No. 02 Civ. 4029 (JGK) (JCF).
February 10, 2005
OPINION AND ORDER
This diversity action arises out of an accident in which the plaintiff, Erika Hecht, allegedly fell on a patch of ice in the vicinity of East 63rd Street and Lexington Avenue, New York, New York. The icy area was allegedly formed as a result of water dripping from a balcony of an apartment building located at 139 East 63rd Street. At the time of the alleged accident, New York City firefighters were in the vicinity to investigate and stop the water leak. The defendant, the City of New York (the "City"), now moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the ground that the plaintiff's claims are barred because, with respect to the accident in question, the City owed no legal duty to the plaintiff, and as a matter of law, City firefighters had no duty to protect the plaintiff from that accident.
I.The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Gallo v. Prudential Residential Servs. Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). "The trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224. The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts which are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its burden, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The nonmoving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993). See also Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998) (collecting cases); Estevez-Yalcin v. Children's Village, 331 F. Supp. 2d 170, 171 (S.D.N.Y. 2004).
Jurisdiction for this action is based on diversity of citizenship jurisdiction pursuant to 28 U.S.C. § 1332(a).
The following facts are undisputed unless otherwise noted. On the evening of January 1, 2002, at approximately 7 p.m., the New York City Fire Department dispatcher notified Ladder Company 16 to respond to a water leak at 139 East 63rd Street. (See Tr. of Deposition of James Mahon ("Mahon Dep."), dated Feb. 11, 2004, at 10, 15, 17, 32, 35, attached as Ex. E to Affirmation of Lori A. Manning dated June 30, 2004.) Members of Ladder Company 16 arrived on the scene shortly thereafter, and parked their fire truck on the northeast corner of Lexington Avenue and East 63rd Street. (See id. at 39.) The firefighters determined that there was no water leak from the fire hydrant on the corner of Lexington Avenue and East 63rd Street. (See id. at 40, 42; Def.'s Rule 56.1 Stmt. ¶ 5; Pl.'s Answer to Def.'s Rule 56.1 Stmt. ¶ 5.)
The background to the case is described in more detail in the Court's prior Opinion and Order, Hecht v. City of New York, 217 F.R.D. 148, 149 (S.D.N.Y. 2003). The prior Opinion and Order granted the plaintiff's motion pursuant to Federal Rule of Civil Procedure 42(b) to proceed solely against the City and 139 East 63rd Street resident Charles Greenebaum, and to sever the action against the property owners, 139 East 63rd Street, Inc., and the property managers, Brown Harris Stevens, Residential Management, LLC, d/b/a Brown Harris Stevens; and Vanderbilt Properties, LLC (the "Building Defendants") because of the rehabilitation proceedings pending against the insurer of the Building Defendants. See Hecht, 217 F.R.D. at 151-52. There is apparently no longer a basis for severance and the case is proceeding against the Building Defendants.
According to the Deposition of Firefighter James Mahon, someone noticed a leak coming from one of the terraces of nearby 139 East 63rd.Street. (Mahon Dep. at 43.) When Firefighter Mahon looked up at the apartment building, he observed a "thin steady stream" of water falling from the building's terrace to the sidewalk (id. at 44-45), but did not notice any ice on the sidewalk at that time. (Id. at 47.) The firefighters then went inside the apartment building at 139 East 63rd Street to further investigate the leak. (Id. at 48-49.)
The firefighters eventually entered an apartment where they discovered that the source of the leak was a water hose on the apartment's terrace. (See id. at 50-56.) The firefighters turned off the water source to stop the leak. (Id. at 56.) Firefighter Mahon estimates that the firefighters were inside the apartment building for approximately fifteen to twenty minutes. (Id. at 95.)
According to Mahon, he first noticed the plaintiff as the firefighters exited the lobby of 139 East 63rd Street. (Id. at 63.) At that point, Mahon allegedly saw Hecht "crouched over at the waist" (id. at 64) at the corner of Lexington Avenue and East 63rd Street. (Id. at 63.) A man who was with Hecht at the time of the accident informed the firefighters that Hecht had just fallen. (Id. at 63-65.) It was at this time that Mahon apparently noticed that the area of water on the street had grown and turned to ice. (Id. at 65, 121-22.)
