Lynch v State of New York

[*1] Lynch v State of New York 2005 NY Slip Op 52383(U) [21 Misc 3d 1127(A)] Decided on September 23, 2005 Ct Cl Lack, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 23, 2005
Ct Cl

Cornelius Lynch, Jr. and HELEN LYNCH, Claimants,

against

The State of New York, Defendant.



105839



APPEARANCES:

For Claimants:

Elovich & Adell

By: Glenn L. Sabele, Esq.

For Defendant:

Eliot Spitzer, New York State Attorney General

By: Gail P. Pierce-Siponen, Assistant Attorney General and Diana Dykes, Assistant Attorney General

James J. Lack, J.

This claim arises from the injuries to Cornelius Lynch, Jr. (hereinafter "claimant") due to the alleged negligence of the State of New York (hereinafter "State"). The claim is based upon the State's failure to protect claimant in that the State negligently secured an accident site. The claim of Helen Lynch is derivative in nature. The trial of this claim was bifurcated and this decision pertains solely to the issue of liability.

While some discrepancies exist in the details of the circumstances of the accident that led to claimant's injury, the general facts as to the incident are not in dispute. The claim arose on October 19, 2001, at approximately 11:15 p.m. on the eastbound side of the Southern State Parkway [FN1] near Exit 20N. Prior to this time, a motorist, Orimoloye Adeniran (hereinafter "Bode"), was driving eastbound on the Southern State Parkway. His vehicle was struck by another vehicle from behind and Bode's vehicle spun around and came to rest on the center median, resting against the guardrail and facing westbound. New York State Trooper Suzanne Guacci (hereinafter "Tpr. Guacci") responded to the accident. Tpr. Guacci parked her vehicle on the center median west of Bode's vehicle facing eastbound. According to Tpr. Guacci, she kept her headlights on and turned on her roof lights and waggle lights. In addition to Bode, other civilians were standing on the center median. These people had witnessed the accident, pulled their vehicles onto the eastbound shoulder [*2]of the Southern State Parkway and then ran across to check on Bode.

Claimant worked for Ogden Brothers Towing and Collision (hereinafter "Ogden") at the time of the accident. Ogden had a contract with the State for towing vehicles on this portion of the Southern State Parkway. Claimant heard the call about the accident on his police scanner and responded to the scene. Eventually, claimant pulled his tow truck in front of Bode's vehicle, facing westbound on the eastbound portion of the Southern State Parkway.

In response to a request from Tpr. Guacci, another trooper, Tpr. Burroughs responded to the accident scene. Initially, he parked his vehicle by Tpr. Guacci's vehicle on the center median. Out of concern for the safety of the civilians on the center median, Tpr. Burroughs transported the civilians to the eastbound shoulder of the Southern State Parkway.

During this time, the traffic on the Southern State Parkway was still passing. The speed limit on this road is 55 m.p.h. According to witness statements, there are varying accounts of the traffic volume. Some of the witnesses described it as light to normal, while others described it as normal to heavy. Danielle Virgil (hereinafter "Virgil") was operating a motor vehicle in an eastbound direction on the Southern State Parkway. At or about the accident scene, the vehicle in front of Virgil applied his brakes. Virgil testified that she applied her brakes hard. Virgil lost control of her vehicle, sending it toward the center median. Virgil's vehicle hit the tow truck into the guardrail. Claimant and Tpr. Guacci were injured as a result of this second accident.

Claimant testified that he had conversations with Tpr. Guacci before moving his truck from the shoulder to the center median. He further testified that traffic was stopped for him when he moved to the center median. Claimant indicated that he waited to begin hooking up Bode's vehicle until Tpr. Guacci told him it was okay to hook up the car.

Tpr. Guacci claims that she did not call for a tow truck and did not have any conversation with claimant prior to the second accident.

In the ownership of property, the State of New York serves two functions. The first role casts the State in a proprietary function and the other role is that of a governmental function (Miller v State of New York, 62 NY2d 506). The functions are not mutually exclusive. Instead, the functions are opposite ends of a continuum (id).

A governmental entity's conduct may fall along a continuum of responsibility to individuals and society deriving from its governmental and proprietary functions. This begins with the simplest matters directly concerning a piece of property for which the entity acting as landlord has a certain duty of care, for example, the repair of steps or the maintenance of doors in an apartment building. The spectrum extends gradually out to more complex measures of safety and security for a greater area and populace, whereupon the actions increasingly, and at a certain point only, involve governmental functions, for example, the maintenance of general police and fire protection. Consequently, 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 State's alleged negligent action falls into, either a proprietary or governmental category. (id at 511 - 512).

