
    Pauline R. Weiss, Respondent-Appellant, v. Francis A. Fote et al., Respondents, and City of Buffalo, Appellant. Willie L. Alexander, Respondent, v. Francis A. Fote, Defendant, and City of Buffalo, Appellant.
    Argued January 19, 1960;
    decided April 21, 1960.
    
      
      Anthony Manguso, Corporation Counsel (Daniel J. Lucitt of counsel), for appellant.
    I. The discretionary determination or judgment of the Board of Safety of the City of Buffalo, in locating and/or timing traffic signals which are not defective and which function as planned, cannot impose liability in negligence upon the City of Buffalo. (Steitz v. City of Beacon, 295 N. Y. 51; Matter of Emerson v. Buck, 230 N. Y. 380; McCabe v. City of New York, 213 N. Y. 468; Blanshard v. City of New York, 262 N. Y. 5; City of Albany v. Newhof, 230 App. Div. 687, 256 N. Y. 661; Kamnitzer v. City of New York, 265 App. Div. 636; Murrain v. Wilson Lines, 296 N. Y. 845; Haslam v. State of New York, 167 Misc. 455; Newiadony v. State of New York, 276 App. Div. 59; Coates v. United States, 181 F. 2d 816; Sickman v. United States, 184 F. 2d 616; Olson v. United States, 93 F. Supp. 150; Boyce v. United States, 93 F. Supp. 866; Urquhart v. City of Ogdensburg, 91 N. Y. 67; Lansing v. Toolan, 37 Mich. 152; Stratton v. City of New York, 190 N. Y. 294; Bernardine v. City of New York, 294 N. Y. 361; Lockwood v. Village of Buchanan, 18 Misc 2d 862.) II. The proof of plaintiffs-respondents, Weiss and Alexander, was not sufficient as a matter of law to prove the City of Buffalo guilty of actionable negligence that was the proximate cause of the accident. (Clark v. City of Buffalo, 288 N. Y. 62; Applebee v. State of New York, 308 N. Y. 502; Eastman v. State of New York, 303 N. Y. 691; Barna v. State of New York, 267 App. Div. 261; Gurevitch v. State of New York, 205 Misc. 487.) III. No actionable negligence can be imputed to the City of Buffalo. (Yusko v. Remizon, 280 App. Div. 637; Cartee v. Saks Fifth Ave., 277 App. Div. 606; Williams v. State of New York, 308 N. Y. 548; Moch Co. v. Rensselaer Water Co., 247 N. Y. 160; People v. Grant, 306 N. Y. 258; Hubbell v. City of Yonkers, 104 N. Y. 434; Palsgraf v. Long Island R. R. Co., 248 N. Y. 339.) IV. The court committed reversible errors during the trial by its comments and rulings as herein enumerated. (Ferguson v. Hub 
      
      bell, 97 N. Y. 507; Dougherty v. Milliken, 163 N. Y. 527; Rosenfeld v. American Ins. Co., 260 App. Div. 697; Parish v. Baird, 160 N. Y. 302; Ward v. City of Troy, 55 App. Div. 192; Blind v. Rochester Aeronautical Corp., 273 App. Div. 1056; Cahill v. Kleinberg, 233 N. Y. 255; Begley v. Prudential Ins. Co. of America, 6 A D 2d 869, 1 N Y 2d 530; People v. Harris, 136 N. Y. 423; Stearns v. Field, 90 N. Y. 640.) V. The court, over objections, committed prejudicial, reversible errors in its charge to the jury. (Lyman v. Village of Potsdam, 228 N. Y. 398.) VI. The verdict in favor of plaintiff-respondent, Weiss, is excessive and should be set aside. (Jones v. New York Cent. & H. R. R. R. Co., 99 App. Div. 1; Kligman v. City of New York, 281 App. Div. 93; Conkey v. New York Cent. R. R. Co., 206 Misc. 1077; Turack v. State of New York, 259 App. Div. 1105, 285 N. Y. 737; Callahan v. State of New York, 179 Misc. 781, 266 App. Div. 1054; Elliott v. Zellar, 192 Misc. 350; Fried v. New York, N. H. & Hartford R. R. Co., 183 App. Div. 115, 230 N. Y. 619.) VII. The service of a proper notice of claim upon a duly designated officer of the City of Buffalo was not proven by either plaintiff-respondent. (MacMullen v. City of Middletown, 187 N. Y. 37.)
    
