New York State Court of Claims

New York State Court of Claims

PANNES v. THE STATE OF NEW YORK, #2000-007-017, Claim No. 97750, Motion No. M-61485


Synopsis


Claimant, the coach of a basketball team, was injured when fans started fighting following the game. Defendant's motion for summary judgment was granted.

Case Information

UID:
2000-007-017
Claimant(s):
PETER H. PANNES The caption has been amended to reflect the proper defendant.
Claimant short name:
PANNES
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect the proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
97750
Motion number(s):
M-61485
Cross-motion number(s):

Judge:
John L. Bell
Claimant's attorney:
Leslie R. Lewis, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General(Roger B. Williams, Esq., Assistant Attorney General, of Counsel)
Third-party defendant's attorney:

Signature date:
May 24, 2000
City:
Plattsburgh
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision


Defendant has made an application for an order granting summary judgment dismissing the claim. The motion was returnable on May 3, 2000. The following papers were read and considered by the court:

Notice of Motion, Affirmation of Roger B.

Williams, Esq., Annexed Exhibits,
Memorandum of Law 1, 2, 3, 4

Affidavit in Opposition of Leslie R. Lewis, Esq. 5

Reply Affirmation of Roger B. Williams, Esq. 6

Filed Papers: Claim, Answer 7, 8

Claimant, the coach of the Herkimer Community College basketball team, traveled with his team to a game at the State University of New York College of Technology at Canton on November 12, 1997. Following the game, the two teams lined up to shake hands. As the players were proceeding through the line shaking hands, two of the players began to scuffle. Claimant quickly stepped between the players in an effort to quell the altercation. Unfortunately, spectators fueled the fracas and a series of fights ensued. As claimant attempted to gather his team together to exit the gymnasium, he was punched numerous times by the brawling fans. Claimant's injuries included, inter alia, a fractured nose. He subsequently commenced the current claim, alleging that defendant negligently failed to provide proper crowd control in the gymnasium. Disclosure has been completed and a note of issue filed. Defendant now moves for summary judgment dismissing the claim.

When the State acts in its proprietary capacity as an owner of premises, it is held to the same rules of reasonableness that governs negligence actions against its citizens (see, Miller v State of New York, 62 NY2d 506, 513; Preston v State of New York, 59 NY2d 997). If, however, the alleged negligence occurred as the State performed a governmental function, liability is precluded unless there is a "special relationship" between the injured party and the State (see, e.g., Balsam v Delma Eng'g Corp., 90 NY2d 966; Kircher v City of Jamestown, 74 NY2d 251). Claimant has not alleged a special relationship and therefore the dispositive issue is whether the alleged acts of negligence can be construed as falling within the State's proprietary capacity.

The facts presented reflect that defendant acted in a dual capacity, exercising a proprietary capacity as the owner of the premises and a governmental function in providing security on the premises. Courts have noted the difficulty posed to the analysis when the State's role does not fall clearly into one area of activity (Miller v State of New York, 62 NY2d 506, 511, supra; see, Bonner v City of New York, 73 NY2d 930, 934 [Simons, J., dissenting]). A "continuum of responsibility" has been identified that begins with the public entity's duty to provide simple maintenance of its property and gradually extends to more complex measures of safety and security for a greater area and populace (Miller v State of New York, supra, at 511). The Court of Appeals has instructed that "[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 involved is engaged generally in proprietary activity or is in control of the location in which the injury occurred" (Weiner v Metropolitan Transp. Auth., 55 NY2d 175, 182). A close review of the allegations in the claim and bill of particulars is necessary to ascertain whether liability may be implicated by the alleged culpable conduct (see, McEnaney v State of New York, AD2d , 700 NYS2d 258; Ruchalski v Schenectady County Community Coll., 239 AD2d 687, 688).

