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February 13, 2004.


The opinion of the court was delivered by: GERARD E. LYNCH, District Judge


On January 29, 2002, between 6:00 and 6:30 p.m., plaintiff Irving Rill, a Florida resident, tripped and fell on East 49th Street in Manhattan, sustaining personal injuries. Rill sued the City of New York and the New York City Police Department (collectively, "the City"),*fn1 alleging that the City caused his fall by negligently placing a concrete barrier at that location without taking appropriate precautions. The City now moves for summary judgment, arguing, first, that because its decision to place the barrier where Rill fell qualifies as a governmental function, it enjoys immunity from liability; second, that as a matter of law, the barrier must be deemed an "open and obvious" condition, vitiating the City's general duty of care as owner of the sidewalk and streets; Page 2 and finally, that Rill cannot recover because his failure to pay attention to where he was walking, not the City's negligence, proximately caused his injuries. The first of these arguments misstates the law, while the latter two implicate genuine issues of material fact. The motion will therefore be denied.


  On January 29, 2002, after dark, Rill, an octogenarian resident of Florida, tripped and fell on a piece of metal protruding from a cement barrier situated diagonally on the south side of East 49th Street, at the corner of Lexington Avenue, in Manhattan. (D. Rule 56.1 Stmt. ¶ 1; P. Br. 2; Rill Tr., 17, 31.) The City had recently placed several such barriers in the vicinity of the Waldorf Astoria Hotel, the site of the 2002 World Economic Forum, as a security measure to prevent a potential vehicular terrorist-bomb attack. (D. Rule 56.1 Stmt. ¶¶ 9-11.) The protrusion on which Rill tripped was apparently an "I-Beam," a rust-colored piece of metal used to connect the barriers. (Martini Tr. 22; Burns Tr. 40-41.) Rill contends that "[t]he City negligently created a dangerous hazard by placing a cement `Jersey Barrier' in a location where pedestrians are known to walk, without removing the metal I-Beam connector" or placing on the barrier "any reflective devices to alert or warn pedestrians of [its] presence." (P. Opp. to City Mot. 5 ¶ 7.)

  In opposition to the City's motion for summary judgment, Rill offers, among other evidence, the testimony of several persons responsible for the placement of the cement barriers at or near the location of the 2002 World Economic Forum. Michael Martini, an employee of the City's Department of Transportation who supervised the placement of the barriers (Martini Tr. 6-7, 9), recalled that I-Beams were protruding from some of them. (Id. 31-32.) On January 29, Page 3 2002, the date of Rill's accident, Martini spoke with Sergeant Robert Matthiessan,*fn2 the police officer responsible for securing the area around the Waldorf Astoria in connection with the Forum, about removing the I-Beams as a safety precaution. (Id. 34.) Martini testified that Matthiessan decided where to place the barriers and inspected them to ensure that they had been situated properly. (Id. 30.) According to Matthiessan, barriers placed on City streets and sidewalks are ordinarily inspected to ensure that they pose no pedestrian hazards. (Matthiessan Tr. 56-57.) Had he seen an I-Beam protruding from one of the barriers at a location near the World Economic Forum, he testified, he would have ordered it removed. (Id. 40-41.) But Matthiessan disclaimed any knowledge or memory of whether he, or anyone else, in fact inspected the barriers. (Id. 37-39.) In the opinion of William Marietta, an expert retained by Rill, failure to remove I-Beams from freestanding concrete barriers represents "a departure from good and accepted safe practice and is hazardous to pedestrians." (Marletta Aff. ¶ 5.) Marietta also testified that such barriers should be marked with reflective tape, lights or paint stripes as a means to alert pedestrians to their presence. (Id. ¶ 6.)


 I. Standard for Summary Judgment

  Summary judgment must be granted where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is "material" if it "might affect the outcome of the suit under the governing law"; an issue of fact is genuine where "the evidence is such that a reasonable jury could return a verdict for the Page 4 nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). On a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party, and the Court must resolve all ambiguities and draw all reasonable inferences in its favor. Id. at 255; Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995).

  To defeat summary judgment, however, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "[C]onclusory allegations or unsubstantiated assertions" will not suffice. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). Rather, the nonmoving party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Matsushita, 475 U.S. at 587 ("Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'") (quoting First Nat'l Bank v. Cities Service Co., 391 U.S. 253, 289 (1968)).

 II. The City's Motion

  Under New York law, which binds the Court in a diversity action, Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 427 (1996), a plaintiff claiming negligence "must show that the defendant owed the plaintiff a cognizable duty of care, that the defendant breached that duty, and that the plaintiff suffered damages as a proximate result of that breach." King v. Crossland Sav. Bank, 111 F.3d 251, 259 (2d Cir. 1997). The City's arguments correspond to these elements of tort liability. It argues, first, that absent a special relationship, which Rill does not allege, it owed no duty of care to Rill in connection with its placement of the barrier that allegedly caused him to fall because that act qualifies as a governmental function, and "[a]ctions taken in furtherance of governmental functions are not subject to tort liability" (D. Br. 4); second, that even if it did owe Page 5 Rill a general duty of care as owner of the street and sidewalk, it did not breach that duty because the "open and obvious" nature of the hazard allegedly posed by the barrier made it unnecessary to warn pedestrians of any danger (id. 4-7); and third, that even if it did owe and breach a duty to Rill, Rill's own negligence in failing to pay adequate attention to where he was walking, not that breach, proximately caused his injuries. (Id. 7.) The Court will address each argument in turn.

  A. Municipal Immunity

  In general, for "purely governmental functions undertaken for the protection and safety of the public pursuant to the general police powers," Sebastian v. State, 93 N.Y.2d 790, 793 (1999) (internal quotation marks omitted), the State enjoys immunity from negligence claims "absent a special relationship between the injured party and the State." Id. Rill does not claim any special relationship to the City (D. Br. 3 n.1), and the City represents that it placed the concrete barrier that allegedly caused Rill's injuries in order to protect the public from potential terrorist attacks during the World Economic Forum. (Id. 4.) Therefore, the City argues, it enjoys immunity from liability for injuries caused by its alleged negligence in the placement of that barrier.

  This argument misconceives both the scope of the governmental-immunity doctrine and Rill's theory of negligence. The doctrine shields the State (or, as here, the City) from liability for decisions about how to allocate the limited resources available to it for carrying out functions that benefit the general public. See, e.g., Balsam v. Delma Eng'g Corp., 90 N.Y.2d 966, 968 (1997) (traffic regulation); Cuffy v. City of New York, 69 N.Y.2d 255, 260 (1987) (police protection). Decisions about resource allocation, the law recognizes, generally should be left to the discretion of legislators and other policy-makers, who act in the general public's interest, rather than to litigants, who act in their own, or to the judiciary. See id.; De Long v. County of Erie, 60 N.Y.2d 296, Page 6 305 ("[T]he ...

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