      Philip H. Magner, Jr., Samuel Sapowitch and Gerald L. Baskey for respondent-appellant.
    I. The clearance interval was unsafe and inadequate as a result of the negligence of the Traffic Engineer, Henry Osborne, an employee or agent of the City of Buffalo. II. The lack of a proper clearance interval was a proximate cause of the accident. (Vinci v. Charney, 192 Misc. 302; Foley v. State of New York, 294 N. Y. 275; Kingsland v. Erie County Agric. Soc., 298 N. Y. 409; Gibson v. State of New York, 173 Misc. 893; McDonald v. Central School Dist., No. 3, 179 Misc. 333, 264 App. Div. 943, 289 N. Y. 800.) III. The city is liable to plaintiff for the negligence of its agents or employees in improperly designing the intersection traffic control system. (Bernardine v. City of New York, 294 N. Y. 361; Steitz v. City of Beacon, 295 N. Y. 51; Moch Co. v. Rensselaer Water Co., 247 N. Y. 160; McCrink v. City of New York, 296 N. Y. 99; Joy v. City of Jamestown, 207 Misc. 873, 286 App. Div. 991; Parsons v. City of New York, 248 App. Div. 825, 273 N. Y. 547; Cleveland v. Town of Lancaster, 264 N. Y. 568; Schuster v. City of New York, 5 N Y 2d 75; Murphy v. De Revere, 279 App. Div. 929, 304 N. Y. 922; Annino v. City of Utica, 276 N. Y. 192; Metzroth v. City of New York, 241 N. Y. 470; Ziehm v. State of New York, 270 App. Div. 876; Urquhart v. City of Ogdensburg, 91 N. Y. 67; Monk v. Town of New Utrecht, 104 N. Y. 552; Garratt v. Trustees of Canandaigua, 135 N. Y. 436; Paine v. Village of Delhi, 116 N. Y. 224; Seifert v. City of Brooklyn, 101 N. Y. 136; Stern v. International Ry. Co., 220 N. Y. 284; Kiernan v. Mayor, 14 App. Div. 156.) IV. Expert opinion testimony is permissible as to the safety of the traffic control methods adopted for the intersection. (Price v. Powell, 3 N. Y. 322; Curtis v. Gano, 26 N. Y. 426; Moore v. Westervelt, 27 N. Y. 234; Hart v. Hudson Riv. Bridge Co., 84 N. Y. 56; Ward v. Kilpatrick, 85 N. Y. 413; Finn v. Cassidy, 165 N. Y. 584; Sykes v. Village of Portland, 193 Mich. 86; Eargle v. Sumter Light. Co., 110 S. C. 560; Dardanelle Pontoon Bridge & Turnpike Co. v. Croom, 95 Ark. 284; Storms v. City of Fulton, 263 App. Div. 927.) V. The notice of claim was sufficient and the propriety of the service was not in issue. (Matter of Huntley v. City of Albany, 201 Misc. 426; Miller v. City of New York, 187 Misc. 926; Teresta v. City of New York, 304 N. Y. 440; Mink v. City of Albany, 203 Misc. 94; Gerding v. Haskin, 141 N. Y. 514; Bissel v. Campbell, 54 N. Y. 353; Booth v. Bunce, 31 N. Y. 246; Ramsay v. Miller, 202 N. Y. 72.)
    
      Willard M. Pottle for Francis A. Fote, respondent.
    The judgment dismissing plaintiff’s complaint as to respondents Fote should be affirmed.
    
      Edmund S. Brown for Willie L. Alexander, respondent.
    I. The jury determined that respondent Alexander was not negligent. II. The judgment dismissing plaintiff’s complaint as to respondent Alexander should be affirmed.
   Fuld, J.

