
    Charles Bonner, Respondent, v City of New York, Defendant, and Board of Education of the City of New York, Appellant.
    Argued January 5, 1989;
    decided February 16, 1989
    
      APPEARANCES OF COUNSEL
    
      Peter L. Zimroth, Corporation Counsel (Margaret G. King and Edward F. X. Hart of counsel), for appellant.
    
      David Jacobs for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the complaint dismissed.

On June 2, 1983, plaintiff, a New York City public school teacher, and five other school teachers were assigned to supervise the school playground at P.S. 153 in Manhattan during a play period. On the two sides that border City streets, the playground is enclosed by a high chain link fence and can be entered through iron gates — one gate on the north side of the playground, the other on the south. When plaintiff entered the playground, he saw several older children, not then students of the school, playing basketball there. Plaintiff locked the gate on the south side, and because the north gate was off its hinges and could not be locked, he stationed himself at that gate; as plaintiff testified, when a playground gate was unlocked during the play period his job was to be posted at the gate for the security of the school children in the yard. The teacher in charge of the playground later asked plaintiff to break up a fight between two boys, which he did. Discovering that one of the two boys was not a student at the school, plaintiff forcibly escorted him out through the schoolyard’s north gate. After the boy’s older cousin came into the yard and pushed plaintiff, the boy returned to the playground with a baseball bat, swung it at plaintiff and injured his wrist.

In this personal injury action plaintiff complained that defendants were negligent in allowing the gate to remain broken, failing to provide adequate levels of security in the schoolyard or provide proper training to teachers and persons charged with supervision during play periods, failing to assist plaintiff during the altercation, allowing intruders to enter the playground, failing to provide sufficient personnel at the broken gate to prevent their entry, and allowing the play period in the schoolyard despite the broken gate. The jury returned a verdict of $200,000 in favor of plaintiff and against defendant Board of Education, finding plaintiff 50% responsible for his own injuries. The Appellate Division affirmed plaintiff’s judgment, without opinion.

Contrary to plaintiff’s assertions, the particular negligence alleged is not the failure to fulfill a proprietary function, for which a municipal defendant may be held liable (see, Miller v State of New York, 62 NY2d 506). Plaintiff’s claim is premised on the contention that defendant’s security system — of which he concededly became a part when he stationed himself at the north gate — was inadequate to protect him from criminal activity. It is settled, however, that the provision of security against physical attacks by third parties in circumstances as are presented here, is a governmental function involving policymaking regarding the nature of the risks presented, and that no liability arises from the performance of such a function absent a special duty of protection (see, Vitale v City of New York, 60 NY2d 861; Glick v City of New York, 42 NY2d 831, affg on mem at 53 AD2d 528; see also, Marilyn S. v City of New York, 73 NY2d 910 [decided today]). In that a governmental function is at issue here, and plaintiff failed to establish that defendant had assumed a special duty to him, there was no legal basis for the judgment in his favor.

While we do not dispute the description of our prior holdings recited in the dissent, we do disagree as to their application to the facts of this case. As the dissent observes, providing security to public school teachers against criminal acts by third parties is a governmental function, and a school may not be liable for negligence in the absence of a special duty. Where we part company is with respect to the conclusion that the conduct at issue here may be likened to the school’s failure to repair steps. Despite the trial court’s erroneous submission of the matter to the jury on the theory that only a proprietary function was at issue, plaintiff’s own testimony established that his station at the schoolyard’s north gate was in accordance with prior instruction, for the security of the school children, when the gate could not be locked. The situation is not unlike Marilyn S. v City of New York (supra), also decided today. While plaintiff there portrayed the alleged failure as "proprietary” — arguing that a system of locks already in place was not maintained in a reasonable fashion— we all agree that the school’s failure to maintain the key control system in that case was an aspect of the school’s overall security system and thus a governmental function; the same may be said of the north gate in this case.

Finally, we note that the issues in this case are presented to us solely in terms of "governmental” and "proprietary” functions (see, Matter of County of Monroe, 72 NY2d 338), and thus reconsideration of the distinction in the present context is unwarranted.

Simons, J.

(dissenting). I cannot agree with the majority’s conclusion that plaintiff’s verdict rests upon a finding that the school district breached a governmental duty. While plaintiff alleged that defendant breached both governmental and proprietary duties to him, the court submitted to the jury solely the question of whether defendant breached a proprietary duty in failing to properly maintain the lock on the playground gate. The majority’s analysis of governmental functions and special duty is not pertinent. Since the school district’s duty to maintain the playground gate was proprietary in nature, under Miller v State of New York (62 NY2d 506) plaintiff did not have to prove that the school district owed him a special duty to recover for its negligence (see, Cuffy v City of New York, 69 NY2d 255, 260-261). Accordingly, I would affirm the order of the Appellate Division. I write at some length because I believe that the majority, in reversing that order, has clouded the rules governing cases of this type and has cast serious doubt on the continuing validity of Miller v State of New York (supra).

