On January 29, 2002, between 6:00 and 6:30 p.m., plaintiff Irving Rill, a Florida resident, tripped and fell on East 49th Street in Manhattan, sustaining personal injuries. Rill sued the City of New York and the New York City Police Department (collectively, “the City”),[1] alleging that the City caused his fall by negligently placing a concrete barrier at that location without taking appropriate precautions. The City now moves for summary judgment, arguing, first, that because its decision to place the barrier where Rill fell qualifies as a governmental function, it enjoys immunity from liability; second, that as a matter of law, the barrier must be deemed an “open and obvious” condition, vitiating the City’s general duty of care as owner of the sidewalk and streets; and finally, that Rill cannot recover because his failure to pay attention to where he was walking, not the City’s negligence, proximately caused his injuries. The first of these arguments misstates the law, while the latter two implicate genuine issues of material fact. The motion will therefore be denied.BackgroundOn January 29, 2002, after dark, Rill, an octogenarian resident of Florida, tripped and fell on a piece of metal protruding from a cement barrier situated diagonally on the south side of East 49th Street, at the corner of Lexington Avenue, in Manhattan. (D. Rule 56.1 Stmt. ¶1; P. Br. 2; Rill Tr., 17, 31.) The City had recently placed several such barriers in the vicinity of the Waldorf Astoria Hotel, the site of the 2002 World Economic Forum, as a security measure to prevent a potential vehicular terrorist-bomb attack. (D. Rule 56.1 Stmt. ¶¶9-11.) The protrusion on which Rill tripped was apparently an “I-Beam,” a rust-colored piece of metal used to connect the barriers. (Martini Tr. 22; Burns Tr. 40-41.) Rill contends that “[t]he City negligently created a dangerous hazard by placing a cement ‘Jersey Barrier’ in a location where pedestrians are known to walk, without removing the metal I-Beam connector” or placing on the barrier “any reflective devices to alert or warn pedestrians of [its] presence.” (P. Opp. to City Mot. 5 ¶7.)In opposition to the City’s motion for summary judgment, Rill offers, among other evidence, the testimony of several persons responsible for the placement of the cement barriers at or near the location of the 2002 World Economic Forum. Michael Martini, an employee of the City’s Department of Transportation who supervised the placement of the barriers (Martini Tr. 6- 7, 9), recalled that I-Beams were protruding from some of them. (Id. 31-32.) On January 29, 2002, the date of Rill’s accident, Martini spoke with Sergeant Robert Matthiessan,[2] the police officer responsible for securing the area around the Waldorf Astoria in connection with the Forum, about removing the I-Beams as a safety precaution. (Id. 34.) Martini testified that Matthiessan decided where to place the barriers and inspected them to ensure that they had been situated properly. (Id. 30.) According to Matthiessan, barriers placed on City streets and sidewalks are ordinarily inspected to ensure that they pose no pedestrian hazards. (Matthiessan Tr. 56-57.) Had he seen an I-Beam protruding from one of the barriers at a location near the World Economic Forum, he testified, he would have ordered it removed. (Id. 40-41.) But Matthiessan disclaimed any knowledge or memory of whether he, or anyone else, in fact inspected the barriers. (Id. 37-39.) In the opinion of William Marletta, an expert retained by Rill, failure to remove I-Beams from freestanding concrete barriers represents “a departure from good and accepted safe practice and is hazardous to pedestrians.” (Marletta Aff. ¶5.) Marletta also testified that such barriers should be marked with reflective tape, lights or paint stripes as a means to alert pedestrians to their presence. (Id. ¶6.)DiscussionI. Standard for Summary JudgmentSummary judgment must be granted where “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). A fact is “material” if it “might affect the outcome of the suit under the governing law”; an issue of fact is genuine where “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). On a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party, and the Court must resolve all ambiguities and draw all reasonable inferences in its favor. Id. at 255; Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995).To defeat summary judgment, however, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “[C]onclusory allegations or unsubstantiated assertions” will not suffice. