New York State Court of Claims

New York State Court of Claims

FULFORD v. STATE OF NEW YORK, #2001-018-103, Claim No. 99881, Motion No. M-63356


Synopsis


Defendant's summary judgment motion granted dismissing the claim as the primary facts are not in dispute and there are no factual issues to be resolved by a trial.

Case Information

UID:
2001-018-103
Claimant(s):
JOHN E. FULFORD
Claimant short name:
FULFORD
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99881
Motion number(s):
M-63356
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
GERARD A. STRAUSS, ESQUIRE
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: GORDON J. CUFFY, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
September 18, 2001
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Defendant brings this motion seeking summary judgment pursuant to CPLR 3212. The claimant opposes the motion.

The claim seeks damages for the alleged negligence of the State in failing to provide security and protection and a safe place to reside for student residents of South Hall dormitory at the State University of New York at Morrisville (hereinafter SUNY Morrisville), and further alleges that the State permitted the dormitory to remain "not properly patrolled and supervised and to be in a dangerous, unsafe and defective condition and in a manner resulting in the creation of a hazard to residents of said dormitory and other lawful users of said dormitory and by having permitted such dangerous and defective condition to exist for a considerable period of time for which they should have taken proper precautions to protect the health and safety of the lawful users thereof, including this claimant." (Claim ¶5) Claimant was allegedly involved in a physical altercation with a fellow student on October 26, 1997, at 3:00 a.m., in South Hall, which resulted in him suffering physical injuries, including a laceration to his lip and displacement of his tooth. (Claim ¶3, Defendant's Exhibit A page 32)

Defendant argues that it is entitled to partial judgment as a matter of law, and submits in support of its application, the deposition testimony of claimant and the deposition testimony of Geoffrey Isabelle, the director of Campus Life at SUNY Morrisville.[1]
Defendant maintains that the basis for the claim is the failure to provide security which stems from the State's police powers, a governmental function for which the State is immune from liability unless a special relationship can be shown. Claimant has not alleged the existence of a special relationship. Alternatively, if claimant seeks to hold the defendant liable based upon its role as a landlord, a proprietary function for which no immunity exists, liability arises only where defendant failed to take proper precautions to protect claimant from a foreseeable risk of harm. Here, claimant testified in his deposition that he did not previously know the student who hit him, nor did he have any history of conflict with him; the assault was simply not foreseeable. . There is also no indication that the assailant had a propensity for violence and that the State or claimant were aware of it. Furthermore, the student was a resident of the same dorm as claimant, and defendant argues that a landlord is not liable for an assault perpetrated by a resident.
Claimant, in opposition, asserts that defendant has mis-characterized his theory of liability. It is claimant's position that the negligence of defendant's employees, in particular the resident advisor, in failing to report and by encouraging the consumption of alcoholic beverages in South Hall during the 1997 fall semester, constitutes negligence in the performance of a ministerial function for which the defendant is not immune and may be held liable. Claimant contends that defendant has failed to controvert these which are supported by claimant's notice to produce which seeks copies of reports made by resident advisors regarding the illegal consumption of alcohol, and defendant's response advising that such reports are not accessible.

Summary judgment, as frequently described, is a drastic remedy which should only be granted where the movant has sufficiently established entitlement to judgment as a matter of law by submission of evidentiary proof in admissible form. (
Zuckerman v City of New York, 49 NY2d 557, 562) Summary judgment is not frequently granted in negligence cases since these cases typically involve numerous factual issues, including the issue of whether defendant's conduct was negligent. However, here the primary facts are not in dispute and there are no factual issues to be resolved by a trial. As a result the Court agrees with defendant, that it is entitled to summary judgment.
The undisputed facts establish the following: Claimant was seventeen years old and a freshman resident of South Hall Dormitory at SUNY Morrisville. On Saturday, October 26, 1997, claimant and his roommate were visiting friends, Terrill Osborne and "Vinnie" in their room, which was two rooms down from claimant's room, when at approximately 3:30 a.m., Paul Gagnon and his roommate returned to the dormitory intoxicated. Mr. Gagnon's roommate and "Vinnie" engaged in an argument which lasted a few minutes about beer bottles which were left in the bathroom. Immediately thereafter, Mr. Gagnon and his roommate returned to their room. In an effort to discuss the situation, Mr. Osborne, Claimant and his roommate went to Mr. Gagnon's room. Claimant waited outside with Mr. Osborne while claimant's roommate went in to speak with Mr. Gagnon and his roommate. While standing outside Mr. Gagnon's room, claimant stated to Mr. Osborne, "the beer muscles must be out tonight." Claimant then turned and began walking toward his own room, when he heard someone coming behind him. He turned around just in time to be struck in the mouth by Mr. Gagnon. A physical altercation occurred.

