State of New York
Supreme Court : County of Monroe

- against -

Index No. 1995/1947

This opinion is uncorrected and is subject to revision in the official Reports

ANDREW V. SIRACUSE, J.

In February 1994 the plaintiff in this action fell near 150 East Main Street in the city of Rochester. Her daughter, it appears, told her that she had tripped on a raised paving stone in the decorative sidewalks recently installed as part of a project to revitalize that street. She brought an action against the city, and after six years of discovery the city has moved for summary judgment.

This case has not lacked for theories of liability. Plaintiff now concedes that she cannot maintain causes of action in the existence of a dangerous condition or in negligent maintenance, because she has not been able to establish written notice as required by the General Municipal Law or any species of constructive notice that would fit within the very narrow limits left by the Court of Appeals in Amabile v City of Buffalo (93 NY2d 471). The first and third causes of action are therefore deemed to have been withdrawn. There remains the second of the three causes pleaded, a claim based on the design and construction of the sidewalk itself, and it is this claim that dominated the final papers exchanged for the motion and the oral argument.

The sidewalk in question has been controversial from a liability point of view, at least informally, since it was installed. It consists of separate salmon pink and charcoal gray stone pavers set in a geometric pattern. Anecdotal evidence suggests that the Rochester climate is harder on this kind of paving than on the traditional slab style, but definitive testimony on the subject is not available.

The general rule, however, is that municipalities are not liable for reasonable design decisions, and thus the sidewalk design itself cannot give rise to liability unless there was proof that the plan evolved without adequate study or lacked a reasonable basis. A long line of highway cases starting with Weiss v Fote (7 NY2d 579) through and including Fourth Department cases like Palloni v Town of Attica (278 AD2d 788) hold this way, and the law for sidewalks is the same as that for highways. The choice of one paving material over another cannot be challenged in a liability lawsuit unless there is evidence that the municipality made this decision without a reasonable basis. Plaintiff's expert has shown a plausible basis for thinking that this paving design might produce some raised paving stones, but this in itself is insufficient to override the qualified immunity set out in Weiss and its progeny.

Plaintiff goes on, however, to focus not on the design but on the construction method chosen to build this pavement over the below-street-level vaults that extend from some Main Street buildings towards the street. (These vaults were formerly used to load supplies and merchandise directly into basements.) Her counsel argues that the cases stating that a municipality cannot be liable for rational design decisions are not applicable to matters of construction. Plaintiff distinguishes between a discretionary decision such as locating a street and a proprietary function, asserting that maintenance and construction are proprietary.

At oral argument plaintiff's counsel added that building a sidewalk was not solely a municipal function, because anyone can build a sidewalk, and that Weiss was therefore inapplicable. The court finds this analogy inappropriate. The decision to use one type of paving and to adopt a certain design and construction method is in fact discretionary, like the use of particular median barriers. To take a hypothetical example, a municipality would not be liable for choosing to build, say, a wooden median barrier rather than a steel one.

Indeed, construction methods and materials are almost inevitably engineering issues and are chosen in the same process as the design they will implement. Accordingly, the rule in Weiss is commonly applied to cases asserting claims for negligent design, construction and engineering (see, e.g., Cangemi v Pickard, 270 AD2d 802). No case has been cited that suggests that one aspect of this process is discretionary and the others proprietary. Plaintiff's post-argument letter cites Miller v State of New York (62 NY2d 506). This case, however, dealt with the State's liability to a State university student for a knifepoint rape in an unlocked dormitory. The Court there noted that the State was acting as in a proprietary capacity as a landlord. It is difficult to think of a less apposite citation, and it is impossible to extend its holding to anything remotely resembling the facts before the court here.

Further, the seminal case on this issue, Urquhart v City of Ogdensberg (91 NY 67), dealt specifically with an alleged construction defect in a sidewalk: namely, a slope meant to carry rain water off that was said to be dangerously steep. This is very close to the kind of choice made by the present defendant. To adopt the plaintiff's position would be to import negligence categories into every design decision. This would clearly be a violation of the principles in all the cases following Urquhart. The court concludes that the present case involves the exercise of a discretionary function, not a proprietary one, and that the expert testimony proffered by the plaintiff does not create an issue of fact as to the existence of a rational basis for the city's design and construction decisions. The motion to dismiss the complaint is therefore granted, without costs or disbursements. Counsel for defendant may prepare the order.

DATED: Rochester, New York

October 15, 2001

Andrew V. Siracuse, J.S.C.

This opinion is not available for publication in any official or unofficial reports, except the New york Law Journal, without the approval of the State Reporter or the Committee on Opinions (22 NYCRR 7300.1)

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