In the early evening of October 31, 1955, a collision occurred in Buffalo between an automobile owned and operated by Willie Alexander and an automobile operated by Francis Fote and owned by him and his wife. Alexander was proceeding south on Delaware Avenue and Fote was driving west on Delavan Avenue. The impact of the collision propelled Fote’s car across the intersection, where it jumped the curb on the southwest corner and crushed Pauline Weiss, who had just alighted from a bus on her way home from work, against a fire hydrant. Mrs. Weiss sustained serious injuries and instituted an action, naming Alexander, the Fotes and the City of Buffalo as defendants. Alexander’s car was damaged and he too brought suit against the city and Francis Fote.

At the trial, the plaintiffs sought to show that the traffic signal lights maintained by the City of Buffalo at the intersection of Delaware and Delavan Avenues were negligently designed in that the “clearance interval” — the four-second interval between the time the green signal for east-west traffic on Delavan Avenue ended and the signal for north-south traffic on Delaware Avenue turned green — was too short, with the result, in this instance, that east-west traffic was “green-lighted” before all of the north-south traffic had cleared the intersection. The city’s evidence was that the lights had been designed and installed by its Board of Safety, that ample study of traffic conditions at the intersection, including numerous traffic checks, had been made prior to their installation in 1952 and that there was no showing of any other accident in the more than three years which had elapsed since that time.

The jury was instructed (1) to find the defendant city liable if it was negligent in failing to provide a sufficient “ clearance interval” and (2) to find the defendants Fote and Alexander liable if they drove into the intersection negligently. In each case, a verdict was returned in favor of the plaintiff, but only against the City of Buffalo; the consequent judgments were unanimously upheld by the Appellate Division, and the appeals, taken by both the city and the plaintiff Weiss, are here by permission of this court.

On the appeal by Mrs. Weiss from the judgment in favor of Alexander and the Fotes, we may simply say that there is no basis, on the record before us, for interfering with it; indeed, her suit was actually tried on the theory that the City of Buffalo alone was negligent. Consequently, we need concern ourselves solely with the question of the latter’s liability, and as to this it is our conclusion that the evidence fails to show a breach of any duty owed to the plaintiffs by the city.

Even before the Legislature had, by the enactment of what is now section 8 of the Court of Claims Act, provided for the general waiver of immunity by the State, the immunity enjoyed by the State and its subdivisions with respect to the maintenance of the streets and highways had already been withdrawn. Reviewing the case law, which antedated passage of the immunity waiver provision, the court in Annino v. City of Utica (276 N. Y. 192, 196), declared that a municipality “ owed to the public the absolute duty of keeping its streets in a reasonably safe condition for travel ’ ’. (See, also, Brusso v. City of Buffalo, 90 N. Y. 679; Storrs v. City of Utica, 17 N. Y. 104.) But, in measuring that duty, we have long and consistently held that the courts would not go behind the ordinary performance of planning functions by the officials to whom those functions were entrusted. This rule, announced in 1883 in Urquhart v. City of Ogdensburg (91 N. Y. 67), has been uniformly followed since that time. In the Urquhart case, the court denied liability for injuries arising out of a “ radical defect ’ ’ in the plan of a sidewalk built by the municipality, and in the course of its opinion wrote (p. 71):

“ The rule is well settled that where power is conferred on public officers or a municipal corporation to make improvements, such as streets, sewers, etc., and keep them in repair, the duty to make them is quasi judicial or discretionary, involving a determination as to their necessity, requisite capacity, location, etc., and for a failure to exercise this power or an erroneous estimate of the public needs, no civil action can be maintained. ’ ’

The rationale of the decision is found in language quoted by the court from Chief Judge Cooley’s opinion in Lansing v. Toolan (37 Mich. 152, 154): “ Courts and juries are not to say [municipal corporations] shall be punished in damages for not giving to the public more complete protection; for * * * that would be to take the administration of municipal affairs out of the hands to which it has been entrusted by law.”

