Febesh v. Elcejay Inn Corp., 555 N.Y.S.2d 46, 47, 157 A.D.2d 102, 104 (1st Dep't 1990).
A governmental or quasi-governmental entity
owes no duty to protect a person on its premises from a third person's assault absent facts establishing a special relationship between the entity and the person assaulted. Weiner v. Metropolitan Transportation Auth., 448 N.Y.S.2d 141, 144, 55 N.Y.2d 175, 181, 433 N.E.2d 124 (Ct. App. 1982). That rule rests on the idea that the allocation of police resources is a legislative-executive decision or governmental function for which there should be no liability. Id.
Goldwater argues that Weiner does not control here because that case dealt only with the failure to provide police protection and she alleges negligence in the design and maintenance of the Marble Hill station. Although Weiner addressed the absence of police surveillance and the failure to warn of criminal activity around a subway entrance, later cases have extended its rule to dismiss suits alleging negligent failure to erect a higher fence around a bus stop, Giamboi v. New York City Transit Auth., 479 N.Y.S.2d 929, 930, 124 Misc. 2d 810, 811 (Sup. Ct. 2nd and 11th Dists. 1984); placement of construction materials in a subway tunnel, Clinger v. New York City Transit Auth., 626 N.Y.S.2d 1008, 1009, 85 N.Y.2d 957, 959, 650 N.E.2d 855 (Ct. App. 1995); failure to lock off a closed token booth area, Farber v. New York City Transit Auth., 531 N.Y.S.2d 360, 361, 143 A.D.2d 112, 113 (2nd Dep't 1988); and failure to provide adequate lighting. Rivera v. New York City Transit Auth., 585 N.Y.S.2d 367, 368, 184 A.D.2d 417, 418 (1st Dep't 1992). As the Giamboi court stated, "This broad protection is based on the theory that if the Authority were required to utilize non-police measures to protect individuals from attacks by third parties, these measures might stretch its resources as much as providing police protection." 479 N.Y.S.2d at 930, 124 Misc. 2d at 811.
Goldwater's allegations regarding Metro-North's design and maintenance of the Marble Hill station implicate the governmental functions of providing security to passengers and "policymaking regarding the risks presented." Bonner v. City of New York, 73 N.Y.2d 930, 932, 539 N.Y.S.2d 728, 729, 536 N.E.2d 1147 (Ct. App. 1989). Thus, for Metro-North to be liable, Goldwater must establish a special relationship between her and Metro-North.
To establish a special relationship, a plaintiff must show: (1) an assumption by the governmental entity, through promises or actions, of an affirmative duty to act on the plaintiff's behalf; (2) knowledge on the part of the entity's agents that inaction could lead to harm; (3) some form of direct contact between the agents and the plaintiff; and (4) the plaintiff's reliance on the affirmative undertaking. Kircher v. City of Jamestown, 544 N.Y.S.2d 995, 998, 74 N.Y.2d 251, 257, 543 N.E.2d 443 (Ct. App. 1989). Goldwater does not dispute Metro-North's contention that she cannot prove those elements (see PTO, Agreed Facts PP 16-17), but instead argues that her employment by Metro-North supplies the special relationship.
However, as discussed in part A, Goldwater was an ordinary commuter when she entered the Marble Hill station. Metro-North owed her the same duty of protection from third parties (that is to say, none in the absence of a special relationship) that it owed to all commuters. The fact that Goldwater happened also to be a Metro-North employee does not create a duty on the part of Metro-North to give her more protection than it does the commuting public.
Goldwater's negligence claim is dismissed.
Metro-North's motion for summary judgment is granted.
The Clerk is directed to dismiss the complaint with costs and disbursements according to law.
Dated: New York, New York
November 6, 1995
LOUIS L. STANTON
U. S. D. J.