Hecht alleges that while she was walking in the vicinity of 139 East 63rd Street, she slipped and fell on a patch of ice, hitting the ground with her left shoulder. (Compl. ¶¶ 17-18, 20; see also Tr. of Deposition of Erika Hecht ("Hecht Dep."), dated Jan. 8, 2004, at 25, attached as Ex. D to Affirmation of Lori A. Manning dated June 30, 2004.) The plaintiff did not notice the icy condition existing in the vicinity of Lexington Avenue and East 63rd Street until after her fall. (See Hecht Dep. at 23-24, 29.) Nor could she describe the size or shape of the icy area. (See id. at 29-30; 55-56.) However, the plaintiff maintains that, due to the cold weather, the ice must have been present when the firefighters arrived at the intersection. (See Pl.'s Answer to Def.'s Rule 56.1 Stmt. ¶ 7.) Moreover, the plaintiff alleges that she noticed that a fire truck, and therefore, firefighters were present as she approached the intersection of Lexington Avenue and East 63rd Street. (See Pl.'s Answer to Def.'s Rule 56.1 Stmt. ¶¶ 14-15.)
Soon after her fall, the plaintiff noticed two firefighters who came to her assistance. (See Hecht Dep. at 31-34, 36.) The first firefighter attempted to help the plaintiff off the ground, but he, too, slipped and fell down. (See id. at 31-32.) A second firefighter then helped the plaintiff and the other firefighter off the ground. (Id. at 37-38.) One of the firemen asked the plaintiff if he could call an ambulance. (Hecht Dep. at 40.) The plaintiff responded, "I don't know," and indicated that she wished to sit for a few minutes. (Id.) After leaning against a wall for a few minutes, the plaintiff then responded to a second offer by a firefighter to call an ambulance by saying, "I don't think so." (Id. at 41-42.) The plaintiff then walked home with her companion. (See id. at 42.)
Upon reaching her apartment, Hecht realized that she required medical attention. (See id. at 72-74.) Hecht took a taxi to the Sloan Kettering emergency room where she received treatment for her injuries. (See id. at 74-78.) The plaintiff alleges that, as a result of the accident, she suffered injuries including a broken left shoulder, a fractured left arm, and the aggravation of a prior cervical spine condition. (See Compl. ¶ 22.) Hecht required surgery, pain medication, and physical therapy to treat these injuries. (See id.)
The plaintiff alleges that defendant Charles Greenebaum, the resident of the apartment from which the water allegedly leaked, left the water supply to his terrace garden hose on in freezing temperatures, and that as a result the nozzle of the hose broke, water leaked off the terrace, and ice formed on the sidewalk and street below. (See Compl. ¶¶ 13, 19.) Hecht alleges that defendant Greenebaum, together with the property owners, 139 East 63rd Street, Inc., and the property managers, Brown Harris Stevens, Residential Management, LLC, d/b/a Brown Harris Stevens; and Vanderbilt Properties, LLC (the "Building Defendants"), were "negligent in permitting water to pour onto the street and sidewalk below the premises; in permitting a sheet of ice to form which caused plaintiff to fall; [and] in failing to properly clear away ice from the vicinity. . . ." (Compl. ¶¶ 5, 10, 12, 13, 31.)
Defendant Greenebaum was incorrectly named in the complaint as "Greenbaum."
More significantly for purposes of this motion, the plaintiff alleges that all of the defendants, including the City, and in particular the New York City Fire Department, were negligent in permitting a sheet of ice to form, in failing to properly warn of the hazard, and in not barricading or sanding the icy area in the vicinity of 139 East 63rd Street. (See Compl. ¶¶ 21, 31.)
The defendant now moves for summary judgment on the ground that the City does not owe the plaintiff a legal duty under New York State law. Under New York law, which the parties agree applies to this action, a plaintiff claiming negligence "must show that the defendant owed the plaintiff a cognizable duty of care, that the defendant breached that duty, and that the plaintiff suffered damages as a proximate result of that breach."King v. Crossland Sav. Bank, 111 F.3d 251, 259 (2d Cir. 1997) (citations omitted). The City's arguments correspond to the first element of tort liability, the duty of care. The City argues that absent a special relationship to the plaintiff, it owed her no legal duty of care with respect to the accident in this case, and that there was no special relationship in this case.
The parties agree that New York contract and tort law apply, and the Court can apply New York law in accordance with that agreement. See Hannex Corporation v. GMI, Inc., 140 F.3d 194, 203 n. 7 (2d Cir. 1998); Bhandari v. The Trustees of Columbia University, No. 00 Civ. 1753, 2000 WL 310344, at *5 n. 1 (S.D.N.Y. Mar. 27, 2000).