In his claim, claimant alleges as follows:
"THIRD: This claim is for negligence of the State of New York and State University of New York College of Technology at Canton, its officers, agents and employees in their failure to provide proper control personnel in the gymnasium area, and for further failing to supervise and control a rowdy, unruly, dangerous, taunting and threatening crowd in said gymnasium, and for their failure to maintain order among the fans and players in any form, at the State University of New York College of Technology at Canton, New York."

Claimant's bill of particulars essentially reiterates the allegations of the claim, stating:

"5. The negligence of the defendant consisted of failing to provide proper control personnel in the gymnasium area, and for further failing to supervise and control a rowdy, unruly, dangerous, taunting and threatening crowd in said gymnasium; in failing to maintain order, in any form, among the fans and players at said SUNY-Canton."

In opposition to the current motion, claimant has submitted only an attorney's affidavit, which asserts as follows regarding defendant's purported culpable conduct:
"3. The defendant had no security personal [sic] directly assigned to supervise the basketball game. * * * One security officer was assigned to general patrol of the campus including the basketball game. * * *.


4. As a result of defendant's failure to have sufficient security personal [sic] at the basketball game plaintiff [sic] Peter H. Pannes was injured while trying to restrain individuals involved in the altercation.


5. Defendant was negligent in failing to provide proper and sufficient security supervision of the basketball game to protect against just the consequence which occurred[.]"

It is evident from the pleadings and papers presented on the motion that the essence of claimant's contention is that there was inadequate security at the basketball game. The Appellate Division, Third Department, has recently stated that providing security against physical attacks by third parties, including such security on a college campus, is a governmental function from which no liability follows absent a special relationship (McEnaney v State of New York, AD2d , 700 NYS2d 258, 261, supra; see, Bonner v City of New York, 73 NY2d 930, 932, supra; Ruchalski v Schenectady County Community Coll., 239 AD2d 687, supra; but see, Mancuso v State of New York, 226 AD2d 320 [First Dept.]).

The court is cognizant that there is authority holding that a non-governmental entity has a duty to provide proper security when it gathers a crowd for a sporting event (Philpot v Brooklyn Natl. League Baseball Club, 303 NY 116, 121). The Court of Appeals, however, has instructed that although a commercial entity may be required to furnish security for a particular activity, a governmental body performing a similar activity does not have the same obligation to assign police (Miller v State of New York, supra, at 514 [Kaye, J., concurring]; Weiner v Metropolitan Transp. Auth., supra). Here, claimant has not alleged, for example, that doors to the gymnasium were insufficiently maintained to permit reasonable exit resulting in injury as the crowd pushed toward the inadequate doors (see, Miller v State of New York , supra; cf., Rotz v City of New York, 143 AD2d 301). Instead, his allegations and arguments are directed exclusively at the level of security provided, an issue that precedent controlling on this court instructs cannot form the basis for liability unless a special relationship existed (McEnaney v State of New York, supra; Ruchalski v Schenectady County Community Coll., supra; see generally, 1A NY PJI 2:225, at 992-993 [3d ed 2000]).

Finally, the court appreciates the frustration claimant must have felt regarding the events following the basketball game and his desire to be compensated for the injuries he sustained. Unfortunately, the area of law involving alleged governmental failure to provide adequate security overflows with examples of innocent individuals whose injuries go uncompensated (see, McEnaney v State of New York, supra [student at the State University of New York at Albany shot while attempting to disarm gunman holding students hostage]; Ruchalski v Schenectady County Community Coll., supra [student in college cafeteria struck in the head and knocked unconscious during sudden fight among other students]; Adams v State of New York, 210 AD2d 273 [claimant struck by bullet fired from a dormitory while walking on the campus of the State University of New York at Farmingdale]; Laura O. v State of New York, 202 AD2d 559 [claimant, a student at the State University of New York at Purchase, assaulted and raped in a campus music building]). Claimant, however, will undoubtedly find little consolation that his misery has been shared by many.

It is

ORDERED that defendant's motion is granted and the claim is dismissed.


May 24, 2000
Plattsburgh, New York

HON. JOHN L. BELL
Judge of the Court of Claims