It is significant, we believe, that the body of cases which follows Urquhart (see, e.g., Watson v. City of Kingston, 114 N. Y. 88, 91; Paine v. Village of Delhi, 116 N. Y. 224, 228; Stern v. International Ry. Co., 220 N. Y. 284, 294; Barrett v. State of New York, 220 N. Y. 423, 430-431; Pitman v. City of New York, 141 App. Div. 670, 672; Treadwell v. City of Yonkers, 192 App. Div. 421, 423) is completely set apart by its distinctive rationale from the body of cases which denies municipal liability on the broad ground that the sovereign can do no wrong. (See, e.g., Maximilian v. Mayor, 62 N. Y. 160,164-165; Lefrois v. County of Monroe, 162 N. Y. 563, 566-567; Wilcox v. City of Rochester, 190 N. Y. 137, 141-142; Matter of Gewerts v. Berry, 258 N. Y. 505, 508.) The first set of cases rests immunity on the policy of maintaining the administration of municipal affairs in the hands of state or municipal executive officers as against the incursion of courts and juries, while the other rests the immunity on the sovereign character of the state or municipality in the performance of its governmental functions. Bernardine v. City of New York (294 N. Y. 361) makes it clear that the line of cases which predicated immunity from suit on the mere abstract principle of governmental sovereignty lost its legal force and effect with the passage of the Court of Claims Act. But Urquhart v. City of Ogdensburg (91 N. Y. 67, supra) and the cases which follow it retain their vitality in our system of law, since there is no indication in section 8 of the Court of Claims Act that the State intended to broaden the scope of liability in an area where the sovereign immunity rule had already been withdrawn.

Lawfully authorized planning by governmental bodies has a unique character deserving of special treatment as regards the extent to which it may give rise to tort liability. It is proper and necessary to hold municipalities and the State liable for injuries arising out of the day-by-day operations of government —for instance, the garden variety injury resulting from the negligent maintenance of a highway — but to submit to a jury the reasonableness of the lawfully authorized deliberations of executive bodies presents a different question. (See Dalehite v. United States, 346 U. S. 15, 42; Feres v. United States, 340 U. S. 135,141-142; United States v. Union Trust Co., 221 F. 2d 62, 75-78, affd. 350 U. S. 907; 2 Harper and James, Law of Torts [1st ed., 1956], p. 1608; Herzog, Liability of the State of New York for Purely Governmental ” Functions, 10 Syracuse L. Rev. 30, 31-33; Peck, The Federal Tort Claims Act: A Proposed Construction of the Discretionary Function Exception, 31 Wash. L. Rev. 207, 209.) To accept a jury’s verdict as to the reasonableness and safety of a plan of governmental services and prefer it over the judgment of the governmental body which originally considered and passed on the matter would be to obstruct normal governmental operations and to place in inexpert hands what the Legislature has seen fit to entrust to experts. Acceptance of this conclusion, far from effecting revival of the ancient shibboleth that ‘ the king can do no wrong ”, serves only to give expression to the important and continuing need to preserve the pattern of distribution of governmental functions prescribed by constitution and statute.

In the case before us, the Common Council of Buffalo, acting through its delegated agent, the Board of Safety, made extensive studies of traffic conditions at the intersection of Delaware and Délavan Avenues. It was its considered judgment, based on these studies, that four seconds represented a reasonably safe ‘ clearance interval ’ ’ and there is nothing to suggest that its decision was either arbitrary or unreasonable. To state the matter briefly, absent some indication that due care was not exercised in the preparation of the design or that no reasonable official could have adopted it — and there is no indication of either here — we perceive no basis for preferring the jury verdict, as to the reasonableness of the “clearance interval”, to that of the legally authorized body which made the determination in the first instance. Indeed, as we read the lengthy and involved body of testimony before the jury, there is ample basis for doubting that body’s capacity to arrive at a conclusion as to the “ clearance interval’s ” reasonableness.

The plaintiffs contend that the Court of Claims Act destroyed any and all facets of governmental immunity and that numerous decisions of this court have so held. Such a reading of the statute and our cases is mistaken. In providing that “ The state hereby waives its immunity from liability and action and hereby assumes liability and consents to have the same determined in accordance with the same rules of law as applied to actions in the supreme court against individuals or corporations ” (Court of Claims Act, § 8), the Legislature intended to put an end to the immunity of the State which derived from its status as a sovereign. In other words, it was the legislative design that, in respect of its legal status, the State be treated like any individual or corporation. This is far different from saying, however, that the Court of Claims Act places the State on a parity with private corporations or individuals in respect of all of its defenses. Neither the language of the statute nor its tenor supports such a view.

