In Olenick v. City of N.Y., No. 23466/11, 2017 WL 1743179 (N.Y. Sup. Ct. Kings Cty. May 4, 2017) – a personal injury case by a bicyclist injured when a pedestrian stepped into his path on the Brooklyn Bridge – the court denied the City’s motion for summary judgment and to dismiss plaintiff’s complaint.
By its motion,
[t]he City argues it is entitled to summary judgment because its design of the pathways is shielded from liability by governmental function immunity. In 2008, the City created the “Markings Plan” (the Plan) to update the bicycle/pedestrian path markings on the bridge to improve visibility. The markings on the bridge on the date of the accident were among the features added to the bridge as part of the Plan. The City avers that in designing the pathway it performed “archetypical discretionary, governmental functions that are entitled to immunity,” and even if negligent, its negligence was not the proximate cause of plaintiff’s accident.
The court summarized the law:
A government entity performs a purely proprietary role when its ‘activities essentially substitute for or supplement traditionally private enterprises’ “ (Turturro, 28 N.Y.3d at 477, 45 N.Y.S.3d 874, 68 N.E.3d 693, citing Applewhite, 21 N.Y.3d at 425, 972 N.Y.S.2d 169, 995 N.E.2d 131, quoting Sebastian v. State of New York, 93 N.Y.2d 790, 793  ). It is well settled that highway planning, design and maintenance constitute proprietary functions that arise from a municipality’s proprietary duty to keep its roads and highways in a reasonably safe condition (Turturro, 28 N.Y.3d at 479, 45 N.Y.S.3d 874, 68 N.E.3d 693, citing Wittorf, 23 N.Y.3d at 480, 991 N.Y.S.2d 578, 15 N.E.3d 333; Friedman v. State of New York, 67 N.Y.2d 271, 283 ; see generally Riss v. City of New York, 22 N.Y.2d 579, 581 ; Oeters v. City of New York, 270 N.Y. 364, 368  ). Here, the Court finds the City’s development and implementation of the Plan to increase visibility on the bridge was a proprietary function analogous to roadway planning, design and maintenance (see Wittorf, 23 N.Y.3d at 480, 991 N.Y.S.2d 578, 15 N.E.3d 333). Accordingly, the City’s contention that it is entitled to summary judgment based on governmental function immunity is without merit.910 While it has long been held that a municipality owes a nondelegable duty to the public to keep its streets in a reasonably safe condition, this duty “… is measured by the courts with consideration given to the proper limits on intrusion into the municipality’s planning and decision-making functions” (Kuhland v. City of New York, 81 A.D.3d 786, 787, 916 N.Y.S.2d 637 [2d Dept 2011], citing Friedman, 67 N.Y.2d at 283, 502 N.Y.S.2d 669, 493 N.E.2d 893 [internal quotations and citations omitted] ). In the field of traffic design engineering, a municipality is generally accorded qualified immunity from liability arising out of a traffic planning decision (Kuhland, 81 A.D.3d at 787, 916 N.Y.S.2d 637; citing Turturro v. City of New York, 77 A.D.3d 732, 735, 908 N.Y.S.2d 738 [2d Dept 2010], affd 28 N.Y.3d 469, 479  ). *3 11 However, where the municipality has not conducted a study which “entertained and passed on the very same question of risk,” the doctrine of qualified immunity will not apply (Kuhland, 81 NY3d at 787, citing Weiss v. Fote, 7 N.Y.2d 579, 588 ; Turturro, 28 N.Y.3d at 480, 45 N.Y.S.3d 874, 68 N.E.3d 693; cf. Levi v. Kratovac, 35 A.D.3d 548, 549, 827 N.Y.S.2d 196 [2d Dept 2006] [holding City entitled to qualified immunity for decisions made based on a reasonable traffic plan to the roadway where the accident occurred after completion of an adequate pedestrian safety study]. Thus, the essence of the qualified immunity defense is that “[o]nce [a municipality] is made aware of the dangerous traffic condition it must undertake reasonable study thereof with an eye toward alleviating the danger” (Turturro, 28 N.Y.2d at 480, 322 N.Y.S.2d 714, 271 N.E.2d 549, quoting Friedman, 67 N.Y.2d at 284, 502 N.Y.S.2d 669, 493 N.E.2d 893) and demonstrate that “a duly authorized public planning body has entertained and passed on the very same question of risk as would ordinarily go to the jury.
While the city argued that it was “immune from liability since it developed the Plan consistent with its municipal planning and decision making functions,” the court agreed with the plaintiff that “because the City did not conduct a study prior to creating the Plan, the City cannot invoke the qualified immunity defense.”
Noting that “[s]ummary judgment is a drastic remedy that should only be granted when there are no triable issues of fact” and that “[t]he function of the court on a motion for summary judgment is not to determine credibility or resolve issues of fact, but merely determine whether issues of fact exist viewing the evidence in the light most favorable to the non-moving party,” the court concluded:
The City conceded that it was aware of pedestrian and bike congestion on the bridge and frequent collisions that cause injury. It is also undisputed that the City created the Plan without first conducting a study regarding avoidance of bicycle/pedestrian accidents and concomitant injuries. Whether the City’s failure to conduct a safety study of the pedestrian/bicycle collisions on the bridge contributed to plaintiff’s accident and injuries is a question that must be presented to a jury.
As to the City’s argument that its acts or omissions were not the proximate cause of the accident, the court held that “the question of whether a defendant’s negligence constituted a proximate cause of the accident is also a question of fact for the jury.”