The American Insurance Company v. City of Jamestown - Document 40
DECISION AND ORDER adopting Report and Recommendation re 31 ; granting 24 DEFENDANT'S Motion for Summary Judgment. Clerk of Court to enter judgment for defendant City of Jamestown and close the case. CLERK TO FOLLOW UP. Signed by Hon. Richard J. Arcara on 10/22/2012. (JMB)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
THE AMERICAN INSURANCE COMPANY,
DECISION AND ORDER
CITY OF JAMESTOWN,
This action is brought by an insurance company to recover approximately
$392,000 it paid to an insured for property damage allegedly caused by municipal
negligence. On August 9, 2009, a drainage culvert in Jamestown, New York,
became clogged with tree limbs and branches during very heavy rain. Storm water
backed up and flooded part of a hospital. The plaintiff, The American Insurance
Company (“AIC”), paid the hospital for the flood damage.
Plaintiff AIC alleges that the defendant, the City of Jamestown, caused the
flood damage to the hospital by failing to inspect and maintain the drainage culvert.
Plaintiff brings the action as subrogee under the hospital’s insurance policy to
recover from Jamestown the $392,000 insurance payment to the hospital.
The Court has subject-matter jurisdiction due to diversity of citizenship of the
parties. 28 U.S.C. § 1332(a). The action is before the Court for review of a Report
and Recommendation (the “R&R”) by Magistrate Judge Hugh B. Scott on a motion
for summary judgment by defendant Jamestown pursuant to Rule 56(a) of the
Federal Rules of Civil Procedure. The R&R recommended that the Court grant
summary judgment to Jamestown on the ground that plaintiff AIC lacks sufficient
evidence to establish that Jamestown was negligent. Pre-trial discovery is
complete. For the reasons that follow, on findings different from those in the R&R,
the Court adopts the recommendation of the R&R and grants summary judgment to
The Court finds that a provision of the City of Jamestown Charter required
Jamestown to have been given prior written notice of a “defective, out-of-repair, . . .
or obstructed condition” of the drainage culvert that caused the flooding at the
hospital before a negligence cause of action could be maintained against
Jamestown. Charter, § C-68. Because Jamestown was not given the required
notice, it did not owe a legally recognized duty of care with respect to a defective,
out-of-repair, or obstructed culvert and plaintiff AIC’s negligence claim is
unsustainable as a matter of law.
Even if the prior notification requirement in the Jamestown Charter does not
bar plaintiff AIC’s negligence claim, plaintiff lacks sufficient evidence to establish
Jamestown was aware, or constructively aware, of the dangerous or obstructed
condition of the drainage culvert before the culvert became clogged on August 9,
2009. Without this showing, plaintiff is unable to satisfy a threshold legal
requirement that Jamestown owed the hospital a duty of care with respect to the
culvert. The Court therefore grants summary judgment to Jamestown on plaintiff
AIC’s negligence claim.
From August 8th through August 10th, 2009, heavy rains fell during storms
over the City of Jamestown, New York. Flooding and other storm-related damage
was so severe that Jamestown received disaster-relief assistance from the Federal
Emergency Management Agency and the New York State Emergency Management
During these storms, on Sunday, August 9th, a drainage culvert located near
the intersection of Camp Street and West Virginia Boulevard in Jamestown (the
“Camp Street culvert”) became clogged primarily with tree limbs and branches
during a heavy downpour of rain. Storm water backed up at the mouth of the culvert
and flowed down nearby streets and into the parking lot and emergency department
of The Women’s Christian Hospital Association (the “WCA Hospital”) approximately
1,500 feet away. The WCA Hospital, which is situated in a low-lying area, suffered
property damage because of the clog and flooding. The plaintiff, The American
Insurance Company, paid the hospital more than $392,000 under the hospital’s
insurance policy for the damage.
The Camp Street culvert, in which the clog occurred, begins with a semicircular stone arch at the mouth of the culvert on the south side of Camp Street.
Before the arch, to the south, a small stream known as Minnow Creek flows into the
mouth of the culvert through a wooded draw. Minnow Creek is fed by several
offshoots upstream from the culvert.
The Camp Street culvert was rebuilt by Jamestown in 2007. Inside the mouth
of the culvert, a concrete chamber catches runoff and storm water. Twin thirty-six
inch diameter corrugated plastic pipes drain from the concrete chamber, side-byside, under Camp Street, to another concrete chamber where the culvert feeds into
one of four main branches of Jamestown’s storm water drainage system. That
branch of the drainage system continues underground, generally north of Camp
Street, until it discharges into the Chadakoin River, which is north of the WCA
Hospital. The culvert is accessible by manhole.
The August 9, 2009 clog of the Camp Street culvert extended roughly 100
feet inside the mouth of the culvert at Minnow Creek. Before the August 9, 2009
clog and flooding, Jamestown had not been given written notice of an obstruction or
of clogging of the culvert, or of any condition that could cause the culvert to become
obstructed or clogged.
Before the August 9, 2009 clog and flooding, Jamestown’s practice was to
check its storm water drainage system for blockages and potential blockages from
time to time. These inspections were incidental to other work on the drainage
system, in response to citizen complaints, or the work of a stand-by cleaning crew
that would rotate though Jamestown cleaning the entire system, including catch
basins. Jamestown had no written policy for the frequency of inspections, or the
scope of the inspections, but the practice was for the cleaning crew to use a flusher
truck and rods to clean approximately one quarter of the entire system annually.