Claimant was bleeding due to a laceration to his lip and one of his teeth being pushed back, which he discovered upon seeing himself in a bathroom mirror immediately following the incident. Claimant did not know Mr. Gagnon previously although he may have seem him before, nor did he know of Mr. Gagnon being involved in previous altercations. There is no evidence that the college was aware that Mr. Gagnon had been involved in any other altercations. When the liability of the State is at issue "it 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..." (
Miller v State of New York, 62 NY2d 506, 513) This analysis is necessary because the State, although having waived sovereign immunity for liability arising from its proprietary functions, still enjoys immunity for its governmental functions. (Court of Claims Act §8; Miller v State of New York, supra at 509)
The claim asserts negligence in the State's failure to provide "security and protection," or a "safe place to reside" and for its failure to properly patrol and supervise the dormitory. (Claim ¶¶ 4 and 5) which involve allegations of police protection, a governmental function for which the State still enjoys immunity from liability, unless a special relationship is shown. (
Miller v State of New York, supra) Claimant has not alleged the existence of a special relationship in his pleadings, nor in his responding papers to this motion. In fact, claimant has not disputed defendant's assertion that no liability can be imposed upon the State for any portion of the claim seeking damages for the failure to provide security and protection because of governmental immunity.
Claimant also did not dispute defendant's assertion that the State cannot be held liable in its role as the operator of dormitories, which involves the State acting as a landowner, a proprietary capacity, subjecting it to the same rules of liability as a private citizen. (
Miller v State of New York, supra) In its proprietary capacity as landowner the State, like other landowners, must keep its premises reasonably safe based upon all of the circumstances. (Basso v Miller, 40 NY2d 233; Miller v State of New York, supra) In this role, the State has a duty to provide basic security devices such as functioning locks and adequate illumination to ward off reasonably foreseeable criminal intrusion. (Miller v State of New York, supra; Broeker v State of New York, Ct Cl, J. Patti, Dated September 11, 2000, Claim No. 90956, MacLaw No. 2000-013-508) Yet a landlord can only be held liable for a criminal attack where it is shown by competent evidence that the landlord was on notice of recent crimes, and that the negligent conduct, such as where an intruder, not a tenant or someone allowed in by a tenant, entered the building through an unsecured entrance was a proximate cause of the injury (Burgos v Aqueduct Realty Corp., 92 NY2d 544; Weitz v State of New York, 182 Misc 2d 320; Broeker v State of New York, supra) The facts here involve residents of the same dorm, one student assaulting another student. There was no intruder entering the dorm by an unsecured entrance.
Other than the duty to keep its premises reasonably safe under all of the circumstances, a college does not have a duty to supervise its students activities outside of the classroom; (
Eiseman v State of New York, 70 NY2d 175, 189-190; Talbot v New York Institute of Technology, 225 AD2d 611, 612-613; Broeker v State of New York, supra) nor is it required to protect its students from the dangerous activities of their classmates or to monitor students who are antisocial, criminal or even violent. (Eiseman v State of New York, supra; McEnaney v State of New York, 267 AD2d 748; Rothbard v Colgate University, 235 AD2d 675; Broeker v State of New York, supra)
In light of the foregoing claimant, in his responding papers, seeks to frame this claim as one seeking damages for the State's ministerial negligence.[2]
It is undisputed that SUNY Morrisville had a written policy prohibiting the consumption and possession of alcohol on campus. Claimant contends that the resident advisor on claimant's floor, Brian Bolton, violated that compulsory policy when he failed to report the consumption of alcohol. Moreover, the undisputed facts show that Mr. Bolton actually consumed alcohol himself on the floor, and, being over twenty-one years of age, even purchased alcohol for younger students. Claimant argues that the failure to act in accordance with the campus policy is a breach of a ministerial duty, requiring no discretion, and therefore the State can be held liable for Mr. Bolton's tortious conduct.
Recognizing that the undisputed facts indicate that Mr. Bolton, as a paraprofessional of the college, violated the policy prohibiting the possession or consumption of alcohol on campus, claimant has not asserted one factor which would raise as an issue whether Mr. Bolton's conduct was proximately related to the assault on claimant.[3]
Mr. Bolton was not on campus the weekend of claimant's altercation, he was away on National Guard duty. Furthermore, Mr. Gagnon and his roommate were drunk when they returned to South Hall after being out, presumably all night.[4] (Defendant's Exhibit A, page 20, line 16-19) Claimant has not even suggested that Mr. Gagnon and his roommate consumed alcohol in South Hall or on campus on the date of the incident. As a result, the fact that Mr. Bolton allowed the consumption of alcohol on claimant's floor in South Hall, and drank as well, violating the college's policy prohibiting the consumption of alcohol on campus is not in anyway proximately related to the assault on claimant on October 26, 1997.
Accordingly, defendant's motion is GRANTED, and the claim is DISMISSED.

