In Clinger v New York City Transit Authority (85 NY2d 957 ), we rejected yet another plaintiff's attempt to cast a municipality's purported negligence as proprietary, when the gravamen of the complaint was that the City of New York failed to prevent a criminal attack from taking place inside a subway tunnel.Summary of this case from Turturro v. City of N.Y.
Decided May 4, 1995
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Alfred Toker, J.
Albert C. Cosenza, New York City (Steve S. Efron of counsel), for appellant.
Fried, Frank, Harris, Shriver Jacobson, New York City (Anthony E. Satula, Jr., and Jeffrey Schreiber of counsel), for respondent.
The order of the Appellate Division should be reversed, defendant's motion for summary judgment granted, the complaint dismissed and the certified question answered in the negative.
On March 20, 1991, plaintiff was attacked as she walked at rush hour through an isolated and little-used subway tunnel. At the time of this incident, the tunnel was undergoing renovations, and construction materials had been deposited at various locations within the tunnel. Plaintiff's assailant dragged her behind a large metal plate which had been temporarily positioned against the tunnel wall, where she was beaten, raped and robbed. The tunnel had been the site of numerous violent felonies in the year preceding this attack, including two previous rapes, and eight months before the attack the local community board had recommended to defendant Authority that the tunnel be closed. Plaintiff sought to recover damages from defendant Authority, asserting that defendant had been negligent (1) in storing the construction materials in such a way as to create a dangerous condition that permitted her to be assaulted, and (2) in failing to act on the recommendation to close the tunnel, given its extensive history of criminal activity.
Whether the Authority is shielded from liability depends on whether in this instance it acted in a governmental or a proprietary role (see, Weiner v Metropolitan Transp. Auth., 55 N.Y.2d 175). In Miller v State of New York ( 62 N.Y.2d 506, 511-512) we stated that the dual role of a governmental or quasi-governmental entity creates "a continuum of responsibility" extending from completely proprietary acts of simple maintenance and repair to completely governmental functions, like "the maintenance of general police and fire protection." Plaintiff's claim, in essence, is that a proprietary act (the location of the metal plate) intersected with a governmental act (the failure either to close the tunnel or to properly police it), to create the conditions under which she was attacked. Defendant's act was so overwhelmingly governmental in nature, however, as to place the source of its asserted liability well toward the "governmental function" terminus of the Miller continuum (see, Bonner v City of New York, 73 N.Y.2d 930; Rivera v New York City Tr. Auth., 184 A.D.2d 417). Accordingly, defendant is immune from liability.
Moreover, plaintiff's claim is independently, and fatally, flawed by her inability to establish that the location of the metal plate, rather than the general lack of security in the tunnel, was the proximate cause of her injuries. Two previous rapes, and an incident of sexual abuse, had occurred in the tunnel prior to this attack, all in the absence of any negligently placed construction materials. Plaintiff's claim is so speculative on the issue of causation as to mandate dismissal as a matter of law (see, Matter of Crichlow v New York City Tr. Auth., 184 A.D.2d 395; Khodai v New York City Tr. Auth., 176 A.D.2d 524).
Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order reversed, with costs, defendant's motion for summary judgment granted, complaint dismissed and certified question answered in the negative, in a memorandum.