Opinion
109624/03.
Decided April 30, 2008.
Plaintiff: Kenneth A. Wilhelm, Esq., New York, New York.
Defendant: Corporation Counsel, New York, New York.
It is ordered that this motion by defendant CENTRAL PARK CONSERVANCY for a new trial, a directed verdict, vacatur of liability and damage verdicts, stay of execution of judgment, and other post trial relief pursuant to CPLR §§ 4402, 4404, and 4545 is granted.
Defendant Central Park Conservancy brings this motion for various post trial relief including setting aside the jury verdict rendered on May 11, 2007, or in the alternative, ordering a new trial on the issue of damages or reducing the damages verdict.
This action arises out of an elbow fracture suffered by a three year old child who fell on the cobblestone pavement surrounding Central Park. The testimony showed that, at the time of the accident, the child was in the care of her grandmother. She was sitting with her grandmother and a friend on a bench between 103rd and 104th Street. When they stood up to leave, the child took a couple of steps and tripped in a hole in the cobblestones. She fell on her elbow, sustaining a fracture which required surgery and several days in the hospital. At the time of trial, almost four years later, she continued to experience intermittent pain and had a scar.
Maintenance of the accident site was the responsibility of the Central Park Conservancy, a private not-for-profit corporation, formed in 1980, for the purpose of promoting and assisting in the restoration, maintenance and management of Central Park. As stated in its contract with the City, entered in 1998:
[The Conservancy and the New York City Department of Parks] have developed an effective public/private partnership through which [The Conservancy], under the supervision of the Commissioner [of the Parks Department], has undertaken substantial responsibility for the maintenance, repair, public programming, and capital improvements in Central Park, and has provided funds for the costs associated therewith.
The Contract further provides, in relevant part, that the Conservancy is funded by the City and by private contributions; that it has its own employees; that the City indemnifies it for any and all liabilities arising from its services; and the City assumes responsibility for the defense of any claims by third parties.
The New York City Administrative Code § 7-201(c)(2) provides that no action may be maintained against the City for injury resulting from a street being out of repair unless the City has received actual written notice of the condition. Although the plaintiff's mother testified that she had noticed the hole in the cobblestones in which her daughter tripped approximately six weeks prior to the accident, it was undisputed that neither the City nor the Conservancy had prior written notice of any missing cobblestones at the location. Corporation Counsel, who represented both defendants, failed to initiate any pre-trial motion practice on the issue of notice. Plaintiff voluntarily discontinued the action against the City, based upon the absence of notice, immediately prior to jury selection .
On the morning of trial, while the was jury waiting, without prior notice to the plaintiff or to the Court, Corporation Counsel orally moved to dismiss the action. Neither the plaintiff nor the Court was prepared to consider the motion. The Court rendered no decision. Following a four day trial, the jury returned a verdict totaling over $1.5 million, assessing 100% liability against the Conservancy.
Defendant moves to set the verdict aside on three separate grounds:
(1) The Conservancy, as a matter of law, has no liability to the plaintiff. The contract between the City and the Conservancy creates no tort liability towards a third party. Moreover, because it is fully indemnified by the City; the prior written notice requirement applies to the Conservancy.
(2) Plaintiff counsel's improper closing remarks and the Court's failure to instruct the jury on apportioning responsibility with the grandmother for negligent supervision constituted reversible error. Defendant argues that plaintiff's closing was replete with unsubstantiated, prejudicial and inflammatory statements. The grandmother was talking to her friend, did not help the child off the bench and did not notice the hole before the child fell in it notwithstanding that it was directly in front of the bench;
(3) The damages verdict is excessive. Review of comparable injuries demonstrates that the verdict deviates materially from reasonable compensation for the injury sustained.