Jamestown kept no records of the inspections and cleaning work on the
drainage system. Dates of the work, locations of the work, and conditions found in
the drainage system were not documented. Locations in the drainage system that
had problems in the past were given more attention, but no documentation shows
where, when and how these problems occurred and how they were addressed by
There had been some prior flooding at or near the WCA Hospital. There had
been other occasions when Jamestown’s storm water drainage system clogged in
other parts of Jamestown, and Jamestown had studied other parts of the system to
address those problems.
There had been no other occasions when the Camp Street culvert had
clogged or been found to be even partially clogged. No witnesses or documents
have been located showing any prior clogging or even a debris-collection problem at
or in this culvert.
The Jamestown Streets and Sewer Supervisor testified during pretrial
discovery that he lives not far from the Camp Street culvert and would sometimes
drive over it on his way to and from work in the years before the clog and flooding on
August 9, 2009. The Supervisor recalled he had personally checked under the
manhole cover at the spot where the culvert clogged to see how water was flowing
through the twin, 36-inch diameter pipes in the culvert under Camp Street. He was
unable to recall how many times he had checked the water flow through the culvert
before the clog and flooding. He did not recall whether the mouth of the culvert at
the arch headwall of the culvert where Minnow Creek feeds into the culvert had ever
been visually inspected.
After the August 9, 2009 clog of the Camp Street culvert and flooding,
Jamestown sought permission from the New York State Department of
Environmental Conservation (the “DEC”) to install a debris-collection gate across the
eight- to ten-foot width of Minnow Creek at the mouth of the culvert to stop large tree
limbs and branches from entering the culvert during heavy runoff. October 9, 2009
correspondence sent by Jamestown to the DEC for this purpose stated:
The concrete chamber on the South side of Camp Street
periodically traps organic debris, thus causing a water
backup or surcharge where Minnow Brook enters the arch
culvert, . . . .
Despite the letter, no witness remembers any part of the culvert trapping organic or
other debris any time prior to the August 9, 2009 clog and flooding. The reference in
the letter to “periodically traps organic debris . . . causing a water backup” was
prompted by the August 9, 2009 clog and flooding.
I. The Report and Recommendation. The standard of review of a
Magistrate Judge’s report and recommendation is de novo for any findings to which
a party specifically objects. Fed. R. Civ. P. 72(b); see United States v. Male
Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). The Court reviews unobjected-to findings
for clear error. Charvenko v. Barbera, 2011 WL 1659882 at *1 (W.D.N.Y. May 3,
Pursuant to these standards of review, the Court finds that Jamestown did not
owe the WCA Hospital a duty of care with respect to the condition of the Camp
Street culvert when the flooding occurred. The Court adopts the conclusion of the
R&R to grant summary judgment to Jamestown, but not for the reasons stated in the
The R&R first recommended that the Court deny summary judgment to
Jamestown based upon Jamestown’s argument that the negligence claim of plaintiff
AIC may not be maintained since Jamestown had not been given prior written
notification as required by § C-68 of the Jamestown Charter of a defective, out-ofrepair, or obstructed condition of the culvert that became clogged. The R&R found
that the prior notification requirement could not be applied on summary judgment
before a jury decides a foreseeability question. The Court finds that reasoning
clearly erroneous because Jamestown’s prior notification requirement bars plaintiff’s
negligence claim without regard to foreseeability of harm.
On a different ground, the R&R recommended that Jamestown’s motion for
summary judgment be granted. The R&R found that a municipality is not liable
under New York law for negligent inspection and maintenance of a storm water
drainage culvert that becomes clogged unless the municipality was actually aware of
a clogging problem with the culvert. The R&R concluded plaintiff AIC lacks enough
evidence Jamestown was aware of a clogging problem to prove that Jamestown
negligently failed to inspect and maintain the culvert. The Court rejects that
reasoning on de novo review because New York law requires either actual
knowledge or constructive knowledge of a potential clogging problem with the
culvert. The Court nevertheless concludes, because Jamestown had neither actual
knowledge or constructive knowledge of a potential clogging problem with the
culvert, that Jamestown is not be liable to the hospital or its subrogee and that
summary judgment should be entered against plaintiff.
II. The Standard for Summary Judgment. Summary judgment pursuant to
Rule 56 of the Federal Rules of Civil Procedure:
is properly regarded not as a disfavored procedural shortcut,
but rather . . . must be construed with due regard not only for
the rights of persons asserting claims and defenses that are
adequately based in fact to have those claims and defenses
tried to a jury, but also for the rights of persons opposing
such claims and defenses to demonstrate . . . , prior to trial,
that the claims and defenses have no factual basis.
Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). Summary judgment pursuant to
Rule 56 is warranted if “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Fed.
R. Civ. P. 56(c). It should be entered “against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and
on which that party will bear the burden of proof.” Celotex Corp. v. Catrett, 477 U.S.
at 322; Rieseck v. Universal Communications of Miami, Inc., 591 F.3d 101, 104 (2d
The analysis that follows begins with an overview of applicable negligence
law, including the law of a municipality’s duties of care with respect to storm water
runoff. Because the action is pending on diversity jurisdiction, 28 U.S.C. § 1332(a),
state substantive law applies. Gasperini v. Center for Humanities, Inc., 518 U.S.