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). Rather, the nonmoving party must “set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 587 (“Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ “) (quoting First Nat’l Bank v. Cities Service Co., 391 U.S. 253, 289 (1968)).II. The City’s MotionUnder New York law, which binds the Court in a diversity action, Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 427 (1996), a plaintiff claiming negligence “must show that the defendant owed the plaintiff a cognizable duty of care, that the defendant breached that duty, and that the plaintiff suffered damages as a proximate result of that breach.” King v. Crossland Sav. Bank, 111 F.3d 251, 259 (2d Cir. 1997). The City’s arguments correspond to these elements of tort liability. It argues, first, that absent a special relationship, which Rill does not allege, it owed no duty of care to Rill in connection with its placement of the barrier that allegedly caused him to fall because that act qualifies as a governmental function, and “[a]ctions taken in furtherance of governmental functions are not subject to tort liability” (D. Br. 4); second, that even if it did owe Rill a general duty of care as owner of the street and sidewalk, it did not breach that duty because the “open and obvious” nature of the hazard allegedly posed by the barrier made it unnecessary to warn pedestrians of any danger (id. 4-7); and third, that even if it did owe and breach a duty to Rill, Rill’s own negligence in failing to pay adequate attention to where he was walking, not that breach, proximately caused his injuries. (Id. 7.) The Court will address each argument in turn.A. Municipal ImmunityIn general, for “purely governmental functions undertaken for the protection and safety of the public pursuant to the general police powers,” Sebastian v. State, 93 N.Y.2d 790, 793 (1999) (internal quotation marks omitted), the State enjoys immunity from negligence claims “absent a special relationship between the injured party and the State.” Id. Rill does not claim any special relationship to the City (D. Br. 3 n.1), and the City represents that it placed the concrete barrier that allegedly caused Rill’s injuries in order to protect the public from potential terrorist attacks during the World Economic Forum. (Id. 4.) Therefore, the City argues, it enjoys immunity from liability for injuries caused by its alleged negligence in the placement of that barrier.This argument misconceives both the scope of the governmental-immunity doctrine and Rill’s theory of negligence. The doctrine shields the State (or, as here, the City) from liability for decisions about how to allocate the limited resources available to it for carrying out functions that benefit the general public. See, e.g., Balsam v. Delma Eng’g Corp., 90 N.Y.2d 966, 968 (1997) (traffic regulation); Cuffy v. City of New York, 69 N.Y.2d 255, 260 (1987) (police protection). Decisions about resource allocation, the law recognizes, generally should be left to the discretion of legislators and other policy-makers, who act in the general public’s interest, rather than to litigants, who act in their own, or to the judiciary. See id.; De Long v. County of Erie, 60 N.Y.2d 296, 305 (“[T]he proper allocation of public resources and available police services is a matter for the executive and legislative branches to decide.”); Rodriguez v. City of New York, 595 N.Y.S.2d 421, 425 (1st Dep’t 1993).Where, however, municipal authorities have already decided how to allocate resources to accomplish some governmental function, this rationale for immunity disappears. At that point, it remains only for the municipality to implement its decision. Once the City affirmatively assumes a duty, it must perform that duty in a non-negligent way, Nowlin v. City of New York, 81 N.Y.2d 81, 88 (1993), “notwithstanding that absent its voluntary assumption of that duty, none would have otherwise existed.” Florence v. Goldberg, 44 N.Y.2d 189, 196 (1978); cf. H.R. Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 167 (1928) (Cardozo, C.J.) (“The hand once set to a task may not always be withdrawn with impunity though liability would fail if it had never been applied at all.”).Here, Rill does not seek to hold the City liable for its determination that the public safety during the Forum required that concrete barriers be placed in the vicinity of the Waldorf Astoria. He argues that, having decided to place concrete barriers on certain streets and sidewalks, the City became obliged to carry out that decision in a non-negligent manner, particularly because those barriers also implicated the City’s “duty to maintain its streets in a reasonably safe condition.” Nowlin, 81 N.Y.2d at 88. According to Rill, the City acted negligently by failing to remove from the barrier the I-Beam that caused his fall or to mark the barrier with reflective tape, lights or paint in order to alert pedestrians to the potential hazard it posed. The evidence suffices to raise an issue of fact about whether the City’s failure to take these precautions constituted negligence.B. The “Open and Obvious” DefenseThe City also argues that because the barrier presented an “open and obvious” danger, it did not breach its general duty as property owner to maintain the public streets and sidewalks “in a reasonably safe condition in view of all the circumstances,” Basso v. Miller, 40 N.Y.2d 233, 241 (1976), and if necessary, to warn pedestrians of potential hazards. See Cupo v. Karfunkel, 767 N.Y.S.2d 40, 42 (2d Dep’t 2003). To be sure, as the City notes (D. Br. 5), “a landowner has no duty to warn of an open and obvious danger,” and “a court may determine that a risk was open and obvious as a matter of law where the established