Plaintiff, opposing the motion, argues:
(1) The Conservancy owed a duty of care to the plaintiff as a member of the public. Plaintiff was an intended third-party beneficiary of the contract between the Conservancy and the City; and/or the Conservancy comes within two of the exceptions to the rule prohibiting municipal contractor liability. Moreover, as an independent and private organization, the Conservancy has no right to notice;
(2) Plaintiff's closing was proper and constituted fair comment; the Court would never have permitted the described conduct had it actually happened; and defendant failed to object. Plaintiff's grandmother was not negligent. Because she lives with the plaintiff and was her daily custodian, she is shielded from negligence by GOL § 3-111.
(3) The damages award does not deviate materially from what is reasonable. The jury's award was unanimous and plaintiff's injuries are distinguished from those of the cited cases.
Discussion
It is well-settled that a motion to set aside a jury verdict shall not be granted unless the preponderance of the evidence in favor of the moving party is so great that the verdict could not have been reached upon any fair interpretation of the evidence. ( Baker v Turner, 200 AD2d 525 [1st Dept 1994]; Lolik v Big V Supermarkets, 86 NY2d 744[1995]). The trialcourt must avoid unnecessary interference with the fact-finding function of the jury to a degree that amounts to usurpation of the jury's duty. ( Nicastro v Park, 113 AD2d 129 [2d Dept 1985]).
We do not need, however, to re-weigh the evidence to reach the conclusion that this verdict must be set aside. The Conservancy, as a matter of law, has no liability to the plaintiff. This claim should never have reached a jury.
It is horn book law that a finding of negligence must be based on the breach of a duty. A threshold question in any tort case is whether the alleged tortfeasor owed a duty of care to the injured party, which is a question of law to be determined by the court. ( Espinal v Melville Snow Contractors, Inc, 98 NY2d 136).A contractual obligation, standing alone, will generally not give rise to tort liability in favor of noncontracting third parties. ( Id; Church v Callanan Indus, 99 NY2d 104). Thus, the contract between the City and the Conservancy does not create a duty of care, on the part of the Conservancy, to third parties.
Plaintiff attempts to avoid this principal on two different theories: (1) that she is an intended third party beneficiary of the contract between the Conservancy and the City; or (2) that she is an exception to the general rule that a contractual obligation does not give rise to tort liability. Neither of these theories applies.
The contract between the City and the Conservancy frequently references its purpose to "benefit the public." Based upon this language, plaintiff argues that, as a member of the "public," she is an intended third party beneficiary of the contract. This argument was explicitly rejected by Chief Justice Cordoza ninety years ago:
In a broad sense it is true that every [municipal] contract is for the benefit of the public. More than this, however, must be shown to give a right of action to a member of the public not formally a party [to the contract] . . . The field of obligation would be expanded beyond reasonable limits if less than this were to be demanded as a condition of liability. ( Moch Co v Rensselaer Water Co, 247 NY2d 160 [1928])
Plaintiff attempts to distinguish Moch by citing Koch v Consolidated Edison Company of New York, Inc, 62 NY2d 548, cert denied, 469 US 1210, a case seeking damages arising from the blackout, for the principle that members of the public may be third party beneficiaries of a municipal contract. It appears plaintiff failed to notice that the plaintiff-customers in Koch were the City of New York and 14 public benefits corporations. The Court has consistently denied this relief to individuals:
Plaintiffs-respondents cannot seek recovery as third-party beneficiaries of the contract between their landlords and the defendant utility. In Koch this Court held Con Edison liable to PASNY [Public Authority of the State of New York] customers, on a third-party beneficiary theory, where Con Ed had expressly undertaken a contractual duty to supply electricity for the needs of PASNY's customers. ( Milliken Co et al v Consolidated Edison of New York, Inc, City of New York et al, 84 NY2d 469 (citations omitted) (emphasis in original).
See also, ( Strauss v Belle Realty Company and Consolidated Edison Company of New York, Inc, 65 NY2d 399):
While the absence of privity does not foreclose recognition of a duty, it is still the responsibility of courts, in fixing the orbit of duty, to limit the legal consequences of wrongs to a controllable degree and to protect against crushing exposure to liability."( citations omitted)])
It is clear that "the public who uses Central Park" is a group which potentially includes any person who lives in or visits New York City. It is not a "sufficiently narrowly defined class" to confer a right of recovery on one of its members as an intended third party beneficiary of the contract between the Conservancy and the City. .
