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THE NYS GAMING COMMISSION’S DUTIES TO INSPECT HORSES AND EQUIPMENT BEFORE A HARNESS RACE ARE PROPRIETARY, NOT GOVERMENTAL, IN NATURE; THEREFORE ORDINARY NEGLIGENCE PRINCIPLES APPLY AND THE IMMUNITY DEFENSE IS NOT AVAILABLE; DURING THE RACE A HORSE FELL AND CLAIMANT’S HORSE COLLIDED WITH THE FALLEN HORSE; THERE ARE QUESTIONS OF FACT ABOUT THE SAFETY OF THE FALLEN HORSE’S EQUIPMENT AND WHETHER THE HORSE EXHIBITED INDICATIONS HE WAS LAME; THERE ARE QUESTIONS OF FACT ABOUT THE APPLICABILTY OF THE ASSUMPTION OF THE RISK DOCTRINE; REGULATIONS RE: THE INSPECTION OF HORSES AND EQUIPMENT ALLOWED CONSTRUCTIVE NOTICE OF THE DANGEROUS CONDITION TO BE IMPUTED (THIRD DEPT). ​

The Third Department, in a comprehensive decision which should be consulted on the issues of governmental immunity, assumption of the risk and constructive notice, reversing Supreme Court, determined the New York State Gaming Commission was exercising a proprietary, not governmental, function when its employees inspected a harness-racing horse’s (Mister Miami’s) equipment and failed to scratch the horse, which exhibited indications he was “lame,” from the upcoming race. Claimant was injured when, during the race, claimant’s horse collided with Mister Miami after Mister Miami fell. Because the state’s alleged negligence stemmed from a proprietary function, ordinary negligence principles applied and there was no need to show a special relationship between claimant and the state, and the governmental immunity affirmative defense was not available. There were questions of fact whether the assumption-of-the-risk doctrine applied because the state may have acted to unreasonably increase the risk. As for notice, the regulations requiring the state to inspect the horses and equipment allowed the state’s constructive notice of the dangerous condition to be imputed:

… [T]he duties of [the state’s] officials are fundamentally intertwined with the operation of each and every race and, while such tasks may tangentially relate to the overall function of ensuring fair and honest gambling in this state, they are more specifically directed to the goal of ensuring the safety of the participants in those races … . … [I]t is apparent that at least part of the Commission’s role in harness racing is to work hand in hand with the private racing industry to further the state’s goal of “deriv[ing] a reasonable revenue for the support of government” … . * * *

… [W]e find that there are triable issues as to whether Commission officials adequately performed their duties and whether their alleged failures unreasonably increased the risk beyond a level generally inherent in harness track racing … .  …

Because [the inspection] duties were imposed upon the Commission officials by regulation, constructive notice of Mister Miami’s health and equipment issues that would have been observable during those inspections may be imputed … . Bouchard v State of New York, 2022 NY Slip Op 04202, Third Dept 6-30-22

Practice Point: This opinion has valuable discussions of; (1) how to analyze whether a government is exercising a governmental function (to which the “special relationship” and “governmental immunity” doctrines apply) or a proprietary function (to which ordinary negligence principles apply); (2) the assumption of the risk doctrine; and (3) the imputation of constructive notice when there are regulations mandating inspections which allegedly would have revealed the dangerous condition. Here claimant was injured during a harness race when his horse collided with a fallen horse. The complaint alleged the NYS Gaming Commission did not inspect the fallen horse and the fallen horse’s equipment prior to the race as required by the relevant regulations.

 

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SUNY ALBANY NOT PROTECTED BY GOVERNMENT IMMUNITY IN THIS CASE BROUGHT BY A STUDENT WHO ALLEGED SHE WAS ASSAULTED IN HER DORM ROOM BY A PERSON NOT AUTHORIZED TO BE IN THE DORM; THERE WERE QUESTIONS OF FACT ABOUT THE ADEQUACY OF SECURITY AND THE FORESEEABILITY OF THE ASSAULT (THIRD DEPT). ​

