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City Properly Held Liable for Failure to Address Excessive Speeding on Road Where Infant Plaintiff Was Struck—A Proprietary, Not a Governmental, Function Was Involved—The Doctrine of Qualified Immunity Did Not Apply Under the Facts

In upholding the jury’s finding the city liable for not addressing excessive speeding on the road where infant plaintiff was struck by a car and seriously injured, the Second Department explained the city’s liability for proprietary versus governmental functions and the inapplicability of the qualified immunity doctrine:

When a negligence cause of action is asserted against a municipality, the court must first decide whether the municipal entity was engaged in a proprietary function or was acting in a governmental capacity at the time the claim arose … . If the municipality’s activities are proprietary in nature, the municipality is subject to suit under the ordinary rules of negligence applicable to nongovernmental parties … . By contrast, if the municipality was exercising a nondiscretionary governmental function, it will not be held liable unless it owed a “special duty” to the injured party … .

Here, the plaintiffs alleged, among other things, that the City was negligent in that it received numerous complaints that vehicles were speeding and racing along the entire length of Gerritsen Avenue, but completely failed to conduct a proper and adequate study of this speeding problem, and failed to implement a reasonable plan to control or resolve the dangerous condition presented on the roadway. Since a municipality’s duty to keep its roads and highways in a reasonably safe condition is proprietary in nature …, the City’s contention that it cannot be held liable under the plaintiffs’ theory absent the existence of a “special duty” to the infant plaintiff must be rejected … .

The City’s argument that the causes of action asserted against it must be dismissed because it is entitled to immunity is also without merit. In the field of traffic design engineering, a municipality is accorded qualified immunity from liability arising out of its highway planning decisions … . The doctrine of qualified immunity, however, will only apply where the municipality has conducted a study which ” entertained and passed on the very same question of risk'” … as was alleged by the plaintiff. Indeed, a municipality may be held liable if, “after being made aware of a dangerous traffic condition, it does not undertake an adequate study to determine what reasonable measures may be necessary to alleviate the condition” … . Moreover, after a municipality implements a traffic plan, “it is under a continuing duty to review its plan in the light of its actual operation'” … . * * *

Considering the testimony and documentary evidence presented, there was a rational process by which the jury could have found that the City had notice that excessive speeding along the length of Gerritsen Avenue created a dangerous condition and that the City failed, in response to the complaints it received, to conduct a study which ” entertained and passed on [this] very same question of risk'” … posed by excessive speeding along Gerritsen Avenue. As such, the doctrine of qualified immunity does not apply … . Turturro v City of New York, 2015 NY Slip Op 02754, 2nd Dept 4-1-15

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