September 18, 2001
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in reaching a decision:

Notice of Motion...............................................................................1


Affirmation of Gordon J. Cuffy, Esquire,

Assistant Attorney General....................................................2


Exhibits A-E in Support[5]....................................................................3


Opposing Affirmation of Gerard A. Strauss, Esquire with all

exhibits attached thereto........................................................4


Filed Documents:


Verified Claim...................................................................................5


Verified Answer................................................................................6



[1] Attached to Defendant's motion is Exhibit C, a copy of the statement given by Paul Gagnon to the Department of Public Safety at SUNY Morrisville, Exhibit D, includes the reports compiled by the Department of Public Safety regarding the incident and the information charging Paul Gagnon with Assault in the 3rd degree, and Exhibit E includes the dental records for claimant. The Court has not considered these attachments because they were not presented in admissible form as required for consideration on a summary judgment motion. (Zuckerman v City of New York, 49 NY2d 557, 562)
[2]This position appears to be beyond the allegations set forth in the claim, however, defendant has not objected on this basis, so the Court will consider the claimant's argument. Claimant's assertion may have been raised in his verified bill of particulars; however, neither defendant nor claimant supplied the Court with a copy, and because it was not filed with the Clerk of the Court, the Court did not have a copy in its file.
[3]The Court does not reach the question of whether the State has a duty to supervise students to prevent them from drinking off campus based upon the college's policy prohibiting the possession or consumption of alcohol on campus. (Compare, Rothbard v Colgate University, 235 AD2d 675, supra)
[4] The Court has not given any weight to Defendant's exhibit C, the statement of Paul Gagnon, because it was not presented in admissible form. Nor has the Court relied on Defendant's counsel's assertion in his affirmation, since he has no personal knowledge of the facts.
[5]The Court notes that Defendant's application is technically defective in that a copy of the pleadings was not submitted with its motion papers as required by CPLR 3212(b), which alone is grounds for denial of the motion. However, since Claimant has not objected to the motion on that basis, and the Court has copies of the pleadings, filed with the Clerk of the Court, the Court will consider the motion on the merits. (See, In re Estate of Dietrich, 271 AD2d 894, 895; General Motors Acceptance Corp. v Albany Water Bd., 187 AD2d 894)