It is well established that a municipality may not be held liable for injuries resulting from negligence in the performance of a governmental function, unless the plaintiff can establish the existence of a special relationship between the injured party and the public entity. See Kircher v. City of Jamestown, 543 N.E.2d 443, 445 (N.Y. 1989); Bonner v. City of New York, 536 N.E.2d 1147, 1148 (N.Y. 1989); Cuffy v. City of New York, 505 N.E.2d 937, 939-40 (N.Y. 1987); Howell v. Massapequa Fire District, 760 N.Y.S.2d 679, 680 (App.Div. 2003); Apostolakis v. Centereach Fire District, 752 N.Y.S.2d 691, 692 (App.Div. 2002); Figueroa v. New York City Tr. Auth., 624 N.Y.S.2d 260, 261 (App.Div. 1995). A municipality's duty to provide police and fire protection is ordinarily one owed to the public at large and not to any particular individual or class of individuals. See Cuffy, 505 N.E.2d at 940 (citing H.R. Moch Co. v. Rensselaer Water Co., 159 N.E. 896 (N.Y. 1928) (Cardozo, J.)). The provision of police and fire protection by a municipality "has long been regarded as a resource-allocating function that is better left to the discretion of the policy makers." Id. (citation omitted). Consequently, New York courts have generally declined to hold municipalities subject to tort liability for their failure to furnish police and fire protection to individual citizens. Id.; Balsam v. Delma Engineering Corp., 688 N.E.2d 487, 488 (N.Y. 1997) ("[A] municipality bears no liability for the negligent performance by its agents of governmental functions, absent the existence of a special relationship between the injured part and the municipality" (citations omitted).)See also Messineo v. Amsterdam, 215 N.E.2d 163 (N.Y. 1966) (no liability in provision of fire protection); Tuthill v. Rochester, 301 N.Y.S.2d 648 (App.Div. 1969), aff'd 261 N.E.2d 267 (N.Y. 1970) (municipality not liable for errors in course of responding to fire).
In a narrow class of cases, the New York Court of Appeals has recognized an exception to the general principle of municipal immunity and has upheld tort claims based upon a "special relationship" between the municipality and the claimant. Cuffy, 505 N.E.2d at 940 (citations omitted). This special relationship exception was designed to protect municipalities in cases where a plaintiff alleges, as Hecht does here, that the municipality "improvidently allocated its resources," including cases "where a plaintiff challenges the municipality's failure to intervene more actively or effectively in a dangerous situation." Ohdan v. City of New York, 706 N.Y.S.2d 419, 425 (App.Div. 2000) (Rosenberger, J.P., dissenting) (citation omitted). Absent a special duty or relationship to the plaintiff, "courts generally refuse to second-guess the governmental exercise of professional judgment." Id.; see also Cuffy, 505 N.E.2d at 940.
In Balsam, for example, the New York Court of Appeals found that there was no special relationship to a plaintiff who alleged that the police department had breached a "proprietary duty" in failing to protect the plaintiff from an icy roadway. In responding to the ice hazard, the court noted that the police department was instead performing a "governmental function" upon which tort liability could not be based. Balsam, 688 N.E.2d at 488-89. The Court of Appeals explained:
Plaintiff's argument places before us the dichotomy between actions undertaken by municipal agents in a governmental capacity for which tort immunity is conferred and proprietary functions that subject the municipality to ordinary tort liability (citation omitted). The characterization of a municipal act as "proprietary" or "governmental" does not depend simply on "whether the agency involved is . . . in control of the location in which the injury occurred" (citation omitted). To determine where in the continuum of activity between proprietary and governmental responsibilities the challenged public action falls, we must examine "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" (citation and internal quotation marks omitted).Id. at 488.
Much like this case, where Hecht alleges a failure of the City to clear or warn of the ice on the street, the plaintiff inBalsam had "specifically hinge[d] her negligence action on the responding police officers' failure to close the roadway, redirect traffic or place warning flares or cones in the area of the icy condition prior to her accident." Id. The Balsam court noted, however, that traffic regulation is a "classic example of a governmental function undertaken for the protection and safety of the public pursuant to the general police powers," and that the fact that "the function has traditionally been assumed by police rather than by private actors is a tell-tale sign that the conduct is not proprietary in nature." Id. at 489 (citation omitted). Moreover, because the plaintiff's claim in Balsam raised "the specter that the jury would assess the reasonableness of the police response to this ice hazard, and thereby impermissibly second-guess a considered legislative-executive decision as to how those resources may be deployed," the Court found that the City was not liable to the plaintiff in tort. Id. (citation and internal quotation marks omitted).
