In Wittorf v. City of New York, a bicycle injury case, the Court of Appeals reinstated an approximately $2 million jury verdict against the City. The court’s decision turned on the subtle, yet critical, distinction between “proprietary” and “governmental” functions. Judge Graffeo authored the opinion.
Here are the facts of this bicycle injury case:
On the morning of November 5, 2005, Donald Bowles, a supervisor with the Department of Transportation for the City of New York, and his crew arrived at the east entrance of Central Park’s 65th Street transverse to repair a roadway defect. The crew closed the east entrance to the transverse and then proceeded westbound. As they drove through an underpass, Bowles observed the problem they had been sent to correct — a series of deep depressions in the westbound lane. Having located the area in need of repair, Bowles went to the west entrance of the 65th Street transverse to close it to vehicular traffic by placing traffic cones across the roadway.
As Bowles was placing the cones, plaintiff Rhonda Wittorf and Brian Hoberman arrived at the west entrance on bicycles. Hoberman approached Bowles and asked if they could use the roadway and Bowles replied that it was “okay to go through.” As plaintiff and Hoberman rode along the transverse, they entered the underpass where the depressions were located. Because of darkness in the tunnel, plaintiff did not see one of the depressions until she was almost upon it. When she attempted to avoid the hole, she encountered another, fell and was injured. (Emphasis added.)
Plaintiff sued, and a jury found in her favor. The trial court granted the City’s motion to set aside the jury’s verdict, “agreeing with the City that Bowles was performing a governmental function when he closed the transverse to vehicular traffic.”
The Appellate Division affirmed, reasoning that “at the time of plaintiff’s accident, the repair work had not begun, and the supervisor was engaged in traffic control, which is a classic example of a governmental function undertaken for the protection and safety of the public pursuant to the general police powers.”
The Court of Appeals disagreed, and reversed.
It initially summarized the relevant law, noting the distinction between “proprietary” and “governmental” functions:
We recently explained the framework that must be used when a negligence claim is asserted against a municipality in Applewhite v Accuhealth, Inc. (21 NY3d 420 ). First, a court must decide “whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose”. If the municipality’s actions fall on the proprietary side, “it is subject to suit under the ordinary rules of negligence applicable to nongovernmental parties”. A governmental entity undertakes a proprietary role when its “activities essentially substitute for or supplement traditionally private enterprises”. “In contrast, a municipality will be deemed to have been engaged in a governmental function when its acts are undertaken for the protection and safety of the public pursuant to the general police powers”. Generally, “the distinction is that the government will be subject to ordinary tort liability if it negligently provided services that traditionally have been supplied by the private sector”. In deciding whether a function is proprietary or governmental, a court examines “the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred …, not whether the agency involved is engaged generally in proprietary activity or is in control of the location in which the injury occurred”.
Historically, the maintenance of roads and highways was performed by both private entities and local governments, with each subject to the ordinary rules of negligence. … This duty to repair applied whether the dangerous condition in the road had been caused by a municipality or a contractor. Indeed, we explained that a municipality has the obligation to warn or barricade a dangerous condition regardless of who caused or created it. …
In recognition of this duty, the courts of this State have held that a municipality can be held liable for failure to install traffic control signs; failure to repaint faded road stripes; and for inadequate warnings of ongoing road construction. … [A] municipality has a duty to maintain its roads and highways in a reasonably safe condition and liability will flow for injuries resulting from a breach of that duty. Thus, it is well established that a municipality has a proprietary duty to keep its roads and highways in a reasonably safe condition. Although liability for failing to maintain roads and highways can and has been limited by prior written notice laws, the nature of that function remains proprietary when performed by highway maintenance personnel.
Applying the law, the court held that Bowles was engaged in a “proprietary” governmental function:
Bowles was engaged in a proprietary function at the time he failed to warn plaintiff of the conditions in the transverse. Bowles was in Central Park on the day of the accident specifically to oversee the road maintenance project in his capacity as a City Department of Transportation supervisor. At the time he failed to warn plaintiff, he was blocking the transverse to vehicular traffic in preparation for that road repair. Although the maintenance work had not yet begun, Bowles and his crew could not have repaired the roadway without having closed the road to traffic. In other words, his act of closing the entry to vehicular travel was integral to the repair job — a proprietary function. Consequently, under the circumstances of this case, we conclude that Bowles was performing a proprietary function and the jury could therefore assess the City’s conduct under the ordinary rules of negligence.
Our decision in Balsam v Delma Eng’g Corp. (90 NY2d 966 ) is not to the contrary. In that case, police officers were present at an accident scene in order to ensure the safety of an injured plaintiff and the public in general. In that capacity, their “traffic control” decision not to place flares or other warnings served a governmental function. Indeed, there was no independent basis for the police officers to be at the accident scene; their task was protection of the public. We emphasized that “tort suits that test the course of action undertaken by the police in furtherance of public safety are disfavored under our law because they implicate choices about the allocation of finite police resources”. We explained that traditional performance of a function by police officers rather than private actors “is a tell-tale sign that the conduct is not proprietary in nature”. And with particular relevance to this appeal, we noted that “[no] claim is made here that the police were charged with the responsibility to physically maintain the property where plaintiff’s accident occurred — a proprietary duty”. In contrast, Bowles closed the transverse as part of his assignment to repair a defect in the roadway. Hence, his conduct stemmed from the execution of a proprietary duty.
In sum, although the City was not held liable for its failure to repair the defect in the road due to lack of adequate prior written notice, rejection of that position did not foreclose the jury’s finding that Bowles was negligent in carrying out the proprietary function of road maintenance. Therefore, the City was not entitled to judgment dismissing the complaint as a matter of law, and a remittal is necessary to consider the weight of the evidence issues. (Emphasis added.)