State of New York
Supreme Court : County of Monroe

- against -

Index No. 2001/3219

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

ANDREW V. SIRACUSE, J.

The limits of municipal tort liability are drawn very tightly for ordinary defects of maintenance. Is the law any different when the municipality invites the populace to attend special events, walking on roads normally used by cars? The plaintiffs here have presented no convincing argument why they should fall into a separate category, and because the city had no written notice of the defect that allegedly caused the plaintiff's injuries this complaint must be dismissed.

Plaintiff Timothy O'Neil was one of tens of thousands who attended the fireworks display on December 31, 1999. To control traffic and facilitate the large number of spectators anticipated for this event the city had blocked off some streets downtown, near the best viewing areas. It was in walking on one of these streets that plaintiff states he caught his foot in an open water hydrant branch valve vault and was injured. These vaults, which provide access for maintenance and control to the connection between a water main and a fire hydrant, are normally covered by a small circular cover, much like a small manhole cover. For the purposes of this motion it must be assumed as true that the cover was missing. No party has offered an explanation for this.

The defendant relies on the undisputed fact that it had received no written notice that the cover was missing. The plaintiffs, for their part, argue that the written notice requirement should not be applied here. They make three arguments: (1) there was special use and benefit to the city because the fireworks show was designed to generate good will; (2) the city had a duty to maintain the vault covers and thus was responsible for their being missing, and (3) the city had a duty to inspect the street before letting people walk on them.

The special use exception does not apply to fact patterns such as the present one. The city has argued that there can be no liability based on special use for actions which the city is required to undertake anyway. This is true, but even more to the point is the fact that the special use exception arises out of cases which impose liability on adjacent landowners rather than the municipal owner. This, in fact, is what happened in all three cases cited by the plaintiffs.

The municipality itself could be liable under a theory of special use only if it obtained a special use or benefit in its proprietary capacity, rather than its capacity as a municipality--for example, if it undertook certain actions as a commercial landlord. It does not operate to render the city liable for activities which benefit the city as a community or which, in plaintiffs' terms, generate "goodwill." Following the plaintiffs' reasoning one might argue that any promotion of traffic in the city, such as "Downtown Alive at Five" or extended Christmas shopping hours, confers a special benefit on the city and would therefore do away with the requirement of written notice.

The second argument--that the city is liable because it maintains the vault covers--is exactly the claim that the notice requirement is meant to eliminate. Ownership of property combined with the foreseeable use of the property by others creates a duty to maintain; but municipalities are exempt from liability for negligent failure to live up to this duty unless they have received prior notice of the defect. Thus, the mere assertion that the city has a duty to maintain the vault covers presents no grounds for ignoring the notice requirement. In addition, there is no evidence that the city affirmatively created the danger by removing the cover.

Finally, the mere fact that the street was to be blocked off does not give rise to any special duty or requirement to inspect. The use of streets for foot traffic is not so unusual that the general rules should not apply; they are crossed by pedestrians regularly, and not only at crosswalks. It is, moreover, a misconstruction of the record to claim that Mr. O'Neil was "directed" or "funneled" towards the open vault cover.

There is no evidence to suggest that the street barricades were set out for any purpose other than to keep automobile traffic off the streets, and the width of the street compared with the size of the opening makes any claim that plaintiff was led to the exact location of the defect absurd on its face. The missing vault cover on New Year's Eve must be treated like any other defect in the streets and sidewalks at any other time. Without prior written notice there is no liability. The city's motion to dismiss is granted, without costs or disbursements, and counsel for the defendant may prepare the order.

DATED: Rochester, New York

June 24, 2002

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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