In this case, the plaintiff alleges that City firefighters were negligent in their response to the water leak on the street. Specifically, the plaintiff argues that City firefighters did not respond adequately to the ice hazard. The plaintiff contends that any ice on the street and sidewalk could have been removed by the Fire Department using rock salt, ice choppers, picks, axes, or similar tools. (See Pl.'s Rule 56.1 Counter-Stmt. ¶¶ 6-7.) Moreover, the plaintiff alleges that she heard one firefighter say, "Let's put up a barricade," after she fell. (See id. ¶ 8; Hecht Dep. at 44.) The plaintiff argues that this statement was an admission by the firefighter that a barricade or other warning sign should have been erected before the accident.
However, the firefighters' response was undertaken for the general safety and protection of the public rather than for the protection of this particular plaintiff. In investigating and terminating this leak, the Fire Department was therefore engaged in a governmental function in which the firefighters assumed no duties separate from those owed to the public generally. See Bishop v. Bostick, 529 N.Y.S.2d 116, 118 (App.Div. 1988) ("Since the Fire [Department's] act of arriving at the scene of what was then only a potential disaster constituted nothing more than the performance of a duty owed to the public generally, that act alone is insufficient to create a special duty to the respondents."). The plaintiff is therefore required to establish the existence of a special relationship between herself and the City before the municipality can be held liable for her injuries.
To establish the elements of a "special relationship," the plaintiff must prove: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking. Cuffy, 505 N.E.2d at 940 (citations omitted); Stata v. Waterford, 649 N.Y.S.2d 232, 234 (App.Div. 1996) (sufficient evidence of special relationship established in fire protection case requiring denial of summary judgment); Bishop, 529 N.Y.S.2d at 117-18 ("In order to successfully invoke the `special duty' exception . . ., a plaintiff must establish that, through affirmative acts, the municipality has lulled him or her into foregoing other available avenues of protection or that it has voluntarily assumed a duty separate from that which is owed to the public generally."). Though not expressly enumerated inCuffy as a fifth element, Cuffy nevertheless also requires the plaintiff to establish that her justifiable reliance is causally related to her injury. See Cuffy, 505 N.E.2d at 940;Hancock v. City of New York, 645 N.Y.S.2d 797, 798 (App.Div. 1996).
There is no evidence in the record from which any reasonable inference could be drawn that a special relationship existed in this case. First, there was no assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the injured plaintiff. The plaintiff never came into contact with any agent or employee of the City before the accident. (See Hecht Dep. at 30, 34-37.) Moreover, the City did not, by words or actions, assume any duty to act on the plaintiff's behalf. See, e.g., Nicolosi v. City of New York, 637 N.Y.S.2d 792 (App.Div. 1996).
Second, there was no knowledge on the part of the municipality's agents that inaction could lead to harm. The firefighters timely responded to complaints of a water leak originating from an unknown source in the vicinity of East 63rd Street and Lexington Avenue. Upon their arrival on the scene, the firefighters determined that the leak originated from one of the terraces of 139 East 63rd Street. The firefighters were attempting to stop the leak at the time of the plaintiff's fall.
Third, the plaintiff indicated that there was no form of direct contact between the municipality's agents and the plaintiff prior to the alleged accident, and there was nothing negligent with respect to the conduct of the firefighters after the alleged fall. According to the plaintiff, she "vaguely" noticed a fire truck prior to her fall. (See Hecht Dep. at 35.) She did not speak to any firefighters prior to the alleged accident. (Id. at 39.) The plaintiff noted that the only factor contributing to her fall was the ice on the sidewalk, and that no one directed her to walk into the area where she fell. (See id. at 22, 69.)
Fourth, there is no evidence in the record that the plaintiff justifiably relied on the City's affirmative undertaking of protection. The plaintiff was never offered any assurance of protection by the firefighters and there is no showing that the plaintiff relied on any promises or actions by the firefighters which were causally related to the slip and fall that allegedly resulted in the plaintiff's injury. Cuffy, 505 N.E.2d at 940.
The plaintiff argues that the line of "special relationship" cases is inapplicable to this case because the City can be liable to the plaintiff for failure to remove ice adequately, and to protect pedestrians from ice on the streets and sidewalks. (See Declaration of Elliot B. Pasik dated Sept. 15, 2004 ¶ 8.) The plaintiff argues that, as "the owner of all of the public sidewalks and roadways" (id. ¶ 7), the City has a duty to keep the sidewalks and roadways free of ice, citing Garricks v. City of New York, 801 N.E.2d 372 (N.Y. 2003), and the New York Pattern Jury Instruction 2:225A.