In the alternative, plaintiff attempts to create liability through an exception to the general rule against contractor liability. The Court of Appeals, in Espinal, summarized three exceptions:
(1) Where the contracting party launches a force or instrument of harm'( Moch, supra); (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties ( Eaves Brooks Costume Co v YBH Realty Corp, 76 NY2d 220); and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely ( Palka v Servicemaster Mgt Servs Corp, 83 NY2d 579). ( Stiver v Good Fair Carting and Moving, Inc ,9 NY3d 253).
Plaintiff argues that the second and third exceptions apply. The argument is without merit. Detrimental reliance requires "reliance by one party on the acts or representations of another, causing a worsening of the first party's position." ( Black's Law Dictionary, 7th Ed, 1293). The party must have been induced to forgo other remedies or precautions against the risk. ( Restatement [ Second] of Torts, § 324 A [c]; Church v Callanan, 99 NY2d 104). It is obvious that the Conservancy never made any representation to the plaintiff, or to her caretaker, whatsoever, let alone one which induced them to worsen their position or take fewer precautions.
The contention that the Conservancy "entirely displaced" the City's responsibility for the maintenance and repair of the cobblestone paths is both legally and factually erroneous:
A governmental body, like the City of New York, is under a nondelegable duty to maintain its roads and highways in a reasonably safe condition. Liability will flow for injuries resulting from a breach of that duty; because the duty is nondelegable, even if the dangerous condition, which caused the injury, is created by an independent contractor. The obligation imposed on the governmental body remains fixed. ( Lopes v Rostad, 45 NY2d 617; see also Kathy McAllen v City of New York, 270 AD2d 43 [1st Dept 2000]).
The contract between the City and the Conservancy is consistent with the City's retention of its nondelagable duty to maintain and repair the Park:
Whereas, [The New York City Parks Department] is charged with the duty to manage, maintain, and operate City parks and recreation facilities pursuant to Section 533 of the New York City Charter; and
Whereas, pursuant to its Certificate of Incorporation, [the Conservancy] was formed in 1980 for the purpose of promoting and assisting in the restoration, maintenance and management of Central Park . . .
[The Conservancy] shall provide, or cause to be provided services specified for maintaining and repairing Central Park to the reasonable satisfaction of the Commissioner. . . .
City agrees to indemnify and hold harmless [the Conservancy], its officers, trustees, employees, and volunteers from and against any and all liabilities, obligations, damages and expenses arising from all services performed and activities conducted by [the Conservancy] pursuant to this agreement in Central Park.
Finally, as noted above, the City's duty to maintain the safety of its streets is nondelagable. The City is contractually obligated to indemnify the Conservancy for any and all liabilities arising from its services. To permit an action such as this, in which no notice was given, to be maintained against the Conservancy would have the effect of forcing the City to waive its statutory entitlement to notice. We can find no case in which such a violation of the statutory framework was even considered. In the only other case in which the Conservancy was sued by a plaintiff who fell in a pothole in the Park, no distinction was made between the Conservancy and the City. The court granted summary judgment, dismissing the complaint against the Conservancy and the City, for lack of prior notice. The First Department affirmed. ( Roman v City of New York , 38 AD3d 442 [1st Dept 2007]).
We do not reach defendants' other requested relief which have been rendered moot.
Conclusion
This Court notes that the summary judgment motion in the Roman case was not made until after the Note of Issue was filed. It was never made in this case. It can only be hoped that henceforth legally defective claims against the City will be dealt with more appropriately and court time will not be wasted on exercises in futility and the perpetuation of false hopes.
Accordingly, it is
ORDERED that the Conservancy's motion to set aside the verdict is granted, and it is further
ORDERED that the liability and damages verdicts are vacated; it is further
ORDERED that judgment is entered in favor of the Conservancy as a matter of law.
This reflects the decision and order of this Court.