415, 427 (1996). New York law applicable to a negligence cause of action therefore
determines which factual issues are material and “[o]nly 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
The Court then addresses whether Jamestown owed the WCA Hospital a
duty of care with respect to the condition of the Camp Street culvert when the
flooding occurred on August 9, 2009. Because the Court is assessing the evidence
on defendant Jamestown’s motion for summary judgment, the Court does not weigh
the evidence and instead draws all reasonable inferences relevant to material facts
in favor of the nonmoving party, plaintiff AIC. Anderson v. Liberty Lobby, Inc., 477
U.S. at 255. To defeat Jamestown’s motion for summary judgment, plaintiff must
show more than “some metaphysical doubt as to the material facts.” Matsushita
Elec. Indus, Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
III. Applicable Negligence Law. Because the Court is sitting in diversity, it
applies settled New York law as it has been interpreted by New York courts and is
required to “carefully predict” how New York Courts would rule on any uncertain
substantive-law questions. Runner v. N.Y. Stock Exch., Inc., 568 F.3d 383, 386 (2d
Cir. 2009) (quoting The Travelers Ins. Co. v. Carpenter, 411 F.3d 323, 329 (2d Cir.
2005)). The action involves primarily well-settled questions of New York law.
The New York negligence cause of action plaintiff AIC alleges against
Jamestown has three elements: “(1) a duty owed by the defendant to the plaintiff,
(2) a breach thereof, and (3) injury proximately resulting therefrom.” Solomon ex rel
Solomon v. City of New York, 66 N.Y. 1026, 1027 (1985); see e.g., Lerner v. Fleet
Bank, N.A., 459 F.3d 273, 286 (2d Cir. 2006) (quoting Solomon, supra,);
DiBenedetto v. Pan Am World Service, Inc., 359 F.3d 627, 630 (2d Cir. 2004)
(same). If the plaintiff’s evidence is insufficient as a matter of law to carry the
plaintiff’s burden of proof on even one of the three elements of the negligence cause
of action by a preponderance of the admissible evidence, summary judgment must
be entered against the plaintiff. Fed. R. Civ. P. 56(a), (e); see e.g., Rothstein v. City
of New York, 2011 WL 3273473 (S.D.N.Y. July 29, 2011).
A. Duty of Care. The first element of a negligence cause of action — that a
defendant owes a duty of care to the plaintiff — involves a threshold legal inquiry.
Gilson v. Metropolitan Opera, 5 N.Y.3d 574, 576-77 (2005); Guest v. Holka, 603
F.3d 15, 21 (2d Cir. 2010). “The threshold question in any negligence action is:
does defendant owe a legally recognized duty of care to plaintiff?” Hamilton v.
Beretta U.S.A. Corp., 96 N.Y.2d 222, 232 (2001). Both “[t]he existence and scope
of an alleged tortfeasor’s duty [are], in the first instance, . . . legal question[s] for
determination by the courts.” Sanchez v. State of New York, 99 N.Y.2d 247, 252
(2002) (internal citation omitted); DiPonzio v. Riordan, 89 N.Y.2d 578, 583 (1997);
DiBenedetto, 359 F.3d at 630. As the New York Court of Appeals has stated:
[a] finding of negligence may be based only upon the breach
of a duty. . . . Although juries determine whether and to
what extent a particular duty was breached, it is for the
courts first to determine whether any duty exists.
Darby v. Compagnie Nat’l Air France, 96 N.Y. 2d 343, 347 (2001).
B. Municipal Duties Regarding Storm Water. In general, a municipality in
New York owes no common law duty of care to control surface water runoff, to keep
streams free of obstructions, or to provide flood protection. See e.g., O’Donnell v.
City of Syracuse, 184 N.Y. 1, 10-11 (1906); Cashin v. City of New Rochelle, 256
N.Y. 190, 195 (1931); Office Park Corp. v. County of Onondaga, 64 A.D.2d 252, 258
(4th Dep’t 1978). If a municipality builds a storm water drainage system or sewer, it
is ordinarily immune from liability if the drainage system is inadequate. See Seifert
v. Brooklyn, 101 N.Y. 136, 145-46 (1886); Carbonaro v. Town of North Hempstead,
97 A.D.3d 624 (2d Dep't 2012); but see, Klebe v. Tri-Municipal Sewer Com’n, 160
A.D.2d 677, 679 (2d Dep’t 1990) (municipal immunity for an exercise of policy or
operational judgment is ordinarily qualified immunity).
If the municipality learns of an inadequacy in its storm water drainage system,
it may be legally-bound to exercise reasonable care timely to address the
inadequacy, however. Seifert v. Brooklyn, supra. A municipality may also face
liability where a drainage system is negligently constructed, Smith v. City of New
York, 66 N.Y. 295, 296 (1876), or where the municipality breaches the duty to
"exercise . . . a reasonable degree of watchfulness" in the inspection and
maintenance of a drainage system. McCarthy v. City of Syracuse, 46 N.Y. 194, 198
(1871); Fireman's Fund Ins. Co. v. County of Nassau, 66 A.D.3d 823, 824 (2d Dep't
2009). Plaintiff AIC’s negligence claim and objections to the R&R are premised
upon Jamestown breaching a duty of watchfulness over the Camp Street culvert as
part of its storm water drainage system.