Nor is it sustained by our decisions. In Bernardine v. City of New York (294 N. Y. 361, supra), the injury sued upon was caused by a runaway police horse, and we found the municipality liable because its sovereign status was not a defense; maniifestly, no question of immunity for acts of planning government services was raised. In McCrink v. City of New York (296 N. Y. 99), the injury resulted from the Police Commissioner’s having retained an habitual drunkard on the force, and we held that the city was subject to liability; but, here again, there was' no question concerning the exercise of expert judgment in the course of government planning for the public safety. In Murphy v. De Revere (304 N. Y. 922), Nuss v. State of New York (301 N. Y. 768) and Van de Walker v. State of New York (278 N. Y. 454), the court was solely concerned with the defendant’s liability for improper maintenance or operation of a traffic signal, not its planning or designing. And, in Eastman v. State of New York (303 N. Y. 691), although the suit seems to have been predicated, in part, on the State’s negligence in planning an intersection without a stop sign, our affirmance rested on an entirely different theory. The court’s decision simply reflected the rule that, once having planned the intersection, the State was under a continuing duty to review its plan in the light of its actual operation and that the proof established a breach of such duty. More particularly, the court considered, as sufficient to demonstrate a violation of the State’s continuing obligation to maintain the safety of the highways, evidence that physical conditions had changed at the intersection and that a number of accidents had occurred after the stop sign had been removed. In the case before us, however, the situation is quite different; there is no showing that the continuing obligation which, rested on the municipality was violated. There is no proof either of changed conditions or of accidents at the intersection which would have required the city to modify the signal light ‘ clearance interval ”. In point of fact, it appeared that the signal lights had operated for upwards of three years, with an estimated 1,521,705 traffic changes, without evidence of a single accident.

To conclude: The immunity which the State enjoyed solely by reason of its status as a sovereign had been severely criticized as unjust and ill adapted to the facts of modern life. The State’s explicit waiver of such immunity reflected the felt needs of the times. Nothing in the legislative history of the Court of Claims Act, however, indicates that the waiver provision was designed to override the well-defined and carefully reasoned body of law governing the measure of the State’s responsibility for highway safety. The city’s defense which we here sustain rests not on any anachronistic concept of sovereignty, but rather on a regard for sound principles of government administration and a respect for the expert judgment of agencies authorized by law to exercise such judgment. In.the area of highway safety, at least, it has long been the settled view, and an eminently justifiable one, that courts should not be permitted to review determinations of governmental planning bodies under the guise of allowing them to be challenged, in negligence suits; something more than a mere choice between conflicting-opinions of experts is required before the State or one of its subdivisions may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public. No such evidence was offered here.

To those who begin with the assumption that the signal light design involved in this case was faulty, our decision must of riecessity seem harsh and reminiscent of outmoded theories of governmental immunity. BuL it is precisely the validity of that assumption which is at issue; to assume its validity is to beg the question. We are of the opinion tha* the traditional reliance on a jury verdict to assess fault and general tort liability is misplaced where a duly authorized public planning body has entertained and passed on the very same question of risk as would ordinarily go to the jury. Although a jury verdict is to be highly regarded, it is neither sacrosanct nor preferable to the judgment of an expert public planning body. For this reason, liability for injury arising out of the operation of a duly executed highway safety plan may only be predicated on proof that the plan either was evolved without adequate study or lacked reasonable basis.

In each action, the judgment insofar as appealed from by the City of Buffalo should be reversed and the complaint dismissed, with costs in all courts. In action No. 1, the judgment insofar as appealed from by the plaintiff, Weiss, should be affirmed, without costs.

Desmond, Ch. J.