The Third Department determined defendant SUNY Albany’s motion for summary judgment in this inadequate-security case was properly denied. Claimant was assaulted in her dorm room by a person who was not authorized to be in the dormitory. The Court of Claims held the school was not protected by government immunity because building security was a proprietary function (akin to a landlord’s duty), as opposed to a governmental function, and therefore government immunity did not apply. There was evidence the lock on the dormitory door was not adequate and the sexual assault by an intruder was foreseeable:

As the Court of Appeals has recognized, “[a] governmental entity’s conduct may fall along a continuum of responsibility to individuals and society deriving from its governmental and proprietary functions” and “any issue relating to the safety or security of an individual claimant must be carefully scrutinized to determine the point along the continuum that the [governmental entity’s] alleged negligent action falls into, either a proprietary or governmental capacity” (Miller v State of New York, 62 NY2d 506, 511-512 [1984]). In Miller, a student at a state university was raped by an intruder in the laundry room in her dormitory. The Court of Appeals permitted the claim of negligence — stemming from the defendant’s failure to lock the entrance doors to the dormitory — to go forward in the defendant’s proprietary capacity as a landlord. As in Miller, claimant’s allegations that defendants failed to, among other things, install proper security devices, including locks, clearly implicate defendants’ proprietary function as a landlord, and the Court of Claims therefore correctly rejected defendants’ claim of governmental immunity. …

“Landlords have a common-law duty to take minimal precautions to protect tenants from foreseeable harm, including foreseeable criminal conduct by a third person” … . Criminal conduct is foreseeable if it is “reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location” … . P.R.B. v State of New York, 2022 NY Slip Op 00348, Third Dept 1-20-22

 

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PLAINTIFF’S VERDICT IN THIS SUBWAY ACCIDENT CASE SHOULD HAVE BEEN SET ASIDE; PLAINTIFF WAS STRUCK BY A TRAIN AND ALLEGED THE ALLOWED SPEED FOR ENTERING A STATION WAS TOO HIGH; DEFENDANT TRANSIT AUTHORITY SHOULD HAVE BEEN ALLOWED TO PRESENT EVIDENCE THAT SPEED STUDIES HAD BEEN CONDUCTED IN SUPPORT OF THE QUALIFIED IMMUNITY DEFENSE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Mazzarelli, determined the NYC Transit Authority’s (TA’s) motion to aside the plaintiff’s verdict in this subway accident case should have been granted. Plaintiff was on the tracks when he was struck by a train. Plaintiff argued the speed regulations allowed the train to enter the station at an unsafe speed. The trial judge prohibited the TA from introducing evidence demonstrating it was entitled to qualified immunity because it had conducted studies to determine the appropriate train speed:

The evidence that the TA proffered, and that the trial court precluded, suggested that it may have been entitled to qualified immunity. … Korach’s (the TA’s expert’s] testimony indicated that the TA’s speed policy was consistent with “universally accepted rapid transit system operating practice” … . Accordingly, Korach should have been permitted to testify about the policies that other rapid transit systems have in place with respect to speed restrictions in subway and train stations, including in cases where those stations are situated on curved sections of track. Further, … the testimony that the TA’s own witnesses would have given was designed to demonstrate that the speed policy enabled the “efficient running of a transportation system which serves millions of passengers every year” … . This language suggests that the trial court’s decision to limit evidence of speed policy decisions to their effects on a particular subway line was too restrictive, since the cases applying qualified immunity in subway speed cases take into account the effects that slower speeds would have on the entire subway system. Pedraza v New York City Tr. Auth., 2022 NY Slip Op 00255, First Dept 1-13-22

Similar issues in a case involving a similar accident in which the Pedraza (supra) trial-level evidentiary rulings on qualified immunity were applied under the doctrine of collateral estoppel. Because Pedraza was reversed, this case was reversed as well. Martinez v New York City Tr. Auth., 2022 NY Slip Op 00252, First Dept 1-11-22

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PLAINTIFF-STUDENT ALLEGED INJURY IN AN AFTERSCHOOL PROGRAM RUN BY TWO TEACHERS; THE DEPARTMENT OF EDUCATION IS IMMUNE FROM SUIT UNDER THE DOCTRINE OF GOVERNMENTAL IMMUNITY; THE PRINCIPAL’S APPROVAL OF THE AFTERSCHOOL PROGRAM WAS DISCRETIONARY AND NO SPECIAL DUTY WAS OWED PLAINTIFF (FIRST DEPT).