C. Limitations of Municipal Duties Regarding Storm Water. As is stated
above, the scope of the duty of care in New York is initially a question of law for the
Court. Palka, 83 N.Y.2d at 585 (1994); Eaves Brooks Costume Co. v. W.B.H. Realty
Corp., 76 N.Y.2d 220, 226-27 (1990). New York courts generally determine a
common law duty of care:
by balancing factors, including the reasonable expectations
of parties and society generally, the proliferation of claims,
the likelihood of unlimited or insurer-like liability,
disproportionate risk and reparation allocation, and public
policies affecting the expansion or limitation of new channels
Palka v. Servicemaster Mgt. Servs. Corp., 83 N.Y.2d at 586 (quoted in 532 Madison
Ave. Gourmet Foods, Inc. v. Finlandia Center, Inc. 96 N.Y.2d 280, 288-89 (2001)
(citing Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 232 (2001)).
In this context, the concept of “foreseeability bears on the scope of a duty [of
care], not whether a duty exists in the first place." Holdampf v. AC&S, Inc. 5 N.Y.3d
486, 494 (2005). “[F]oreseeability of harm does not define duty. Absent a duty
running directly to the injured person there can be no liability in damages, however
careless the conduct or foreseeable the harm . . . .” 532 Madison Ave. Gourmet
Foods, Inc. v. Finlandia Center, Inc., 96 N.Y.2d at 289 (citation omitted). Since there
common law precedent and legislation control the issues posed by Jamestown’s
motion for summary judgment, the Court need not undertake a complex balancing of
the many factors that related to Jamestown’s duty of care with respect to the Camp
Street culvert on August 9, 2009.
1. Legislative limits on the duty of care. The New York legislature, in N.Y.
Gen. Mun. Law § 50-e(4), has clarified the authority of municipalities to limit their
duty of care in derogation of the common law by specifically allowing municipalities
to require prior written notice of certain potential problems. See generally, Gorman
v. Town of Huntington, 12 N.Y.3d 275, 294 (2009) (quoting Poirier v. City of
Schenectady, 85 N.Y.2d 310, 313 (1995)); Barry v. Niagara Frontier Transportation
Authority, 35 N.Y.2d 629, 633 (1974). A municipality is authorized by § 50-e(4) to
adopt a local law or charter provision requiring that the municipality be given prior
written notice of a dangerous or obstructed condition and a reasonable amount of
time to address the condition before the municipality will incur liability for negligent
malfeasance. Poirier v. City of Schenectady, 85 N.Y.2d 310, 313 (1995); Amabile v.
City of Buffalo, 93 N.Y.2d 471, 473 (1999) (“Prior notification laws are a valid
exercise of legislative authority.”); see White v. Village of Hempstead, 13 Misc.3d
471, 467-68 (Sup. Ct. Nassau Co. 2006) (N.Y. Const. Art. IX, § 2(c) and N.Y. Mun.
Home Rule Law § 10 authorize municipalities to adopt prior notification
New York General Municipal Law § 50-e(4) specifies six locations that may be
covered by a prior notification requirement of a dangerous or obstructed condition:
No other or further notice [except a notice of claim] . . . shall
be required as a condition to commencement of an action
. . . provided, however, that nothing herein shall be deemed
to dispense with the requirement of notice of the defective,
unsafe, dangerous or obstructed condition of any street,
highway, bridge, culvert, sidewalk or crosswalk, or of the
existence of snow or ice thereon, where such notice now is,
or hereafter may be, required by law, as a condition
precedent to liability for damages or injuries to person or
property alleged to have been caused by such condition,
and the failure or negligence to repair or remove the same
after the receipt of such notice.
Id.; Town of Hempstead v. Walker, 84 N.Y.2d 360 (1994). Only the six locations in
N.Y. Gen. Mun. Law § 50-e(4) — which include culverts — may be the subject of a
prior notification requirement in a local law or charter provision. Id.; Poirier v. City of
Schenectady, 85 N.Y.2d at 313.
Because prior notification requirements limit common law duties of care, they
are read strictly. Gorman v. Town of Huntington, 12 N.Y.3d 275 (2009). For
example, a municipal prior notification requirement is not necessarily satisfied even
if the municipality has constructive notice of a dangerous or obstructed condition of a
storm water drainage system. See Amabile v. City of Buffalo, 93 N.Y.2d 471, 47576 (1999) (constructive notice is insufficient). Even when a municipality actually
receives prior written notice, if the notice is received by the wrong office of the
municipality, it may be insufficient. Gorman, 12 N.Y.3d at 294-95 (2009) (written
notice to the municipality, but not to the municipality’s specific designee in the prior
notification law, was insufficient); Schaal v. City of Utica, 6 A.D.3d 1070 (4th Dep’t
2004). Prior written notice need not have been given by a party to the negligence
action or by any particular person to be sufficient.
There are two exceptions to New York municipal prior notification laws. First,
if a municipality created a dangerous or obstructed condition by an act of affirmative
negligence, it may not avoid liability by requiring compliance with a legislative prior
notification requirement. Amabile v. City of Buffalo, 93 N.Y.2d at 474; Poirier v. City
of Schenectady, 85 N.Y.2d at 314-15. Affirmative negligence usually requires an act
that “immediately results in a dangerous [or obstructed] condition.” Obler v. City of
New York, 8 N.Y.3d 888, 889 (2007) (quoted in San Marco v. Village/Town of Mt.
