Rhonda Wittorf v City of New York (2014) H&FLR 2014-26

Court of Appeals of New York

5 June 2014

Coram: Lippman CJ, Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam JJ

Appearing for the Plaintiff (Appellant): Brian J Shoot (of Sullivan Papain Block McGrath & Cannavo)
Appearing for the Defendant (Respondent): Ronald E Sternberg (of New York City Law Department
Appearing as Amicus Curiae: New York State Trial Lawyers Association

Catchwords: New York – negligence – road works – closure of road – cyclist – road defect – fall off bicycle – governmental function – proprietary function

Facts: On 5 November 2005, an employee of the defendant with a works crew attended Central Park to repair certain defects in the roadway beneath an underpass. Before starting work, the employee went to an entrance to the park to close it to vehicular transport with traffic cones. As he did so, the plaintiff and a third party arrived and asked if they could use the roadway on bicycles. They were told it was “okay to go through”. As they did so, the plaintiff encountered the defects which he crew had been sent to repair, fell off her bicycle and was injured. She commenced proceedings seeking compensation from the defendant in the Supreme Court of New York.

At trial, a jury found that the defendant’s employee was negligent in allowing the plaintiff to use the roadway and that this negligence was a substantial factor in causing her injuries. The defendant successfully applied to the Court to set the verdict aside on the grounds that the employee was carrying on a governmental function at the time of the accident*. An appeal to the Appellate Division was dismissed**. The plaintiff appealed to the Court of Appeals.

Held: per curiam, upholding the appeal –

1. If a municipality is engaged in a proprietary (as opposed to governmental) function when the claim arises, it is subject to being sued under the ordinary rules of negligence. It will be engaging in a proprietary function if the activity substitutes for or supplements traditionally private activity. It will be engaging in a govenmental function if its acts are undertaken for the protection and safety of the public under the general police power.

Applewhite v Accuhealth Inc, 21 NY.3d 420 (2013), followed.

2. A municipality has a proprietary duty to keep roads and highways in a reasonably safe condition, and the function remains proprietary regardless of limitations on liability imposed by “prior written notice” laws or whether the function is carried out by the municipality’s maintenance crews.

Friedman v State of New York, 67 NY.2d 271 (1986), followed. Bruni v City of New York, 2 NY.3d 319 (2004) and Amabile v City of Buffalo, 93 NY.2d 471 (1999), considered.

3. In the present case, although the City’s employees had not yet begun the repairs, the works could not be performed without closing the road to traffic and so the closure was integral to the repair work and part of the proprietary function. By contrast, had the crew been seeking to control access to the scene for the protecion of the public in general (a governmental function), this may have rendered the traffic control decision governmental.

Balsam v Delma Engineering Corporation, 90 NY.2d 966 (1997), distinguished.


The Court’s judgment is available here.


* Wittorf v City of New York , 33 Misc 3d 368 (2011).

** Wittorf v City of New York, 104 AD.3d 584 (1st Dept, 2013)