The First Department determined the NYC Department of Education (DOE) was immune from suit by a student who alleged injury in an afterschool program run two teachers (Polanish and Gallagher) called “Mind, Body & Sport” (MBS). The school principal’s approval of the program was a discretionary act and no special duty was owned plaintiff:

The school principal’s granting of a permit for MBS to operate on school grounds was a discretionary action taken during the performance of a governmental function, and thus, the DOE was shielded from liability by the doctrine of governmental immunity … . Plaintiffs have failed to establish that the DOE owed the infant plaintiff a special duty that would render the DOE liable to plaintiffs for negligent acts … . Likewise, as to the MBS flyer, the DOE cannot be held liable through the doctrine of apparent authority for issuance of the flyer without the required disclaimer. As with the approval of the permit, the school principal’s approval of the MBS flyer involved the exercise of her reasoned judgment and discretionary authority, thus entitling DOE to governmental function immunity … .

The DOE also cannot be held liable for negligently supervising Polanish and Gallagher’s conduct during the MBS program. That the DOE permitted MBS to run as an afterschool program on school grounds does not provide a basis for holding the DOE liable, since “[a] defendant generally has no duty to control the conduct of third persons so as to prevent them from harming others, even where as a practical matter defendant can exercise such control” … . R.K. v City of New York, 2021 NY Slip Op 07092, First Dept 12-21-21

 

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QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT IN THIS ACTION AGAINST THE TOWN; TOWN POLICE HAD CONFISCATED PLAINTIFF’S DECEDENT’S HUSBAND’S GUN AFTER SHE TOLD THE POLICE HE HAD ASSAULTED HER; THE TOWN SUBSEQUENTLY RETURNED THE GUN TO HER HUSBAND AFTER LEARNING HE WAS A RETIRED POLICE OFFICER; HER HUSBAND THEN SHOT AND KILLED PLAINTIFF’S DECEDENT AND TOOK HIS OWN LIFE (SECOND DEPT).

The Second Department determined the town’s motion for summary judgment was properly denied. Plaintiff’s decedent had called the town police and told them her husband had assaulted her and that she feared for her life. The town police confiscated her husband’s gun. The town returned the gun upon learning the husband was a retired police officer, even though he was not licensed to possess a gun in New York. He shot and killed plaintiff’s decedent and then took his own life:

Government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general … . Here … the return of the firearm … was not a discretionary function. [Decedent’s husband] did not, … produce a license to possess the gun in the State of New York, and did not produce the proper identification under the Law Enforcement Officers Safety Act … . * * *

… [T]he evidence demonstrated the existence of triable issues of fact as to whether the Town, through its police officers, voluntarily assumed a duty on behalf of the decedent when they confiscated [the] gun in response to the decedent’s alleged report that [her husband] had physically assaulted her.

… The Town was not entitled to summary judgment … on the ground that [decedent”s husband’s] shooting of the decedent was an intervening act that severed the causal connection between the Town’s alleged negligence … and the injuries and death to the decedent … . An intervening act may not serve as a superseding cause, and relieve an actor of responsibility, where the risk of the intervening act occurring is the very same risk which renders the actor negligent … . Santaiti v Town of Ramapo, 2021 NY Slip Op 04986, Second Dept 9-15-21

 

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THE CITY DID NOT DEMONSTRATE THE ABSENCE OF A LEFT TURN TRAFFIC SIGNAL WAS BASED ON A STUDY FINDING THE SIGNAL WAS NOT WARRANTED; THEREFORE THE CITY DID NOT DEMONSTRATE IT WAS ENTITLED TO IMMUNITY IN THIS HIGHWAY-PLANNING ACTION BY A PEDESTRIAN WHO WAS STRUCK BY A VEHICLE MAKING A LEFT TURN (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the city’s motion for summary judgment in this pedestrian-vehicle accident case should not have been granted. Plaintiff was crossing the street in the crosswalk with the pedestrian light in her favor when she was struck by a car making a left turn. There was a left turn lane but no left turn traffic signal. The city did not demonstrate the design of the traffic light was based upon a study which considered whether a left turn signal was warranted:

… [I]n the field of traffic design engineering, the State is accorded a qualified immunity from liability arising out of a highway planning decision” … . Under the doctrine of qualified immunity, a governmental entity may not be held liable for a highway safety planning decision unless its study of a traffic condition is plainly inadequate, or there is no reasonable basis for its traffic plan … . Immunity will apply only “where a duly authorized public planning body has entertained and passed on the very same question of risk as would ordinarily go to the jury” … .

