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Ginsburg v. City of Ithaca

United States District Court, N.D. New York

March 24, 2014

HOWARD I. GINSBURG, as Administrator of the Estate of Bradley Marc Ginsburg, Plaintiff,
v.
CITY OF ITHACA and CORNELL UNIVERSITY, Defendants

For Plaintiff: KENNETH F. MCCALLION, ESQ., OF COUNSEL, MCCALLION & ASSOCIATES, LLP, New York, NY.

For Plaintiff: HOWARD I. GINSBURG, ESQ., OF COUNSEL, OFFICE OF HOWARD I. GINSBURG, Boca Raton, FL.

For City of Ithaca, Defendant: DAVID TWICHELL, ESQ., OF COUNSEL, LAW OFFICES OF THERESA G. PULEO, Syracuse, NY.

For Cornell University, Defendant: NELSON E. ROTH, ESQ., VALERIE L. DORN, ESQ., WENDY E. TARLOW, ESQ., OF COUNSEL, OFFICE OF UNIVERSITY COUNSEL, Ithaca, NY.

OPINION

Page 244

MEMORANDUM--DECISION and ORDER

DAVID N. HURD, United States District Judge.

I. INTRODUCTION

On November 21, 2011, plaintiff Howard I. Ginsburg (" plaintiff" or " Ginsburg" ) filed this action as the administrator of the estate of his deceased son, Bradley Marc Ginsburg (" Bradley" ). On December 8, 2011, plaintiff filed an amended complaint in which he asserts fourteen causes of action against the City of Ithaca (" Ithaca" ), Cornell University (" Cornell" ), and several individuals.[1] On March 15, 2012, a Memorandum--Decision and Order (" MDO" ) was filed granting in part and denying in part defendants' motions for judgment on the pleadings. Ginsburg v. City of Ithaca, 839 F.Supp.2d 537 (N.D.N.Y. 2012). This MDO dismissed all claims against the individual defendants as well as the claim for punitive damages.[2] Therefore, the only remaining defendants are Ithaca and Cornell.

In the amended complaint, Ginsburg alleges Cornell's negligence caused Bradley's

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wrongful death (First, Seventh, Ninth, Eleventh, and Thirteenth Causes of Action) as well as personal injuries and conscious pain and suffering (Second, Eighth, and Tenth Causes of Action). Similarly, he alleges Ithaca's negligence caused Bradley's wrongful death (Third and Fifth Causes of Action) and personal injuries/conscious pain and suffering (Fourth and Sixth Causes of Action).

The parties have completed extensive discovery, and Ithaca and Cornell have each filed a motion for summary judgment. The motions have been fully briefed. Oral argument was heard on March 14, 2014, in Utica, New York. Decision was reserved.

II. FACTUAL BACKGROUND

Unless otherwise noted, the following facts are undisputed. On February 16 or 17, 2010, Bradley--an eighteen-year-old Cornell freshman--jumped to his death from the Thurston Avenue Bridge into the Fall Creek Gorge near the Cornell campus in Ithaca, New York.[3] Bradley did not have any history of mental health issues prior to his matriculation at Cornell. He did not seek any counseling or mental health assistance from any agency affiliated with Cornell or Ithaca. He spent the 2009 Thanksgiving and Christmas holidays with his parents in Florida and spoke with them frequently on the phone after he returned to Cornell. Both parents, as well as Bradley's roommate, were unaware of any mental health concerns prior to his death. Bradley was earning straight-As and was pledging a fraternity when he died.

There are seven bridges over two large gorges on or near the Cornell campus in Ithaca. Four of the bridges are owned by Cornell, three are owned by Ithaca. Ithaca owns the Thurston Avenue Bridge, but Cornell owns the property on either side of it. This particular bridge is highly traveled by Cornell students as it connects the north campus, where freshmen live, to the main academic area of campus. Bradley crossed this bridge daily.

In the 1990s Ithaca initiated routine repair work on the Thurston Avenue Bridge. The scope of this project expanded into a major reconstruction. Ithaca hired LaBella Associates (" LaBella" ) to engineer and oversee this project. During the design phase, Ithaca and LaBella took into account numerous factors including industry standards, suicide prevention and deterrence measures, preservation of views from the bridge, aesthetic appearance, requirements imposed by the New York Department of Transportation and the Office of Historic Preservation, and input from Cornell and other area residents. Cornell retained Sasaki Associates (" Sasaki" ) to study pedestrian, vehicular, and bicycle traffic as well as other campus safety matters in relation to the bridge's rehabilitation and in preparation for an expansion of north campus. Sasaki issued a report in May 2002.

The bridge reconstruction was completed between March 2006 and November 2007. Ithaca, the State of New York, and the federal government paid for the project. The reconstructed bridge includes wider sidewalks, new railings, and bicycle lanes. The railings consist of vertical bars that curve in at the top and measure 1.4 meters (approximately 4.5 feet) high, which is higher than applicable regulations at the time of construction. Plaintiff notes, however, that the effective height of the railings is actually lower than it was before the redesign because there is an eighteen-inch cement footing at the base

Page 246

on which a person can stand.[4] The parties dispute how much influence Cornell had on the design of the reconstructed bridge as well as how much control it exercises over the bridge's operation and maintenance.

According to Cornell, twenty-seven people--including Bradley--committed suicide on or near campus between 1990 and 2010.[5] Approximately one-half of these suicides involved Cornell students. In the five years preceding Bradley's death only one student committed suicide near a bridge spanning the Fall Creek Gorge. This took place in August 2006 and did not involve the Thurston Avenue Bridge. Prior to Bradley's suicide, the last known incident involving a Cornell student jumping from the Thurston Avenue Bridge occurred on November 28, 1996.[6] During the fall 2009 semester--the semester immediately preceding Bradley's death--three Cornell students committed suicide. Two of those suicides were on or near campus, the third occurred out-of-state. None of those students jumped from a bridge.

Within a month after Bradley's suicide, two more Cornell students jumped to their deaths from area bridges. Specifically, a male student's body was recovered near the Thurston Avenue Bridge on March 11[7] and from under a different bridge on March 12. This brought the total number of student suicides for the 2009-2010 school year to six. On March 26, 2010, at Cornell's request, the Mayor of Ithaca declared a public health emergency and permitted Cornell to install temporary chain-link fences on the Thurston Avenue Bridge to prevent further suicide attempts. This fencing, which was also installed on the other six gorge bridges, was significantly higher than the railings.

Thereafter, Cornell retained an architectural and design firm and eventually replaced the chain-link fencing with permanent netting under all seven gorge bridges. Cornell paid for the installation of the fences and nets, and continues to maintain the nets. There is no evidence in the record of any further suicide attempts from ...


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