Rubino v. City of New York

OPINION OF THE COURT

Ellerin, J.

The proof presented in this case was sufficient to establish prima facie, that the defendant Board of Education acted negligently in . its proprietary capacity as landlord of-the school premises where plaintiff teacher was injured, and that, therefore, the trial court improperly granted said defendant’s motion to dismiss at the close of plaintiff’s case.

The subject accident occurred on April 21, 1980 in the school yard of the Monterrey Annex of P.S. 59 in The Bronx while plaintiff, Rose Rubino, a special education teacher employed by the defendant Board of Education, was supervising a class of learning disabled children. The Annex was located a few blocks from the school’s main building where Ms. Rubino had previously served as a regular classroom teacher.

Commencing with the September 1979 term, Ms. Rubino functioned as a "cluster teacher” which involved the covering of 25 classes a week during which she taught the course "Learning Through Movement”. While most of her classes were held in the main building, on two days a week Ms. Rubino was also assigned to classes at the Annex. On the day of the accident, she followed the schedule that was typical of her activities on the days that she worked at the Annex. First she taught classes at the main building and then traveled to the Monterrey Annex to handle two classes there, one before and one after lunch. On the day in question, which was characterized as a beautiful spring day, she promised the latter class that she would take them outside into the school yard if they finished their work before the period ended and she did so at about 2:15 p.m. Mrs. Rubino observed the activities of the children while she was seated in a chair placed so as to keep propped open the school door which could not be opened from the outside. After they had been in the yard for some 5 to 10 minutes, a heavy cylindrical metal object came hurtling through the air, striking Mrs. Rubino on the left knee and causing her the physical injuries for which she seeks recovery herein.

The uncontradicted testimony at the trial established that this was far from an isolated incident of foreign objects or debris being thrown into the school yard from the neighboring apartment building and lot. Ms. Rogan, a teacher who had taught at the Annex from 1972 to 1978, prior to plaintiff’s presence there, testified to the number of such incidents that occurred during the period that she worked at that facility. She indicated that she had reported these incidents to Mrs. Bennett, the then assistant principal in charge of the Annex, who in turn had individually warned and directed the teachers then assigned to the school not to use the yard. It appears that this directive was not enforced nor adhered to for any extended period.

Testimony was also given by Ms. Carbone and Ms. Dolly, two teachers who were assigned to the school during 1980, with respect to incidents of cans, bottles and other objects being hurled into the school yard from the empty lot and building adjacent to the school yard during the period shortly before the date that plaintiff suffered her injury. It was noted by Ms. Dolly that the empty lot next to the yard was "full of junk” and "just a gold mine” for those desirous of propelling objects into the school yard. Both teachers testified that in March of 1980 they had notified Ms. Caneja, the teacher in charge of the Annex at that time, about these incidents. Aside from thanking the person "for telling me”, it does not appear that Ms. Caneja took any action whatever, either by way of directing that the yard not be used or by way of a simple warning, either oral or written, to advise teachers on the premises that this situation existed and was a potential source of danger to those using the yard.

It is undisputed that the plaintiff, Ms. Rubino, who taught at the Annex only two days a week in the course of a hectic schedule, had no personal knowledge of the history of these incidents. Moreover, she had received no warning or notice from the teacher in charge about this condition, there were no discussions about such matter at staff meetings nor were any instructions or regulations, oral or written, issued that either prohibited use of the school yard or in any way alerted a teacher to the risks attendant upon the use of the yard.

In granting the motion to dismiss, the trial court relied upon the authorities cited in the dissent and adopted the position urged by defendants, that is, that they were acting in the performance of a governmental function in the operation of the school premises and were thus immune from liability absent a showing of a special duty owed to the individual claimant. The dissent is similarly posited.

We disagree and conclude that the instant situation does not involve the performance of a governmental function but, rather, arises from an alleged breach of duty by the defendant Board of Education in its proprietary capacity as the landlord of the school yard premises in issue.

The dichotomy between "governmental” and "proprietary” functions exercised by a public entity has evoked extensive judicial interpretation within the contexts of particular factual settings which are often sought to be inappropriately extended to factual predicates which may bear certain superficial similarities but which substantively fall into a wholly different category. This is pointedly illustrated here by the dissent’s reliance on the decisions in Glick v City of New York (53 AD2d 528, affd 42 NY2d 831) and Vitale v City of New York (60 NY2d 861) which are similar to the instant case only in that those cases, too, involved injuries to school teachers while on school premises. While in the Glick case the teacher was raped by a student who had somehow gained entry into the normally locked lady’s room and in the Vitale case the teacher was assaulted by one of the students as he sought to break up an altercation in the hallway of the school, the underlying thrust of the claim in each case was the failure to provide adequate security in the general "police protection” sense of preserving law and order and controlling the activities of criminal wrongdoers. This, of course, has classically been considered a "governmental function” involving the allocation and deployment of available police resources. (See, Bass v City of New York, 38 AD2d 407, 416, affd 32 NY2d 894; Riss v City of New York, 22 NY2d 579, 581.) That, however, is not the basis of the instant action. The defendant Board is not being charged with negligence because it failed to have police or security guards stationed in the school yard or surrounding area to prevent or deter object-propelling incidents. Such activities clearly fall within the "governmental function” of providing police protection in a general sense and would afford no basis for liability to a particular individual. The charge of negligence here is quite different. It is predicated upon the defendant’s failure in its proprietary capacity as landlord, to issue warnings, or otherwise take appropriate action, with respect to the known and foreseeable dangers posed by incidents of this type to those, such as plaintiff, who could be expected to use the school yard property controlled by defendant.