Kisco, 16 N.Y.3d 111, 116 (2010)). A reasonably watchful municipality recognizes
its own actions that immediately result in danger or a risk of obstruction and is duty
bound to take reasonable steps to avert the danger or risk, even in the absence of
compliance with a prior written notice requirement. Id. A municipality’s passive
negligence is insufficient to satisfy this exception to a prior notification requirement.
Monteleone v. Inc. Vil. of Floral Park, 74 N.Y.2d 917, 919 (1989).
Second, a municipal prior notification requirement will not apply where a
dangerous or obstructed condition was created by a municipality’s special use of
property. Amabile v. City of Buffalo, 93 N.Y.2d at 474. The special use must confer
a special benefit upon the municipality. Oboler v. City of New York, 8 N.Y.3d at 890.
For example, a missing manhole cover on a street may be within the special use
exception of a prior notification requirement. See Ocasio v City of Middletown, 148
A.D.2d 431, 432 (1st Dep’t 1989).
2. Legislative Limit on Jamestown’s Duty of Care to the WCA Hospital.
New York law imposes a duty upon Jamestown to exercise a reasonable degree of
watchfulness over its storm water drainage system sufficient to protect others from
unreasonable risk of injury. That was Jamestown’s duty of care long before the
flooding in August of 2009, and that is Jamestown’s duty now. See e.g., Carbonaro
v. Town of North Hempstead, 97 A.D.3d 624 (2d Dep't 2012). It is undisputed that
the August 9, 2009 flooding in Jamestown caused by the clog in the Camp Street
culvert was a substantial factor in bringing about significant property damage to the
WCA Hospital. However, “[p]roof of negligence in the air, so to speak, will not do”
to trigger negligence liability. Palsgraf v. Long Island R. Co., 248 N.Y. 339, 341
(1928) (quotation omitted). “Without a duty running directly to the injured person
there can be no liability in damages, however careless the conduct or foreseeable
the harm.” Lauer v. City of New York, 95 N.Y.2d 95, 100 (2000). “In the absence of
duty, there is no breach and without a breach there is no liability.” Pulka v.
Edelman, 40 N.Y.2d 781, 782 (1976).
The prior notification requirement in § C-68 of Jamestown’s Charter provides
No civil action shall be maintained against the City for
damages or injuries to person or property sustained in
consequence of any public street or highway or public place,
land or building, including but not limited to any bridge,
culvert, sidewalk, crosswalk, grading, opening, drain, sewer,
park, or playground or equipment located herein or thereon
being in a defective, out-of-repair, unsafe, dangerous, or
obstructed condition, unless it appears that prior to the
occurrence resulting in such damages or injuries written
notice of the existence of such condition relating to the
particular place or equipment was actually given to the City
Clerk and filed in his/her office and that there was a failure
or neglect within a reasonable time after receipt of such
notice to repair, remedy, or remove the condition complained
Id. Accordingly, no negligence cause of action to recover for property damage may be
maintained against Jamestown for a defective, out-of-repair, or obstructed culvert
unless the City Clerk has been given written notice of the condition a sufficient period
of time before damage occurs to have allowed Jamestown a reasonable chance to
remedy the condition. Id.
The purpose and policy behind § C-68 of Jamestown’s Charter is to limit the
scope of Jamestown’s duty of care. See Gorman v. Town of Huntington, 12 N.Y.3d
275, 279 (2009). Section C-68 means that the obligation that Jamestown owed to the
WCA Hospital with respect to the Camp Street culvert, at the time the culvert became
clogged on August 9, 2009 and storm water flooded the WCA Hospital, was a legallycontingent obligation: Jamestown would only have had a legally recognized duty of
care to have repaired any defect in the culvert, or to have cleared any obstruction or
potential obstruction of the culvert, within a reasonable time after specific written notice
of the defect or the potentially obstructed condition of the culvert had been given to the
City Clerk. Charter, § C-68; see e.g., DelCamp v. Village of Brocton, 270 A.D.2d 842
(4th Dep’t 2000).
Plaintiff AIC concedes that no prior written notice as required by § C-68 of the
Jamestown Charter of the condition of the Camp Street culvert was ever given to the
City Clerk of Jamestown. Without such notice, Jamestown had no legally recognized
duty of care to the WCA Hospital with respect to a defective, out-of-repair, or obstructed
condition of the Camp Street culvert.
Gorman, 12 N.Y.3d 275, 279.
Jamestown did not owe the hospital that legally recognized duty of care, the negligence
claim of plaintiff against Jamestown for the flood damage to the hospital is
unsustainable and Jamestown is entitled to summary judgment.