The plaintiff's reliance on Garricks is misplaced. InGarricks, the New York Court of Appeals dealt with the reasonableness of the City of New York's reliance on property owners to remove snow and ice from city sidewalks after a snowstorm, and the admissibility of the Administrative Code of the City of New York § 16-123, which imposes a duty on landowners to clear snow from sidewalks abutting their property. The Garricks court observed that evidence of the City's reliance on property owners to remove snow after a storm, along with evidence of the City's efforts to enforce the ordinance within a reasonable time, were relevant factors in determining whether the municipality breached its obligation to maintain sidewalks in a reasonably safe condition. See Garricks, 801 N.E.2d at 375. In this case, however, the issue is not whether the City's efforts to remove ice on the sidewalks and streets were reasonable, but whether City firefighters responded to the ice condition at the corner of East 63rd and Lexington Avenue in a proprietary or governmental capacity. As explained above, the firefighters in this case were engaged in a governmental function, precisely like the police officers who responded to the icy condition on the New York City street in Balsam, 688 N.E.2d at 488. The plaintiff has failed to establish that the City owed her a duty to protect her from injury because, as in Balsam, there is no evidence of a special relationship between the plaintiff and the City of New York.
As to accidents occurring on or after September 15, 2003, the New York City Administrative Code places the obligation to maintain and clear sidewalks upon certain abutting landowners, imposes liability on such landowners for injuries sustained by third persons for the failure to do so, and absolves the City of liability for injuries caused by the failure to maintain or clear sidewalks abutting certain privately owned real property. N.Y.C. Admin. Code § 7-210; Garricks, 801 N.E.2d at 374 n. 2.
In addition, the plaintiff concedes "[t]hat there was no snow or ice anywhere else on the ground in Manhattan, as a result of any weather condition, except at the subject location." (Pl.'s Rule 56.1 Counter-Stmt. ¶ 9.) Accordingly, this is not a case like Garricks, which concerned the reasonableness of the City's snow removal two days after a snowstorm. Rather, this matter concerns the City's response to a water leak and subsequent unusual icy condition on the street and sidewalk. Although the plaintiff argues that the City is in fact charged with the responsibility to maintain the property where the accident occurred, the act or omission out of which this injury is claimed to have arisen is the very same failure to clear a public way of ice that was litigated in Balsam. As the New York Court of Appeals instructed, in the "continuum of activity between proprietary and governmental responsibilities," the official response to this ice hazard "falls well within the immunized `governmental' realm of municipal responsibility."Balsam, 688 N.E.2d at 489.
In any event, the plaintiff has not submitted any evidence that would lead a trier of fact to conclude that the City's response to the ice condition in the vicinity of 139 East 63rd Street was unreasonable. There is no evidence that the City had prior notice of the ice condition such that, using reasonable care, the City should have corrected the icy condition but failed to do so.See, e.g., Valentine v. City of New York, 449 N.Y.S.2d 991 (App.Div. 1982), aff'd 443 N.E.2d 488 (N.Y. 1982); Candelier v. City of New York, 517 N.Y.S.2d 486 (App.Div. 1987). Nor has the plaintiff shown that the icy condition existed for an unreasonable amount of time. See Smith v. City of New York, 125 N.Y.S.2d 123 (App.Div. 1953) (per curiam),aff'd 122 N.E.2d 335 (N.Y. 1954).
The plaintiff's citation to New York Pattern Jury Instruction 2:225A is mistaken. That section deals with an instruction relating to an unsafe condition on public premises and ways where there is a local law requiring prior written notice. See 1B New York Pattern Jury Instructions — Civil PJI 2:225A (3d ed. 2005). More relevant is 1B New York Pattern Jury Instructions — Civil PJI 2:225D (3d ed. 2005), which relates to municipal liability for snow and ice conditions on public premises and ways. That instruction makes plain that a plaintiff must show that the municipality knew of the unusually dangerous condition or that the condition had existed for so long before the plaintiff fell that in the exercise of reasonable care the municipality should have known of it, and that there was enough time for the municipality, using reasonable methods and reasonable care, to have corrected the condition before the plaintiff fell but that it failed to do so. The plaintiff has not offered any evidence to carry these burdens.
Based on the record as a whole, and drawing all inferences in favor of the plaintiff, a reasonable jury could not conclude that the plaintiff has submitted sufficient evidence showing that the defendant had a special relationship to the plaintiff which imposed a legal duty on the City of New York to the plaintiff upon which tort liability can be grounded. Because there is no genuine issue of material fact regarding the plaintiff's failure to make out a prima facie case of negligence by the City of New York, summary judgment must be granted dismissing the complaint.
For the reasons explained above, the City of New York's motion for summary judgment dismissing the complaint against the City of New York is granted.