Recent decisions by our Court of Appeals, rendered after Trial Term’s dismissal of the instant case, have brought into sharper focus the demarcation between "governmental” and "proprietary” functions in a manner particularly relevant to the situation here in issue. In Miller v State of New York (62 NY2d 506, 510, 511), then Chief Judge Cooke reiterated the long-standing principle that "[p]ublic entities remain immune from negligence claims arising out of the performance of their governmental functions, including police protection, unless the injured person establishes a special relationship with the entity”, but emphasized that "when the State acts in a proprietary capacity as a landlord, it is subject to the same principles of tort law as is a private landlord”.

That perspective has been further strengthened by the decision in Schrempf v State of New York (66 NY2d 289). In rejecting the State’s argument that, absent a special duty to the party injured, it could not be held liable for claims arising out of its providing medical and psychiatric care to the mental patient who inflicted the harm, Chief Judge Wachtler made clear (p 293) that the governmental activities to which immunity attached are those "such as providing police and fire protection or law enforcement generally” and not those where the State engages in a proprietary function in which case it is held to the same duty of care as private individuals and institutions engaging in the same activity.

The underpinning of the dissent is that no liability can attach here because "the operation of the common schools of the City of New York is a governmental function” and the Board has assumed no special relationship to the plaintiff. This posture, however, ignores the import of the holding in Miller v State of New York (supra, at p 511) that a public entity can act in a dual role, on the one hand in a proprietary capacity as a landlord by virtue of ownership and control, in that case of the university campus, while at the same time also acting in a governmental capacity.

To assist in discerning the character of particular actions when a public entity engages in such dual role, the opinion in Miller suggests the following mechanism for qualitative measurement: "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.” (62 NY2d, at pp 511-512; emphasis added.)

Thus, in the Miller case, the failure to lock the outer doors of the State-operated college dormitory, which resulted in the rape of the student plaintiff by an intruder, was held not to involve the governmental function of providing or maintaining general police protection but, rather, to relate to an issue of security falling within the proprietary functions of a landowner who is charged with " ' " '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’ ” ’ ” (supra, at p 513, citing Preston v State of New York, 59 NY2d 997, 998, quoting Basso v Miller, 40 NY2d 233, 241). This standard imposes upon a landlord the duty to maintain minimal security measures, related to a specific building itself, in the face of foreseeable criminal intrusion upon tenants. (Miller v State of New York, supra, at p 513, citing Nallan v Helmsley-Spear, Inc., 50 NY2d 507.)

The instant case, too, clearly falls within that segment of the "continuum of responsibility” deriving from defendant Board’s proprietary functions as the landlord of the school yard where the injury occurred. Having knowledge of the hazardous condition caused by foreign objects and debris being periodically hurled into its school yard from the adjacent properties, the defendant, as any landlord, was under a duty to take such steps in the management of its property as were reasonably necessary to prevent injuries to teachers and students from such foreseeable dangers. Toward that end, there were several possible avenues available, none of which would have constituted an unreasonable burden upon the Board. It could have prohibited the use of the yard by teachers and students either by way of an appropriate locking device that would have secured the door from inside the building as well as from outside, or by way of enforcing appropriate warnings and/or directives that the yard not be used, or both. In this case, not only were no such steps taken, but defendant failed in any way to warn plaintiff or provide her with even minimal information as to the periodic occurrence of such incidents which would, at least, have enabled her to make a knowledgable decision as to whether or not to use the yard in light of such foreseeable risks and dangers.

Contrary to the defendant Board’s assertion, obligations to adequately warn of known risks and dangers in the use of a school yard and/or to take appropriate steps to prevent use by teachers and students of that yard in light of such risks cannot be equated to the governmental function of providing or maintaining police protection generally. The wrongdoing charge here in no way involves the allocation or deployment of police resources or activities but, on the contrary, stems from a failure to fulfill proprietary duties traditionally imposed on landlords or landowners to maintain their property in a reasonable safe condition in view of all the circumstances, including the likelihood of injury to others and the burden of avoiding the risk. (Miller v State of New York, supra; Preston v State of New York, supra, pp 998-999; cf. Crosland v New York City Tr. Auth., 110 AD2d 148.)

Accordingly, the judgment, Supreme Court, Bronx County (Callahan, J.), entered on April 27, 1984, should be modified, on the law, insofar as it directs a dismissal of the complaint against the defendant Board of Education, the complaint should be reinstated, a new trial directed as against that defendant, and, as so modified, should otherwise be affirmed, without costs or disbursements.