Plaintiff AIC argued below that Jamestown waived the protection of the prior
notification requirement in § C-68 of the Charter by failing to allege it explicitly
enough as an affirmative defense in its pleadings. However, under New York law,
municipal prior notification requirements are:
a condition precedent which [a] plaintiff is required to
plead and prove to maintain an action against a [the
Katz v. City of New York, 87 N.Y.2d 241, 243 (1995) (citations omitted); see e.g., 1B
Hon. Leon D. Lazer, et al., New York Pattern Jury Instructions – Civil § 2:225A (3rd
ed. 2012). As a condition precedent to maintaining a negligence action upon which
plaintiff had the burden of proof, the prior notification requirement in § C-68 of the
Charter is not an affirmative defense. Katz v. City of New York, 87 N.Y.2d at 243.1
In a similar case, the Village of Brocton, New York, won dismissal at the
pleading stage of a negligence claim against the Village for flood damage caused by
a culvert that was clogged by a log because the plaintiff had not alleged and could
not carry its burden of proof that the Village’s prior notification law had been
satisfied. DelCamp v. Village of Brocton, 270 A.D.2d 842 (4th Dep’t 2000). The
plaintiff alleged a Village highway superintendent had actual knowledge of a log
obstructing the culvert and had enough time to prevent the residential flooding
Because the Court’s subject-matter jurisdiction is diversity of citizenship, state law
determines whether a claim is an affirmative defense. Lazard Freres & Co. v. Protective Life
Ins. Co., 108 F.3d 1531, 1540-41 (2d Cir.1997); see also United States v. McCombs, 30 F.3d
310, 323-24 (2d Cir. 1994) (“Presumptions and other matters related to the burden of proof are
considered matters of substantive law, governed by the law of the jurisdiction whose
substantive law applies to the merits of the question in issue.” Id.)
damage suffered by the plaintiff. Actual knowledge of the obstruction that caused
the flooding damage did not save the plaintiff’s negligence claim from dismissal for
failure to plead and prove satisfaction of the Village’s prior notification requirement.
On the same reasoning, because Jamestown did not receive written notice
satisfying Jamestown Charter § C-68 concerning a dangerous or obstructed
condition of the Camp Street culvert prior to the flood damage suffered by the WCA
Hospital on August 9, 2009, plaintiff AIC has no negligence cause of action against
Jamestown. It was clear error for the R&R to find that a material question of fact
regarding foreseeability of flood damage to the WCA Hospital should preclude entry
of summary judgment on this ground. “[F]oreseeability bears on the scope of a duty,
not whether a duty exists in the first place.” Holdampf v. AC&S, Inc., 5 N.Y.3d 486,
494 (2005); see 1A Hon. Leon D. Lazer, et al., New York Pattern Jury Instructions –
Civil § 2:12, p.233 (3rd ed. 2012) (“Unlike foreseeability and causation, the existence
and scope of an alleged tortfeasor’s duty is, in the first instance, a legal question for
determination by the courts, . . . [citations omitted].”) The legislative limit on
Jamestown’s duty of care in § C-68 of the Jamestown Charter made foreseeability
immaterial to the threshold legal issue of whether a duty existed.2
Plaintiff AIC also argued below, in the alternative, that its negligence claim
Unfortunately, neither party brought the Village of Brocton case to the attention of the
Court. Jamestown could have prevailed on a simple motion for judgment on the pleadings
pursuant to Fed. R. Civ. P. 12(c). Plaintiff AIC, since its business is underwriting casualty risk,
could have cut its losses.
was not barred by § C-68 of the Jamestown Charter because the claim was within
the affirmative-negligence exception to prior notification laws. Compare San Marco
v. Village/Town of Mount Kisco, 16 N.Y.3d 111 (2010) (a fact question whether
municipal snow-removal efforts caused black ice to form, upon which a pedestrian
fell and was hurt, precluded summary judgment based upon a lack of compliance
with a prior notification requirement), with Horan v. Town of Tonawanda, 83 A.D.3d
1565, 1566-67 (4th Dep’t 2011) (affirmative-negligence exception does not apply to
conditions that develop over time).
However, plaintiff AIC has no evidence Jamestown took an affirmative step
that caused the clog of the Camp Street culvert when the WCA Hospital was flooded
on August 9, 2009. Plaintiff insists it is entitled to a jury trial to contend that the clog
of the Camp Street culvert occurred because Jamestown was not conducting
frequent, scheduled inspections of the culvert for debris that might have been
collecting in or at the mouth of the culvert and that Jamestown was, by failing to act,
a substantial factor in bringing about the clog that caused the flood damage to the
hospital. This alleged failure of watchfulness over the culvert would be passive
malfeasance, not evidence of an affirmative act of negligence.
More specifically, plaintiff AIC has no evidence even suggesting Jamestown
did something that a reasonably watchful municipality would recognize more or less
immediately resulted in danger or a risk of obstruction of the culvert that reasonable
steps would avert. Plaintiff has no evidence upon which a reasonable jury could rely
to find that Jamestown engaged in a particular activity, or performed specific acts,
that caused the tree limbs and branches to clog the Camp Street culvert and that
was a substantial factor in bringing about the August 9, 2009 flood damage to the
WCA Hospital. The affirmative-negligence exception to the prior notification
requirement in Charter § C-68 is inapplicable and does not save plaintiff’s
Plaintiff AIC also argued below that the affirmative-negligence exception to
the prior notification requirement applies because Jamestown built and
reconstructed the Camp Street culvert. Negligent design at some time in the past is
hardly an act of affirmative negligence under applicable New York law and prior
notification pursuant to Charter § C-68 would be required of a specific defect — such
as failure to install a debris-collection gate at the mouth of the culvert, for example –to potentially give rise to a duty of care running from Jamestown to the WCA
Hospital. Because Jamestown was not given the prior written notification of any
defect in the Camp Street culvert required by § C-68 of its Charter, plaintiff has no
negligence cause of action and the Court grants summary judgment to Jamestown.
