Court of Appeals Holds that Municipality May be Liable for Negligent Failure to Prevent Criminally Reckless Speeding on Its Roadways

In Turturro v City of New York (No. 196) previewed here, the Court of Appeals was asked to determined whether a municipality may be held liable for failing to keep its roads in a reasonably safe condition where it has notice that drivers speed along its roads and the municipality doesn’t take reasonable action to study the issue or stop them.  In Turturro, a 12-year-old was struck by a car driving 24 miles per hour over the speed limit while riding his bicycle in Brooklyn.  The evidence at trial established that, for many years before the accident, the City of New York received complaints about vehicles speeding on the particular road where Turturro was hurt and that the City studied whether traffic lights were needed at particular intersections, but never studied or mitigated the issue of speeding along the entire length of the road.

This failure, the majority held, was well within the City’s proprietary role to maintain its roads in a reasonably safe condition, not its governmental function to police speeding for which the municipality would be immune from suit.  Particularly, the Court held, “[h]ighway planning, design, and maintenance . . . are proprietary functions,” while police protection is a quintessential governmental function immune from liability (Opn, at 10).  In the function of highway design, the Court held, a municipality may be qualifiedly immune from suit if, once it is made aware of a particular roadway danger, it takes action to study that danger and implements reasonable measures to remedy it.  The Court also emphasized that if the study that is conducted is inadequate, there is no basis for the remedial action the municipality chooses, or the municipality fails to review its action after it is implemented, it may still be held liable.  Here, the majority held, the City’s failure to conduct a traffic calming study along the length of the roadway on which the child was injured and implement traffic calming measures to reduce speeding rendered it liable, in part, for the child’s injuries.

In Judge Pigott’s final dissent of his tenure on the Court, he vehemently disagrees with the majority’s reasoning and, in typical Judge Pigott style, cautions of the practical impacts of the Court’s decision.  The municipality’s duty to maintain safe roadways, Judge Pigott emphasized, extends only to keeping the roads safe for drivers who follow the law, for example, by removing standing water, repairing potholes, and installing adequate traffic safety control devices.  That duty does not extend, however, to the “municipality’s efforts to deter or prevent unlawful activity such as speeding” (Dissenting Opn, at 5).  Touring through the Court’s long history of precedent making a distinction where the alleged governmental negligence is the failure to protect an individual from criminal conduct, Judge Pigott determined that in such cases the government is absolutely immune from tort liability because it is acting in its governmental function to protect the public.  Thus, Judge Pigott concluded, the City’s alleged failure here to conduct a traffic calming study in response to complaints of speeding amounts to nothing more than the failure to prevent or respond adequately to criminal activity.  Municipalities have long been immune from suit for such alleged failures of its governmental function, and thus Judge Pigott would have reversed the judgment awarded against the City.

Most importantly, Judge Pigott cautions what the future may hold for municipalities when someone is injured on roadways by speeding motorists: “If there is anything to be learned from our case law in this area, it is that a municipality’s efforts to respond to criminal activity are so overwhelmingly governmental in nature, they cannot expose the municipality to liability in tort. If they did — and after the majority’s decision today they most certainly will — then municipalities throughout the State will be haled into court whenever a plaintiff who has been injured on the road at the hands of a speeding or intoxicated motorist is able to identify alternative measures the government could have taken to attempt to prevent the accident” (Dissenting Opn, at 10-11).  This is a scary prospect for many municipalities, as even defending such claims in court can get expensive quickly.

The Court of Appeals’ opinion can be found here.