 A.D.2d 803, affd 6 N.Y.2d 757, rearg denied 6 N.Y.2d 882).

This court has held that the allocation of police resources implicates a governmental function for which a publicly owned carrier cannot be held liable, even though a private carrier could be held liable for a similar failure to allocate security personnel if that failure proximately resulted in a patron's sustaining injury at the hand of a third party (Weiner v Metropolitan Transp. Auth., 55 N.Y.2d 175, supra). In the two cases decided under the Weiner caption, it must be stressed, the plaintiffs were attacked at stations where no police were present, and they argued, without success, that police should have been put there because of prior incidents at the stations. To the extent the complaint in the present action alleges a failure to properly allocate police resources, therefore, it too must fail.

Weiner did not, however, absolve publicly owned common carriers from liability for assaults on their passengers by third parties in all cases. Rather, the court noted, "[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" (Weiner v Metropolitan Transp. Auth., 55 N.Y.2d 175, 182, supra). Indeed, we have recognized categories of activity rendering a municipality liable (Miller v State of New York, 62 N.Y.2d 506; Riss v City of New York, 22 N.Y.2d 579).

Ammirati v New York City Tr. Auth. ( 117 Misc.2d 212, 217), to the extent it misapplies the Weiner test, is disapproved.

The Authority, though conceding that it can be held liable for "ordinary" negligence, such as the failure to maintain its premises, argues that all acts of its employees are governmental and therefore will not result in liability, relying on Public Authorities Law § 1202 (2), which provides in part that the Authority, in carrying out its corporate purpose, "shall be regarded as performing a governmental function". However, as we made clear in Weiner v Metropolitan Transp. Auth. ( 55 N.Y.2d 175, 189, supra), that legislative declaration was not meant to abrogate the separate statutory provision that the Authority is responsible for the negligence of its employees in the operation of the subway system (Public Authorities Law § 1212). Indeed, the cases invoking section 1202 suggest its purpose was to insure that the Authority's workers are covered by the Taylor Law, not that it should escape liability for their negligence (see, e.g., New York City Tr. Auth. v Loos, 2 Misc.2d 733, affd 3 A.D.2d 740; cf. Matter of Subway-Surface Supervisors Assn. v New York City Tr. Auth., 44 N.Y.2d 101, 111).

Whether any act or failure to act of a Transit Authority employee alleged in the complaint can be the basis for an actionable claim against the Authority depends upon whether it is within or without the boundaries of the policy-based governmental immunity established in Weiner v Metropolitan Transp. Auth. ( 55 N.Y.2d 175, supra). Because the complaint alleges that an employee seeing the injury being inflicted unreasonably failed to summon aid although he could have done so without risk to himself, we hold such failure to act beyond the boundary of the Weiner immunity. Watching someone being beaten from a vantage point offering both safety and the means to summon help without danger is within the narrow range of circumstances which could be found to be actionable (cf. Putnam v Broadway Seventh Ave. R.R. Co., 55 N.Y. 108, 116; Scalise v City of New York, 3 N.Y.2d 951).

That affirmance in this case might expose the Authority to liability in an amount it would find burdensome, a consideration we expressly rejected in Schuster v City of New York ( 5 N.Y.2d 75, 80) and implicitly rejected in Sorichetti v City of New York ( 65 N.Y.2d 461, supra), is not dispositive in any event. Against it must be balanced other policies. Two of those, compensation for the victim and general deterrence (1 Street, Foundations of Legal Liability, at 477-478; Prosser and Keeton, Torts § 4 [5th ed]) are directly implicated in the complaint's allegations: the undisputed loss of plaintiff's son, and a public authority the management of which has failed to insure that its employees observe not only its own regulations, but also common standards of behavior.

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

Chief Judge WACHTLER and Judges MEYER, SIMONS, KAYE, ALEXANDER, TITONE and HANCOCK, JR., concur in Per Curiam opinion.

Order affirmed, etc.


Summaries of

Crosland v. New York City Transit Authority

Court of Appeals of the State of New York
Sep 11, 1986
68 N.Y.2d 165 (N.Y. 1986)

treating public transit authority at a "publicly owned common carrier"

Summary of this case from VIA Metro. Transit v. Meck

In Crosland a group of teens beat to death a student from the High School of Music at a train station after a late night concert.

Summary of this case from Lieberman v. Port Authority

In Crosland v. New York City Tr. Auth., 68 N.Y.2d 165, 506 N.Y.S.2d 670, 498 N.E.2d 143 [1986], the Court of Appeals held that the Transit Authority could be held liable for the negligent failure of its employees to summon aid as they watched a gang of thugs fatally assault a passenger.

Summary of this case from San Filippo v. N.Y.C. Transit Auth.

watching someone being beaten from a vantage point offering both safety and the means to summon help without danger is within the narrow range of circumstances which are actionable

Summary of this case from Shaffer v. Wells Fargo Guard Services

In Crosland, the Appellate Division noted that claimant and several classmates had walked to a nearby subway station between 8:00 and 11:00 p.m. following a concert in Manhattan.

Summary of this case from Barnett v. City Univ. of N.Y.

In Crosland, the Court of Appeals affirmed the lower court's denial of the Transit Authorities' motion for summary judgment on the grounds that the failure of defendant's subway system employees to summon help while watching from a position of safety a passenger being beaten to death, was beyond the boundary of governmental immunity.

Summary of this case from Barnett v. City Univ. of N.Y.

In Crosland, there were allegations that students in the area were being harassed by area youth gangs; that there were no token booth clerks in their assigned booths as they had abandoned their posts; that there were employees working on the tracks in view of the subway platform who ignored the attack; that another token booth employee in a far-off booth ignored the situation; and that two express trains entered, stopped at and departed from the station before the attack was reported (Id at 149-151).

Summary of this case from Barnett v. City Univ. of N.Y.

In Crossland, a student was brutally beaten to death by a gang on a subway platform while Transit Authority employees stood by and did nothing to summon aid.

Summary of this case from Murphy v. New York City Tr. Auth.

In Crosland v. New York City Tr. Auth. (68 NY2d 165), the Court of Appeals looked again at Weiner and clarified that " Weiner did not... absolve publicly owned common carriers from liability for assaults on their passengers by third parties in all cases."

Summary of this case from In Matter of World Trade Ctr. Bombing Litig

In Crosland v New York City Tr. Auth. (68 NY2d 165 [1986]), the Court of Appeals looked again at Weiner and clarified that "Weiner did not... absolve publicly owned common carriers from liability for assaults on their passengers by third parties in all cases."

Summary of this case from WORLD TRADE CTR. BOMBING

In Crosland v. New York City Transit Auth. (68 N.Y.2d 165), the Court of Appeals looked again at Weiner and clarified that " Weiner did not * * * absolve publicly owned common carriers from liability for assaults on their passengers by third parties in all cases."

Summary of this case from In the Matter of World Trade Ctr. Bombing Litig

In Crosland v. New York City Transit Authority, supra, 506 N.Y.S.2d 670, 498 N.E.2d 143, the issue was whether a public carrier should be immune from civil liability when its employees allegedly stood by and did nothing while one of its passengers was beaten to death in the subway station.

Summary of this case from Lieberman v. Port Authority
Case details for

Crosland v. New York City Transit Authority

Case Details

Full title:THELMA CROSLAND, Individually and as Administratrix of the Estate of…

Court:Court of Appeals of the State of New York

Date published: Sep 11, 1986

Citations

68 N.Y.2d 165 (N.Y. 1986)
506 N.Y.S.2d 670
498 N.E.2d 143

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