In regard to its proprietary function, "the State must act as a reasonable man in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk' (Basso v Miller, 40 NY2d 233, 241, quoting Smith v Arbaugh's Rest., 469 F2d 97, 100)" (Preston v State of New York, 59 NY2d 997, 998). The State's proprietary function subjects it to the same rules of liability [*3]as apply to a private citizen.

On the other end of the continuum, is the State's governmental function. The State "remains immune from negligence claims arising out of governmental functions such as police protection unless a special relationship with a person creates a specific duty to protect, and that person relies on performance of that duty" (Price v New York City Hous. Auth., 92 NY2d 553, 557 - 558).

In Pelaez v Seide, 2 NY3d 186, 199-200 the Court of Appeals stated

[a] special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction or control in the face of a known, blatant and dangerous safety violation (see [Garrett v Holiday Inns, 58 NY2d 253], 261-262). None apply here.

Previously, defendant had moved for summary judgment (M-68664). As part of that decision, the Court found that Tpr. Guacci was involved in a governmental function, in responding to the accident and handling the accident scene. The Court finds no reason to disturb this prior finding. Case law is replete with findings that officers are engaged in a governmental function in responding to accidents.

A municipality cannot be held liable for negligent acts in the performance of governmental functions unless a special relationship exists between the injured party and the municipality (Cuffy v City of New York, 69 NY2d 255). Claimant argues that the Court's prior finding of a special relationship (M-68664) is the law of the case and argues that this point is settled. Defendant argues that claimant has failed to prove the special relationship and asks the Court to consider cases decided by the Court of Appeals subsequent to this Court's summary judgment decision in this matter (see Kovit v Estate of Hallums, 4 NY3d 499 [FN2]). The Court notes that neither of these cases is on point to the situation presented here: whether or not a tow truck driver, with a contract to tow vehicles on a restricted access highway, has a special relationship with the State of New York.

The Court, however, finds the dispositive answer to this matter in the State's proprietary function, that of maintaining the roadways. To this end, the Court takes judicial notice of the laws of the State of New York and the New York Code of Rules and Regulations. The Commissioner of the Department of Transportation is empowered to make rules and regulations as may be necessary to secure the safety of the various roadways within the state system. Such power includes the ability to limit the access of certain classes of vehicles upon restricted access parkways (Transportation Law §14; Highway Law §§10 & 14; Vehicle and Traffic Law §§1621; 1625 & 1630).

The Department of Transportation has promulgated rules and regulations governing access of tow trucks on parkways in Nassau and Suffolk Counties [FN3] (17 NYCRR Part 190). In order to operate a tow truck upon the Southern State Parkway, the operator or his employer, must have a [*4]contract authorizing the truck to operate in a designated area of the parkway (17 NYCRR §190.1). The parties agree that claimant was authorized by contract to operate the tow truck in the area of the accident on the date of the accident. In relevant part, 17 NYCRR §190.9 states

The contractor shall assume all responsibility and liability for damages to persons or property that may accrue during the operation of any of contractor's vehicles on the parkway through the negligence of itself, its agent, employees, or from any other cause, and agrees to hold harmless the State of New York, the parkway authority or other authority under whose jurisdiction the parkway lies, and the employees of these agencies.

At trial, claimant testified that he was present on the parkway to remove Bode's vehicle. While it could be arguable as to what "during the operation of any of contractor's vehicles . . ." means, there can be no argument in the instant matter. At the time of the accident, claimant had just finished with controls inside the truck to hook up Bode's vehicle and was walking toward the rear of the truck. It is clear that claimant was engaged in the operation of the tow truck.

The Court grants defendant's motion to dismiss at the close of claimant's case. Claimant's remedy is to seek compensation through his employer's insurance. The State, in its proprietary function, envisioned the instant circumstances and immunized itself through statute and contract.

Based upon the foregoing, defendant's motion to dismiss is granted. The Clerk of the Court is directed to enter judgment accordingly. Footnotes

Footnote 1:The Southern State Parkway is a major east/west restricted highway on the south shore of Long Island.

Footnote 2:A second action was considered by the Court of Appeals with this matter, the case of Lazan v County of Suffolk.

Footnote 3:The accident site is located in Nassau County, New York.