Under settled principles, providing security to public school teachers against criminal acts by third parties is a governmental function; the plaintiff is required to plead and prove the existence of a special duty owed to him by school authorities before the school may be liable for negligence (Vitale v City of New York, 60 NY2d 861; Glick v City of New York, 42 NY2d 831, affg 53 AD2d 528). The rule is no more than the logical extension of the principle that a municipality may not be held liable for injuries resulting from the failure to provide police protection (Cuffy v City of New York, supra, at 260; Sorichetti v City of New York, 65 NY2d 461, 468; Riss v City of New York, 22 NY2d 579). It rests on a judicial recognition that a municipality’s provision of security to the public is a matter of allocating limited public resources and is better left to the discretion of the other two branches of government (see, Weiner v Metropolitan Transp. Auth., 55 NY2d 175, 181; Riss v City of New York, supra; Motyka v City of Amsterdam, 15 NY2d 134, 138).

Conversely, when the government acts in a proprietary capacity, as a landowner or landlord, it is subject to the same principles of tort law as a private individual; liability for negligence may be found even absent the existence of a special duty (Miller v State of New York, 62 NY2d 506, supra; Preston v State of New York, 59 NY2d 997; Court of Claims Act § 8). Although governments have always had that duty, formerly claims against them were barred by the doctrine of sovereign immunity and could not be enforced (see, Schuster v City of New York, 5 NY2d 75, 83; Bernadine v City of New York, 294 NY 361). Since the State’s waiver of sovereign immunity, however, the doctrine no longer forecloses liability for breach of a proprietary duty.

Concededly, it is difficult to draw the line between claims resting upon a breach of a proprietary duty and those resting upon a governmental duty. A governmental entity’s conduct, as we said in Miller v State of New York (62 NY2d 506, 511-512, supra), "may fall along a continuum of responsibility to individuals and society deriving from its governmental and proprietary functions. This begins with the simplest matters directly concerning a piece of property for which the entity acting as landlord has a certain duty of care, for example, the repair of steps or the maintenance of doors in an apartment building. The spectrum extends gradually out to more complex measures of safety and security for a greater area and populace, whereupon the actions increasingly, and at a certain point only, involve governmental functions, for example, the maintenance of general police and fire protection.” (Emphasis added.) In fixing the place on the continuum where any given conduct falls, "[i]t is the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred which governs liability, not whether the agency is engaged generally in proprietary activity or is in control of the location in which the injury occurred” (Weiner v Metropolitan Transp. Auth., supra, at 182 [emphasis added]; see also, Miller v State of New York, supra, at 513). Applying that standard, the conduct of which plaintiff complains constituted a breach of a proprietary duty. An analysis of the Weiner and Miller cases illustrates why.

In Weiner, the plaintiff was assaulted by an intruder while walking down the steps to the subway train level in a station owned and maintained by defendant authority. The plaintiff argued that the operation of a commuter railroad constituted a proprietary function and that liability for failure to provide adequate police protection at the train station could result absent the existence of a special duty (see, e.g., Nallan v Helmsley-Spear, Inc., 50 NY2d 507). The court rejected plaintiff’s contention and held that the specific omission alleged to be negligent — "the absence of police surveillance at the entrance and the failure to warn of criminal activity in the area or close the entrance when police protection was not available” — was not actionable, absent a special duty, because it required juries and courts to interfere with the legislative and executive decision how to utilize security resources (Weiner v Metropolitan Transp. Auth., supra, at 182, citing Riss v City of New York, 22 NY2d 579, supra).

In Miller, a State University student was raped in the basement of her on-campus dormitory by a nonstudent intruder. She sought to predicate liability upon the school’s negligent failure to provide adequate police protection and failure to lock the exterior dormitory doors. We held that plaintiff could recover on the latter theory because it involved a breach of the State’s proprietary duty as landlord rather than a breach of a governmental duty to provide security (62 NY2d, at 514 supra).

In this case, the trial court properly relied on Miller in denying the school district’s motion to dismiss. The one actionable claim proven — and the only theory of liability submitted to the jury — was that the school district was negligent in failing to repair the gate at 147th Street despite the Board’s knowledge that it was broken and that intruders had caused problems on the school premises in the past. The duty to maintain this gate so that it could be locked involved the same considerations as did the duty to lock the exterior dormitory doors in Miller. Imposing such a duty on defendant does not require the court or the jury to interfere with executive-legislative decisions of how to best allocate police or security resources and, manifestly, it does not impose a duty upon municipalities to post security guards at every school at the risk of being exposed to crushing liability. The duty imposed is only to maintain premises, a duty which has always been imposed on property owners and on which liability against the State may rest, now that the State has waived immunity from suit.