Here, the City failed to establish that the design of the subject traffic signal, including the determination that no left-turn signal was warranted, was based on a study which entertained and passed on the very same question of risk that the plaintiff would put to a jury … . Rosado v City of New Rochelle, 2021 NY Slip Op 04675, Second Dept 8-11-21

 

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DEFENDANT OWNS A VINEYARD IN WHICH PLAINTIFF WAS INJURED IN AN ALL-TERRAIN-VEHICLE ACCIDENT; DEFENDANT WAS ENTITLED TO IMMUNITY PURSUANT TO GENERAL OBLIGATIONS LAW 9-103 BECAUSE THE VINEYARD WAS “SUITABLE FOR RECREATIONAL USE” (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s property (a vineyard) was suitable for recreational use and therefore defendant was entitled to immunity pursuant to General Obligations Law 9-103. Defendant was not liable for plaintiff’s injuries from an all-terrain-vehicle (ATV) accident which occurred when the driver missed a bridge over a culvert:

… “[D]efendant, as the party seeking summary judgment, ha[d] the burden of establishing as a matter of law that he is immune from liability pursuant to the statute” … . We conclude that defendant met his initial burden on the motion of establishing that the site where the accident occurred was suitable for recreational use … . The evidence defendant submitted on the motion showed that the vineyard’s dirt and grass-covered roads, as well as the bridge where the accident occurred, were physically conducive to ATV riding. Additionally, defendant established that the vineyard’s roads and the bridge were appropriate for public use for recreational ATV riding based on the uncontradicted testimony of defendant Aaron P. Gibbons, an adjoining property owner, that, over a significant period of time, he and his wife had frequently driven ATVs on the vineyard’s roads and the bridge and had often observed others doing the same. Wheeler v Gibbons, 2021 NY Slip Op 04323, Fourth Dept 7-9-21

 

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THE POLICE OFFICERS’ DECIDING NOT TO ARREST PLAINTIFF’S DECEDENT’S SON AFTER AN ALTERCATION BETWEEN HER AND HER SON WAS AN EXERCISE OF DISCRETION PROTECTED BY GOVERNMENTAL IMMUNITY; THEREFORE THE CITY WAS NOT LIABLE FOR THE SUBSEQUENT ATTACK BY HER SON RESULTING IN THE DEATH OF PLAINTIFF’S DECEDENT (SECOND DEPT).

The Second Department, reversing Supreme Court in this third-party assault case, determined the city could not be held liable for the injury and death of plaintiff’s decedent at the hands of her son. The police had been called to plaintiff’s decedent’s home because of an altercation between her and her son, Matthew. The police did not arrest her son. The next day her son attacked her with a baseball bat and she died from her injuries. The Second Department held that the decision not to arrest the son was an exercise of discretion which is protected by the doctrine of governmental immunity:

The governmental function immunity defense cannot attach unless the municipal defendant establishes that the discretion possessed by its employees was in fact exercised in relation to the conduct on which liability is predicated … . The immunity afforded a municipality presupposes an exercise of discretion in compliance with its own procedures … . The basis for the value judgment supporting immunity and denying individual recovery for injury becomes irrelevant where the municipality violates its own internal rules and policies and exercises no judgment or discretion … . Immunity is not available unless the municipality establishes that the action taken actually resulted from discretionary decision-making, meaning the exercise of reasoned judgment which could typically produce different acceptable results … .

