New York Law Review

Tag: road maintenance

  • Wittorf v. City of New York, 22 N.Y.3d 473 (2013): Distinguishing Governmental vs. Proprietary Functions in Municipal Liability

    Wittorf v. City of New York, 22 N.Y.3d 473 (2013)

    When a municipality’s employee is negligent while performing an act integral to a proprietary function, such as road repair, the municipality can be held liable under ordinary negligence principles, even if the specific negligent act resembles a governmental function like traffic control.

    Summary

    Rhonda Wittorf sued the City of New York for injuries sustained while bicycling through a Central Park underpass. A Department of Transportation supervisor, Bowles, had told Wittorf it was “okay to go through,” despite knowing about dangerous depressions in the roadway. The jury found Bowles negligent, apportioning 60% fault to the City. The City moved to set aside the verdict, arguing Bowles was performing a governmental function (traffic control) and thus immune from liability. The Supreme Court granted the motion, but the Court of Appeals reversed, holding that Bowles’s actions were integral to the proprietary function of road repair, subjecting the City to ordinary negligence standards.

    Facts

    On November 5, 2005, DOT supervisor Donald Bowles and his crew arrived at Central Park’s 65th Street transverse to repair roadway defects. Bowles closed the west entrance to vehicular traffic. Rhonda Wittorf and Brian Hoberman arrived on bicycles and asked if they could proceed. Bowles said it was “okay to go through.” While riding through an underpass, Wittorf encountered a depression, attempted to avoid it, hit another, and fell, sustaining injuries. The roadway was dark and the depressions were difficult to see.

    Procedural History

    Wittorf sued the City of New York. The jury found the roadway unsafe but also that the City lacked prior written notice of the condition. It also found that the City did not cause or create the condition by an affirmative act of negligence. However, the jury found Bowles negligent and apportioned fault. The Supreme Court granted the City’s motion to set aside the verdict, finding Bowles was performing a governmental function. The Appellate Division affirmed. The Court of Appeals granted plaintiff leave to appeal.

    Issue(s)

    Whether the City of New York was engaged in a proprietary function when its Department of Transportation supervisor, in preparation for roadway repairs, told a bicyclist it was “okay to go through” a closed roadway containing dangerous conditions, such that the City can be held liable for the supervisor’s negligence under ordinary negligence principles.

    Holding

    Yes, because the supervisor’s action was integral to the proprietary function of road repair, subjecting the City to ordinary negligence standards.

    Court’s Reasoning

    The Court of Appeals relied on the governmental/proprietary function test outlined in Applewhite v Accuhealth, Inc., noting that a municipality is subject to ordinary negligence rules when engaged in a proprietary function, defined as activities that “essentially substitute for or supplement traditionally private enterprises.” The Court distinguished governmental functions as those undertaken for public safety under general police powers. Historically, road maintenance has been performed by both private entities and local governments and is therefore typically a proprietary function. The court cited precedents establishing a municipality’s duty to maintain roads in a reasonably safe condition and to provide adequate warnings of hazards. While prior written notice laws can limit liability, the nature of the function remains proprietary when performed by highway maintenance personnel. The Court distinguished Balsam v Delma Eng’g Corp., where police traffic control at an accident scene was deemed governmental. In Balsam, there was no proprietary duty to maintain the property. Here, Bowles’s actions were directly connected to the impending road repair, a proprietary function. The court emphasized that Bowles’ act of closing the entry to vehicular travel was integral to the repair job. Therefore, the jury could assess the City’s conduct under ordinary negligence rules. The case was remitted to the Supreme Court to consider the weight of the evidence.

  • Lopes v. Rostad, 45 N.Y.2d 617 (1978): Non-Delegable Duty to Maintain Safe Roads Applies Only to Traveling Public

    Lopes v. Rostad, 45 N.Y.2d 617 (1978)

    A county’s non-delegable duty to maintain its roads in a reasonably safe condition extends to the traveling public but not to employees of an independent contractor injured while working on a road construction project.

    Summary

    This case addresses whether a county’s non-delegable duty to maintain safe roads extends to employees of an independent contractor working on a county road construction project. The New York Court of Appeals held that this duty is intended to protect the traveling public, not the contractor’s employees. The court reasoned that the contractor, being in control of the work site, is responsible for the safety of its employees. Allowing recovery would improperly shift responsibility from the employer to the county. This decision limits the scope of the county’s liability under Highway Law §§ 102 and 139.

    Facts

    Zara Contracting Co. was hired by Nassau County for a sewer construction project. Manuel Lopes and Vito Martino, Zara employees, were injured when struck by a car driven by Harold Rostad while repairing a manhole. The accident occurred on a county highway. A red flag was the only warning device present. The contract between Zara and the county stipulated that Zara was responsible for providing warning signs and barricades.

    Procedural History

    Lopes’ estate and Martino sued Rostad and Nassau County. The County then brought a third-party claim against Zara for indemnification. The jury found Rostad 70% liable and the County 30% liable. The trial court granted the County indemnification from Zara. The Appellate Division affirmed. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the non-delegable duty of a county to maintain its roads in a safe condition, which applies to the traveling public, extends to employees of an independent contractor who suffer injuries caused in part by the contractor’s negligence while working on a county road construction project.

    Holding

    No, because the county’s non-delegable duty to maintain its roads in a safe condition is intended to protect the traveling public, and not employees of an independent contractor working on a construction project.

    Court’s Reasoning

    The court reasoned that while Highway Law §§ 102 and 139 impose a non-delegable duty on the county to maintain its roads, the legislative intent behind these statutes was to protect the traveling public. The court stated, “In many cases the evident policy of the legislature is to protect only a limited class of individuals. If so, the plaintiff must bring himself within the class in order to maintain an action based on the statute.” The court emphasized that since the duty’s inception, courts have consistently held that it is intended to safeguard those who travel the roadways, citing Storrs v. City of Utica, 17 N.Y. 104, 108. The court reasoned that extending this duty to employees of independent contractors would be inappropriate because the contractor is best positioned to maintain safe working conditions. “Being in control of the daily operation of the project, the employer, not the governmental body with which it is under contract, is in the best position to maintain safe working conditions and to remedy whatever dangers may exist.” The court distinguished situations where the independent contractor’s negligence injures a member of the traveling public, in which case the county would still be liable. Here, the injury was to the contractor’s own employees due to the contractor’s negligence. The court noted that the contract placed responsibility for warning devices on the contractor (Zara), further supporting the conclusion that the County was not liable. The court explicitly declined to address the County’s liability under Section 241 of the Labor Law.