3. Common law limits on the duty of care.3 In the absence of a prior
written notification requirement, a municipality must still be aware or constructively
aware of a dangerous or obstructed condition of a storm water drainage system
before the municipality will incur negligence liability for breaching a duty of care to
This overview of the common law limits on the municipal duty of care regarding storm
water drainage systems assumes that no legislative prior notification limit is applicable. It also
assumes that conditions of which a municipality has constructive knowledge are legally
equivalent to conditions of which a municipality reasonably should be aware. See Harris v.
Village of East Hills, 41 N.Y.2d 446, 449-50 (1977).
maintain the system. See generally, 1B Hon. Leon D. Lazer, et al., New York
Pattern Jury Instructions – Civil § 2:225 (3rd ed. 2012) (pattern jury instruction for
municipal subsurface structures). The requirement of actual or constructive
knowledge of a danger or obstruction before negligence liability will attach serves to
limit municipalities’ common law duty of care to conditions that municipalities
reasonably may be able to fix or otherwise address; New York municipalities are not
insurers against all casualty losses. See e.g., Azizi v. Village of Croton-on-Hudson,
79 A.D.2d 953, 954-55 (2d Dep’t 2010); Biernacki v. Village of Ravena, 245 A.D.2d
656, 664 (3d Dep’t 1997); see Gillette Shoe Company, Inc. v. City of New York, 58
N.Y.2d 853, 856 (1983) (same for potable water system). In a related context, the
New York Court of Appeals has observed:
To hold otherwise would be to subject municipalities to
open-ended liability of enormous proportions and with no
clear outer limits. The imposition of such liability, in addition
to posing a crushing financial burden, might well discourage
municipalities from undertaking activities to promote the
general welfare. It could also impede municipal officials
from allocating resources where they would most benefit the
public, by making the prime concern the avoidance of tort
liability rather than the promotion of the public welfare. The
courts should not take it upon themselves to, in effect,
reorder municipal priorities.
O’Connor v. City of New York, 58 N.Y.2d 184, 191 (1983) (citation omitted).
Even for a failure-of-inspection negligence theory, the municipality must
usually be shown to have disregarded a known or apparent dangerous or obstructed
condition in a drainage system before it will incur liability. See e.g., Pet Products,
Inc. v. City of Yonkers, 290 A.D.2d 546, 547 (2d Dep’t 2002); Biernacki v. Village of
Ravena, 245 A.D.2d 656, 664 (3d Dep’t 1997); but see Bertacchi v. City of New
York, 30 Misc.3d 567 (N.Y. Sup., Rich. Co. 2010) (municipality held immune from
liability for exercising discretion not to inspect and maintain storm water drainage
system.) The common law duty of watchfulness does not require a municipality to
address dangers or obstructions of which the municipality is not actually aware, or of
which it would not be aware while being reasonably watchful. See e.g., Dewitt
Properties, Inc. v. City of New York, 44 N.Y.2d 417, 423-25 (1978) (potable water
system); see Fireman's Fund Ins. Co. v. County of Nassau, 66 A.D.3d 823, 824 (2d
Dep't 2009). For example, “[e]vidence of flooding caused by the back flow of a
sewer system, standing alone, is insufficient to maintain an action against a
municipality to recover damages for injury to property.” Linden Towers Co-op No. 4
v. City of New York, 272 A.D.2d 587 (2d Dep't 2000); see Tang v. Village of
Geneseo, 303 A.D. 2d 987 (4th Dep’t 2003) (same for sanitary sewer back up).
4. Common Law Limit on Jamestown’s Duty to the WCA Hospital. The
New York Court of Appeals articulated Jamestown’s common law duty of municipal
watchfulness over its storm water drainage system long ago:
The mere absence of [actual] notice does not necessarily
absolve the city from the charge of negligence. Its duty to
keep its sewers in repair is not performed by waiting to be
notified by citizens that they are out of repair, and repairing
them only when the attention of the officials is called to the
damage they have occasioned by having become
dilapidated or obstructed; but it involves the exercise of a
reasonable degree of watchfulness in ascertaining their
condition, from time to time, and preventing them from
becoming dilapidated or obstructed. Where the obstruction
or dilapidation is an ordinary result of the use of the sewer,
which ought to be anticipated and could be guarded against
by occasional examination and cleansing, the omission to
make such examinations and to keep the sewers clear, is a
neglect of duty which renders the city liable.
McCarthy v. City of Syracuse, 46 N.Y. 194, 197-98 (1871). McCarthy remains an
accurate general statement of New York municipal negligence law. See 1B Hon.
Leon D. Lazer, et al., New York Pattern Jury Instructions – Civil § 2:225 (3rd ed.
2012) (pattern instruction for municipal subsurface structures); see e.g., Holmes v.
Incorporated Village of Piermont, 54 A.D.3d 809 (2d Dep’t 2008). Accordingly, even
absent a prior notification requirement, no negligence cause of action to recover for
property damage may be maintained against Jamestown for the allegedly
dangerous or obstructed condition of the Camp Street culvert unless Jamestown
was aware, or constructively aware, that the culvert was dangerous or obstructed a
reasonable period of time before the culvert clogged on August 9, 2009. McCarthy,
The R&R recommended summary judgment be granted to Jamestown on the
ground that plaintiff AIC lacks evidence that Jamestown was actually aware of a
problem with the Camp Street culvert. As explained above, actual knowledge was
unnecessary if Jamestown had constructive knowledge as a result of past
obstructions or of conditions creating an unreasonable risk that the Camp Street
culvert would become obstructed. McCarthy v. City of Syracuse, 46 N.Y. 194
(1871). Plaintiff objects to the R&R on the ground that the R&R applied an incorrect
legal standard by requiring evidence of actual knowledge of a problem with the
Camp Street culvert to find a duty of care running to the WCA Hospital. Plaintiff
contends, nevertheless, that it has proffered enough evidence of actual knowledge
to raise a material question of fact whether Jamestown failed adequately to inspect
and maintain the culvert.