(dissenting). Despite ample proof of the city’s causative negligence in providing too brief a clearance interval for the east-west traffic light at this busy and dangerous intersection, the city is adjudged to be as matter of law immune from liability for such fault. Such a holding is in direct opposition to the applicable precedents, particularly Eastman v. State of New York (303 N. Y. 691). (See, also, Van de Walker v. State of New York, 278 N. Y. 454; Nuss v. State of New York, 301 N. Y. 768, and Murphy v. De Revere, 304 N. Y. 922.) In Eastman we rejected the very defense here held to be an absolute one: that is, the defense that the malfunctioning of this light was the result of governmental planning by qualified officers. (In other words, that the city “ planned it that way ”.)

By this decision we are taking a long and surprising step backward into the old, abandoned area of governmental immunity. As far back as 1928 (Augustine v. Town of Brant, 249 N. Y. 198, 205) this court noted that “ The modern tendency is against the rule of nonliability ’ ’. Any exemption from liability (Parsons v. City of New York, 273 N. Y. 547) for improper maintenance of traffic signal lights was eliminated by Eastman and Nuss (supra). Since there is liability for eliminating a stop sign formerly in place (Eastman) or for failing to keep an existing traffic stop sign in such condition and location as to be visible (Nuss), there must for stronger reasons be liability where, as found here by the jury on sufficient evidence, the city so adjusted the traffic light that there was not sufficient time for east-west traffic moving on the green light to cross before opposing or north-south traffic was invited into the intersection by the change of the light. Significantly, Rhyne on Municipal Law (p. 433) notes that nonliability for defective operation of traffic lights is the rule “ in jurisdictions where there is no statutory waiver of sovereign immunity”.

It is not the law that liability of a municipality can never be the result of a choice between decisions, in the course of governmental planning. Certainly Eastman (supra) involved such a policy choice or exercise of discretion, as did McCrink v. City of New York (296 N. Y. 99, see pp. 105-106) and Schuster v. City of New York (5 N Y 2d 75). In McCrink we held specifically (p. 106) that governmental discretion of a chief executive officer was “ superseded by the duty to abate ” the risk.

Even if the timing of a single traffic light could be considered the kind of high-level policy decision not reviewable by the courts there would still be another basis for liability here, that is, the creation by the city’s affirmative act of a trap or a nuisance. The city cannot escape liability where its ‘ ‘ policy decision” thus causes a “danger so needless that the choice becomes unreasonable” (Stern v. International Ry. Co., 220 N. Y. 284, 291; see Kamnitzer v. City of New York, 265 App. Div. 636; Karnasiewics v. New Britain, 131 Conn. 691). It incurs liability when in abating one risk it unreasonably creates another (Majka v. Haskell, 301 N. Y. 206, 210). It could in its discretion decide whether to have a stop-go light or some other control device or no device at all but, having assumed to act, it had to act carefully (Glanzer v. Shepard, 233 N. Y. 236, 239; Moch Co. v. Rensselaer Water Co., 247 N. Y. 160,167). “ Appellant having elected to install, and having installed the signal system in question, it was a corporate duty not to permit its operation in a manner calculated to cause injury to others” (Johnston v. City of East Moline, 405 Ill. 460, 468).

The very distinction now attempted to be made between the present case and Eastman and Nuss (supra) seems to have been overruled in Murphy v. De Revere (304 N. Y. 922, supra). Even if Eastman applies only where there is a specially dangerous situation (see Vitetta v. State of New York, 285 App. Div. 1114, motion for leave to appeal denied 309 N. Y. 1031), this would not help the city in the present case since the extraordinarily heavy traffic on Delaware and Delavan Avenues created obvious dangers which were recognized when the city installed the lights and invited motorists to proceed into the intersection on the green light.

The judgment should be affirmed, with costs.

Judges Dye, Burke and Foster concur with Judge Fuld; Chief Judge Desmond dissents in an opinion in which Judges Froessel and Van Voorhis concur.

Judgment accordingly. 
      
      . The same is true of Johnston v. City of East Moline (405 Ill. 460) — upon which the dissent relies (p. 590) —for there the intersection collision occurred at a time when, to the city’s knowledge, the traffic signal, which was supposed to control westbound traffic, was unlighted and out of commission. It should also be noted that the quotation from Rhyne on Municipal Law, appearing in the dissenting opinion (p. 590), likewise relates only to the “ operation ” of traffic lights.
     