Here, the defendants established … that the City was entitled to judgment as a matter of law … by its submissions, which demonstrated that the police officers’ actions were discretionary, and they did not fail to follow the police department’s rules and policies in deciding not to arrest Matthew … . The evidence demonstrated that the officers determined that Matthew had committed a violation during the altercation with his mother. Since the officers determined that no crime had been committed, pursuant to CPL 140.10(4)(c) and the patrol guide mandates, the officers were not compelled to arrest Matthew. The evidence further demonstrated that the officers’ decision involved reasoned judgment and an exercise of discretion in compliance with departmental procedures. Devlin v City of New York, 2021 NY Slip Op 02275, Second Dept 4-14-21

 

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REPORTING AN ALLEGED SEXUAL ASSAULT TO THE POLICE DOES NOT EVINCE MALICE SUFFICIENT TO OVERCOME THE QUALIFIED IMMUNITY ASSOCIATED WITH MAKING THE REPORT; THE DEFAMATION ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Manzanet-Daniels, determined the defamation action based upon defendant’s filing a sexual assault complaint with the police was protected by qualified immunity and the nature of the complaint did not evince the malice required to overcome the qualified immunity. The sexual assault trial ended in a hung jury and defendant agreed to an adjournment in contemplation of dismissal as the disposition of her charges against plaintiff. Plaintiff was formerly an assistant district attorney and defendant was a reporter for the Daily News:

The doctrine of qualified immunity shields individuals who, like defendant, act “in the discharge of some public or private duty, legal or moral, or in the conduct of [her] own affairs, in a matter where h[er] interest is concerned” … . To overcome the qualified privilege protecting defendant’s statements to the police, plaintiff was required to sufficiently allege that she published the statements with actual malice, i.e., that defendant “acted out of personal spite or ill will, with reckless disregard for the statement’s truth or falsity, or with a high degree belief that [her] statements were probably false” … . * * *

Plaintiff’s allegations fall short of alleging actual malice sufficient to overcome the qualified privilege attaching to defendant’s statements to the police. Even as alleged in the complaint, the statements are a straightforward rendition of the incident that defendant claims occurred during a car ride with plaintiff. There was nothing excessive or “vituperative” in the character of the reported statements that would support an inference of actual malice … . Indeed, it is difficult to see how defendant could have been more succinct or restrained in her description of the events while accomplishing her purpose: to report to the police that she had been the victim of sexual assault. Sagaille v Carrega, 2021 NY Slip Op 01369, First Dept 3-9-21

 

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SUPREME COURT DID NOT HAVE SUBJECT MATTER JURISDICTION OVER AN ACTION TAKEN BY THE UNKECHAUG INDIAN NATION TO EXCLUDE A MEMBER OF THE NATION FROM A PARCEL OF NATION LAND (SECOND DEPT).

The Second Department determined Supreme Court properly ruled it did not have subject matter jurisdiction over a land-possession dispute within the Unkechaug Indian Nation. The Nation first sought a Supreme Court ruling on the rightful possessor of the land (claimed to be Curtis Treadwell), thereby waiving sovereign immunity on that issue. Then the Nation, pursuant to its own internal Tribal Rules, determined Danielle Treadwell, who occupied a portion of the land, was an “undisirable person” and, based on that finding, could no longer occupy the property. The Supreme Court did not have subject matter jurisdiction over the “undesirable person” action taken by the Nation:

… [B]y bringing the April 2018 determination that Curtis was the rightful possessor of the subject property before the state Supreme Court, and seeking a declaration and enforcement, the Nation waived its sovereign immunity, though only as to that determination and its enforcement … . Accordingly, so long as the Nation relied on the April 2018 determination as its basis for excluding Danielle from the disputed portion of the subject property, the defendants’ counterclaims seeking inverse declarations could proceed along with the Nation’s action for declaratory relief. However, once the Nation proceeded to take the undesirability vote in September 2019 and issue the tribal resolution and directives based upon the membership’s vote, the Nation, pursuant to its own Tribal Rules, created a new and independent basis, under its sovereign authority, for excluding Danielle from the disputed portion of the subject property. The Supreme Court properly recognized that once it was informed of the 2019 undesirability determination, it could not take any action with respect thereto, as this was a sovereign act of the Nation outside the court’s subject matter jurisdiction … . Unkechaug Indian Nation v Treadwell, 2021 NY Slip Op 01286, Second Dept 3-3-21

 

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