Plaintiff AIC contends that Jamestown’s letter to the DEC stating that the
Camp Street culvert “periodically traps organic debris . . . causing a water backup”
is legally sufficient support for a jury finding that Jamestown had the knowledge
required to trigger the duty of care. Plaintiff contends it would be reasonable for a
jury to infer from that statement, and all of the attendant circumstances, that
Jamestown was actually aware storm water and runoff were backing up behind
trapped organic debris at the culvert before the August 9, 2009 clog and flooding.
The Court disagrees.
Jamestown’s letter to the DEC about the Camp Street culvert was dated two
months after the August 9, 2009 clog and flooding of the WCA Hospital when
Jamestown was seeking authorization from the DEC to take post-clogging remedial
measures at the mouth of the culvert. All of the testimony, documentary evidence,
and circumstantial evidence plaintiff AIC has marshaled during pretrial discovery
tend to show that Jamestown did not have actual knowledge of a potential clogging
problem at the culvert.
The uncontroverted direct evidence about Jamestown’s statement in the DEC
letter that the culvert had “periodically trap[ped] organic debris . . . causing a water
backup” is that the statement does not refer to any instance of trapped debris
known to Jamestown at any time before the August 9, 2009 clog and flooding.
Under these circumstances, it would be speculative and incorrect for a jury to infer
that Jamestown had actual knowledge of past obstructions or of a tendency of the
Camp Street culvert to become obstructed based upon Jamestown’s October 9,
2009 letter to the DEC. Plaintiff AIC failed to find evidence during pre-trial discovery
to call into doubt the uncontroverted evidence that Jamestown’s statement in the
DEC letter does not refer to any instance of trapped debris at any time before the
August 9, 2009 clog and flooding. Plaintiff lacks sufficient evidence even for a
threshold showing of a legally recognized duty of care.
Plaintiff AIC has not specifically objected to the R&R by contending it has
sufficient evidence that Jamestown had constructive knowledge of circumstances
giving rise to an unreasonable risk of clogging in or at the Camp Street culvert to
trigger Jamestown’s duty of care to the WCA Hospital.4 Instead, plaintiff argues —
without admissible expert opinion or other municipal standard of care evidence to
support the argument — that Jamestown’s practices for maintaining its storm water
drainage system, and the Camp Street culvert, were insufficient because inspection
Plaintiff AIC stresses evidence that the WCA Hospital was vulnerable to flooding as if
that evidence alone triggers Jamestown’s duty of care to the hospital. Plaintiff overlooks that
“foreseeability of harm does not define duty.” 532 Madison Ave. Gourmet Foods, Inc., v.
Finlandia Center, Inc., 96 N.Y. 280, 289 (2001). Plaintiff suggested to the Magistrate Judge
below that the hospital had a “special relationship” with Jamestown because of the known
risks of flooding to the hospital and that these risks and the “special” relationship were
sufficient to trigger Jamestown’s duty of care with respect to the Camp Street culvert, but
plaintiff established no legally recognized special relationship and has given up the suggestion
in its objections to the R&R. See Davis v. County of Onondaga, 31 A.D.2d 1156, 1157-58 (4th
Dep’t 2006); see also, O’Connor v. City of New York, 58 N.Y.2d 184, 188-92 (1983) (elements
of special relationship).
and cleaning were not scheduled strictly enough, and with enough paperwork, to
have prevented the August 9, 2009 clog and flooding at the hospital, as if such
speculation could give rise to a triable issue of material fact whether Jamestown
owed the WCA Hospital a duty of care with respect to the Camp Street culvert.
As stated above, evidence of the “flooding caused by the back flow of a
sewer system, standing alone, is insufficient to maintain an action against a
municipality to recover damages for injury to property.” Linden Towers Co-op No. 4
v. City of New York, 272 A.D.2d 587 (2d Dep't 2000). “Without a duty running
directly to the injured person there can be no liability in damages, however careless
the conduct or foreseeable the harm.” Lauer v. City of New York, 95 N.Y.2d 95, 100
(2000). Because plaintiff has no proof Jamestown had actual or constructive
knowledge of a problem with the Camp Street culvert, it lacks evidence sufficient to
a threshold showing of Jamestown’s duty of care with respect to the culvert running
from Jamestown to the WCA Hospital.
For all of the foregoing reasons, the Court adopts the recommendation of
Magistrate Judge Hugh B. Scott to grant summary judgment pursuant to Rule 56 of
the Federal Rules of Civil Procedure to defendant City of Jamestown and against
plaintiff The American Insurance Company. The Court has deemed plaintiff AIC’s
objections submitted without oral argument pursuant to Rule 78(b) of the Federal
Rules Civil Procedure. The Court carefully considered all of the arguments raised
by the parties and concluded that oral argument was unnecessary. The Clerk shall
enter judgment for defendant The City of Jamestown.
s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE
DATED: October 22, 2012