facts compel that conclusion.” Tagle v. Jakob, 97 N.Y.2d 165, 169 (2001); see Tarricone v. State, 571 N.Y.S.2d 845, 847 (3d Dep’t 1991) (landowner need not “warn against a condition that can readily be observed by those employing the reasonable use of their senses,” because “[u]nder such circumstances, the condition is a warning in itself”). But the Court cannot conclude on the present record that, as a matter of law, an I-Beam protruding from a barrier that has not been marked with reflective tape, paint or lights is “an open and obvious danger.”In general, as the City acknowledges, such questions remain issues of fact for the jury. (D. Br. 5.) See Tagle, 97 N.Y.2d at 169; Piluso v. Bell Atlantic Corp., 759 N.Y.S.2d 58, 60 (1st Dep’t 2003). This case is no exception. While the City emphasizes the substantial size of the concrete barrier (D. Br. 6), Rill claims that the undetached I-Beam, not the barrier itself, caused him to fall. The Court cannot say, as a matter of law, that any person making reasonable use of his or her senses would have observed the I-Beam, particularly because the accident happened after dark, and the City neglected to equip the barrier with a reflective device, a failure that Rill’s expert has testified constitutes a departure from standard safety practices.[3] (Marletta Aff. ¶6.)C. Proximate CausationFinally, the City argues that even if it owed and breached a duty to Rill, his own failure to pay adequate attention to where he was walking, not that breach, proximately caused his injuries. (D. Br. 7.) Williams v. State, 308 N.Y. 548, 553 (1955) ( “[E]ven where negligence and injury are both properly found, the negligent party can be liable only where the negligence charged was the proximate cause of the injury received.”). Proximate causation, however, generally presents an issue of fact for the jury. Benitez v. N.Y. City Bd. of Educ., 73 N.Y.2d 650, 659 (1989). Rill did not testify, as the City claims, that “he was not paying attention to his surroundings when he was walking.” (D. Br. 7.) He testified only that while crossing East 49th Street, he was speaking to his companions and did not notice the I-Beam protruding from the barrier. (Rill Tr. 48-49.) In a subsequent affidavit, Rill clarified that “[w]hile [he] was talking while walking[,] by no means was [he] not paying attention or doing anything out of the ordinary.” (Rill Aff. ¶4.) Whether Rill failed to see the I-Beam because of his own negligent inattention rather than because the City negligently failed to put a reflector on the barrier to make it visible to pedestrians traversing the streets after dark is a question of fact. And if, as Marletta testified, the I-Beam should have been removed as a safety precaution (Marletta Aff. ¶5), the City’s negligence may have proximately caused Rill’s injuries regardless of whether he should or should not have noticed the concrete barrier generally.ConclusionFor the reasons set forth above, the City’s motion for summary judgment is denied. The parties shall meet and confer to discuss settlement and appear before the Court for a subsequent conference on March 4, 2004, at 4:45 p.m.So Ordered.FootNotes:[1] Since the New York Police Department is not a separately suable entity, see N.Y. City Charter §396; E. Coast Novelty Co. v. City of New York, 781 F. Supp. 999, 1010 (S.D.N.Y. 1992), the Court will refer to defendants in the singular.[2] Martini misidentified his contact at the police department as “Lieutenant Matherson.” (Martini Tr. 14.)[3] Moreover, New York law does not make clear whether the open and obvious nature of a hazard negates the landowner’s duty altogether, constituting a complete defense, or bears only on the proper apportionment of damages under principles of comparative negligence. See Michalski v. The Home Depot, Inc., 225 F.3d 113, 117-21 (2d Cir. 2000). The Second Circuit concluded that the New York Court of Appeals would likely adopt the majority view, “which holds that the open and obvious nature of a dangerous condition on its property does not relieve a landowner from a duty of care where harm from an open and obvious hazard is readily foreseeable by the landowner and the landowner has reason to know that a visitor might not expect or be distracted from observing the hazard.” Id. at 121. The court in MacDonald v. City of Schenectady, 761 N.Y.S.2d 752, 753-55 (3d Dep’t 2003), reached the same conclusion by analyzing Tagle, the most recent discussion by the New York Court of Appeals of this aspect of landowner liability under New York law. Unlike the duty to warn of latent defects, which is negated by the open and obvious nature of a hazard because the manifest dangerous condition constitutes its own warning, in the case of the duty to maintain premises in a reasonably safe condition, the open and obvious nature of a hazard goes only to “the foreseeability of an accident and the comparative negligence of the injured party.” Id. at 755. Because the Court cannot say as a matter of law that the undetached I-Beam was, under the circumstances, “open and obvious,” the City’s motion for summary judgment can be rejected without reaching this issue. n
