holding that the plaintiff could not establish a hazardous condition on the basis of a burnt-out streetlight merely because the affected roadway "is large and at times busy—a condition which exists at many city intersections"Summary of this case from Estate of Flygare v. Ogden City
Argued November 19, 1991
Decided December 23, 1991
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Hansel L. McGee, J.
Victor A. Kovner, Corporation Counsel (Stephen J. McGrath and Leonard Koerner of counsel), for appellant.
Martin S. Rothman, Daniel J. Friedman, Alan M. Friedman and Alyne I. Diamond for respondent.
Plaintiff was injured when struck by an automobile while crossing the Grand Concourse near its intersection with Field Place in The Bronx. It was dark at the time of the accident and a bulb in the nearest streetlight had burned out. At issue is plaintiff's right to damages from the City of New York based on the City's failure to maintain the streetlight by replacing the bulb.
Plaintiff sued the driver of the car that hit her, the City of New York and Acolyte Electric Corp., the company which had contracted with the City to maintain and repair streetlights. She alleged that the City was liable because it had breached its nondelegable duties to maintain the streetlights at or near the intersection in good working order and failed to maintain the streets and roadways in a safe condition. The City and Acolyte moved for summary judgment and the trial court granted their motions. The Appellate Division initially affirmed ( 157 A.D.2d 634) but on reargument it modified the order by denying the City's motion for summary judgment, reinstating the complaint against it, and remitting the matter to the trial court for further proceedings ( 164 A.D.2d 773). The appeal is before us by leave of the Appellate Division on a certified question. We now reverse. Plaintiff has established neither the City's legal duty to maintain streetlights nor that the street was defective or unsafe at the accident scene.
A municipality has a duty to maintain its streets in a reasonably safe condition (see, Lopes v Rostad, 45 N.Y.2d 617, 623; Oeters v City of New York, 270 N.Y. 364, 368; Kamnitzer v City of New York, 265 App. Div. 636, 639). Although authorized to install street lighting by General City Law § 20 (7), a municipality generally is required to do so only in certain situations where it is necessary to keep the street safe, i.e., where there is a defect or some unusual condition rendering the street unsafe to the traveling public (see, Griffin v Town of Harrison, 268 N.Y. 238, 241-242; Bauer v Town of Hempstead, 143 A.D.2d 793, 793-794; Andrews v City of Elmira, 128 App. Div. 699, 701; Schlicher v City of New York, 175 Misc. 696, 697, affd 264 App. Div. 763; 4B Warren, Negligence in the New York Courts § 67.09  [b], at 424 [4th ed]). The duty to maintain existing streetlights is similarly limited to those situations in which illumination is necessary to avoid dangerous and potentially hazardous conditions (see, Mastro v Maiorino, 174 A.D.2d 654).
In order to prevail, therefore, plaintiff had to show that the City permitted a dangerous or potentially hazardous condition to exist and cause injury (see, e.g., Bottalico v State of New York, 59 N.Y.2d 302, 305 [roadway shoulder maintained in a dangerous condition]; Barrett v City of Buffalo, 96 A.D.2d 709, 710 [jury question whether city created a dangerous condition by placing a cover on a water box with inadequate support]; Prager v Motor Vehicle Acc. Ind. Corp., 74 A.D.2d 844, 845, affd 53 N.Y.2d 854 [traffic light outage deemed a dangerous condition]; Meyer v State of New York, 51 A.D.2d 828, 829 ["malfunction reports" regarding traffic light placed State on notice of potentially hazardous condition]). Plaintiff's claim that a light bulb burned out was not, standing alone, sufficient to establish a cause of action: she was obliged to show that by failing to replace the bulb, the City created a dangerous condition on the Grand Concourse. The most that appears, however, is that the roadway near the intersection of Field Place is large and at times busy — a condition which exists at many city intersections. The mere outage of the streetlight did not render this reasonably safe street dangerous.
Although the City claims otherwise, plaintiff could have been entitled to damages from the resulting injuries had she proved the street was not reasonably safe without having to establish a "special relationship" between the plaintiff and the City (cf., Kircher v City of Jamestown, 74 N.Y.2d 251, 255; Cuffy v City of New York, 69 N.Y.2d 255, 260).
Accordingly, the order of the Appellate Division should be reversed, with costs, defendant City's motion for summary judgment granted, and the certified question answered in the negative.
I would affirm. I agree with the reasoning of the Appellate Division that "[b]y installing he streetlight in the first instance, the municipality voluntarily undertook to act on behalf of pedestrians such as plaintiff and induced their reasonable reliance on such undertaking (Kircher v City of Jamestown, [ 74 N.Y.2d 251]; see also, Cuffy v City of New York, 69 N.Y.2d 255). The issue here is thus not one of absence of street lighting, but the negligent maintenance of lighting already installed" ( 164 A.D.2d 773, 774-775). Although the City might not have had a duty to install the streetlights in question in the first instance (see, Schlicher v City of New York, 175 Misc. 696, 697, affd without opn 264 App. Div. 763), once the City had undertaken to install the streetlight, it was legally obligated to exercise due care in maintaining it (see, Allen v Town of Hempstead, 145 A.D.2d 588 [when a municipality undertakes to provide street lighting at a particular location, it may be held liable to a plaintiff who suffers injury due to a hazardous and dark condition created by a broken streetlight that is in close proximity to the site of the accident]; Moch Co. v Rensselaer Water Co., 247 N.Y. 160; see also, Unger v Village of Fayetteville, 175 A.D.2d 606 [liability of Village upheld on theory that maintenance of existing streetlights is a proprietary function]).
The majority's reasoning that the City has a duty to maintain installed streetlights only to the extent that the City has a duty to install them in the first instance, it seems to me, is erroneous. Our prior holdings have made clear that a municipality has a duty to act with reasonable care in the absence of a duty to act in the first instance, if the municipality voluntarily undertakes to act (see, Bottalico v State of New York, 59 N.Y.2d 302 [State has a duty to maintain roadway shoulder in reasonably safe condition once it has undertaken to provide a shoulder]; Florence v Goldberg, 44 N.Y.2d 189 [municipality which voluntarily undertook to provide crossing guards at intersections may be held liable for negligent performance of that duty, notwithstanding that, absent a voluntary assumption of the duty, none would have existed]; Moch Co. v Rensselaer Water Co., 247 N.Y. 160, 167, supra ["The hand once set to a task may not always be withdrawn with impunity though liability would fail if it had never been applied at all"]; see also, Kircher v City of Jamestown, 74 N.Y.2d 251; Cuffy v City of New York, 69 N.Y.2d 255; De Long v County of Erie, 60 N.Y.2d 296). The majority provides no reasons for departure from this rule.
Chief Judge WACHTLER and Judges KAYE, TITONE and BELLACOSA concur with Judge SIMONS; Judge HANCOCK, JR., dissents and votes to affirm in a separate opinion in which Judge ALEXANDER concurs.
Order reversed, etc.