It is particularly troublesome that in deciding against plaintiff the majority relies upon Glick v City of New York (42 NY2d 831, affg 53 AD2d 528, supra) and Vitale v City of New York (60 NY2d 861, supra) because under the Weiner-Miller analysis those cases are not on point. In Glick, the plaintiff, a female teacher, was assaulted by a male student in a woman’s bathroom at a public high school. The plaintiff alleged three theories of negligence: (1) failing to provide adequate supervision at the school, (2) permitting the student to remain at the school with knowledge of his dangerous propensities and (3) in failing to transfer the student to a different school. We affirmed dismissal of the complaint on the memorandum at the Appellate Division which concluded that liability could not be sustained absent proof that the school owed a special duty to the student. That case presented only a dispute on how to best adopt and implement a security plan and whether or not to dismiss or transfer a troublesome student. Those are governmental functions and the case is not a useful parallel to this case involving defendant’s failure to maintain the lock on a schoolyard gate.

Similarly, in Vitale, we dismissed the complaint of a teacher who was injured when he tried to break up an altercation between students in the hallway of a school. The claim of liability rested upon the school’s alleged failure to observe its own detailed security plan. Plaintiff did not contend that the defendant breached a proprietary duty; instead he conceded that the act of negligence was governmental in nature and attempted to establish that the school owed him a special duty (see, 60 NY2d, at 863, supra). We rejected that argument and held that "[njothing in the adoption or content of the [security] plan warrants a finding that it was designed or intended specifically for his benefit or that of other teachers in the school” (id.). Vitale is useful for determining whether or not a relationship between a plaintiff and a defendant can be considered "special”, but it offers no help in determining whether a specific act or omission is governmental or proprietary in nature and it certainly does not support the majority’s holding in this case in which the verdict rests on a failure to perform a proprietary duty.

Finally, it should be clear that the finding of no liability in Glick and Vitale did not rest solely on the circumstances that they involved attacks by third parties on premises owned by a public school. It would be inaccurate to conclude that because the property was owned by the school district or because providing public education is governmental, liability cannot be sustained against defendant in the absence of a special duty. The Weiner and Miller decisions reject such an approach and hold that liability rests upon a consideration of the underlying purpose to be served by the special duty rule (see, Riss v City of New York, 22 NY2d 579, 582, 583, supra). Indeed, we recognized this in Crosland v New York City Tr. Auth. (68 NY2d 165, 169, n 3) by specifically disapproving Ammirati v New York City Tr. Auth. (117 Misc 2d 213, 217) which had failed to apply the Weiner test in that way.

Moreover, an affirmance here is consistent with the result in Marilyn S. v City of New York (73 NY2d 910 [decided today]). According to the plaintiff’s expert in that case, the establishment and management of the key control system at the high school was a critical aspect of the over-all security system of the school. Implementing such a system presents problems because regardless of how carefully the school attempts to control keys, extra ones will be distributed to substitute teachers or teachers who forget theirs, and others will be lost as teachers retire or are transferred. Given those circumstances, school officials must decide at what point it is cost effective and practical to avoid risk by requiring that the lock cylinders be changed and new keys issued. Such decisions are policy choices involving the, distribution of a limited amount of allocated resources and require the exercise of judgment and discretion in making the necessary tradeoffs with other or additional security measures. As such they differ completely from the landlord’s obligation to maintain premises and are properly considered governmental, not proprietary, activities for which the school district may not be liable absent a special duty.

The school district also contends that even if it had a proprietary duty to maintain the playground gate in a condition in which it could be locked, it should not be held liable because the New York City Building Code mandates that the school playground gates must be open at all times when the school building or schoolyard is occupied in order to provide an exit from the building and schoolyard to a public street (Administrative Code of City of New York former §§ C26-602.1 —602.4 [now §§ 27-361 — 27-364]). Since it was unlawful for it to lock the gates, the school district contends it could not at the same time be under a duty to lock them to prevent outsiders from entering the schoolyard and injuring plaintiff. Thus, it urges the failure to maintain the gate in a condition in which it could be locked was not, as a matter of law, the proximate cause of plaintiff’s injuries (Sheehan v City of New York, 40 NY2d 496, 501; Saugerties Bank v Delaware & Hudson Co., 236 NY 425). Whatever the correct legal interpretation of the Building Code provisions, the school district acquiesced in the trial court’s decision to submit the interpretation and application of them to the jury as questions of fact. The jury found- against the school district and, having acquiesced in that procedure, it may not now urge that the court should have dismissed the action because, as a matter of law, the gate had to remain open (see, Martin v City of Cohoes, 37 NY2d 162, 165-166).

Accordingly, I dissent and vote to affirm.

Judges Kaye, Alexander, Hancock, Jr., and Bellacosa concur in memorandum; Judge Simons dissents and votes to affirm in an opinion in which Chief Judge Wachtler concurs; Judge Titone taking no part.

Order reversed, etc.  