Rupert v. Town of West Seneca

The question presented involves the liability of a town for injuries sustained by a pedestrian in falling upon a sidewalk therein. The sidewalk was constructed by the defendant The Union Free School District No. 3 of the Town of West Seneca, Erie County, New York (hereinafter referred to as School District) and later became in such a state that it was defective. As a result there occurred the accident with which we are here concerned. Upon trial before a court and jury the husband and wife plaintiffs had verdicts against the defendant Town of West Seneca, Erie County, New York (hereinafter referred to as Town) but the jury found in favor of the defendant School District. Town appealed but no appeal whs taken by the plaintiffs from the judgment in favor of School District. The Appellate Division reversed the plaintiffs’ judgment against Town and dismissed the complaint. Under those circumstances the only question presented is as to the liability of Town.

The accident occurred in August, 1938, on Bellwood Avenue in Town. Bellwood Avenue is a public highway fifty feet wide. Within those fifty feét there was constructed a sidewalk along the school district property. The vehicle-way, which was asphalted, was about twenty feet wide. Between it and the sidewalk was what might be termed a shoulder of dirt or gravel. Then came the sidewalk and then another strip of dirt or gravel between the sidewalk and the fence enclosing the school district premises. The sidewalk in question was constructed in 1913 pursuant to an agreement by which the School Board of School District No. 3 of the Town of West Seneca engaged one Fisher to do the work. The same sidewalk was there at the time of the accident. It had been repaired once in 1927 when an addition to the school was built. In transporting material the contractor had wrecked a portion of the sidewalk and had then repaired it without cost to the School District.

We shall assume for the purpose of our discussion that the entire fifty feet within the lines of Bellwood Avenue, including the land on which the sidewalk was constructed by School District, was a town highway and while without a sidewalk was under the control, superintendence and regulation of the town authorities and that the town was responsible .for a defect therein. Logically one would say that the same situation continued as to a sidewalk constructed within those fifty feet even though constructed without the consent of the town. Historically and by legislative action such is not the case in a town.

In Augustine v. Town of Brant, 249 N. Y. 198 , 204-5, we said: 11 Towns and counties have been held to be merely divisions of the State organized for the convenient exercise of portions of the political power of the State (Lorillard v. Town of Monroe, 11 N. Y. 392 ), and as such exempt from liability for the negligent exercise of -such power. A distinction has been drawn for this reason between the liability of counties and towns and the liability of cities for highway negligence. * * * The distinction rests on the difference between the exercise by the town of political powers and the exercise by the city of powers assumed by or imposed upon it which are ‘ more immediately performed in the interest of the corporation itself.’ (Missano v. Mayor, etc., 160 N. Y. 123 , 128.) ”

The Town of West Seneca was formed in the year 1852 (L. 1852, ohs. 98 and 412). Like all other towns it derived its existence and organization as well as its duties, obligations and power from the Legislature. (Holroyd v. Town of Indian Lake, 180 N. Y. 318 , 322.)

The first statute imposing highway liability upon towns was enacted by Laws of 1881, chapter 700. (See Highway Law, § 215.) The Legislature therein referred to “ defective highways or bridges ’ ’ and11 defective roads or bridges. ’ ’ Sidewalks were not mentioned. There followed a series of acts to which we may refer as town-liability statutes, to wit (L. 1890, ch. 568, § 16; L. 1908, ch. 330, § 74; L. 1909, ch. 30, § 74; L. 1913, ch. 389; L. 1918, ch. 161, § 2). None of those statutes mentioned sidewalks.

“ As we have seen, the town superintendent under the statute is required to make at least semi-annual inspection of town highways. If the sidewalk in question was erected upon a town highway without the consent of the superintendent or the town board, it must necessarily follow that in the course of time they were bound to have notice of its existence. It thereupon became their duty either to cause it to be removed as an obstruction or to keep it in a safe condition for travel. So far as this principle of law is concerned there can and should be no distinction whether the municipal corporation be a town or whether it be a city or a village.

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‘ ‘ It follows, therefore, in the instant case, that if it appears upon the trial that the sidewalk was constructed by the abutting owner without the consent of the town or its superintendent, the town may be absolved from liability if the injury caused by the sidewalk occurred before the town or its superintendent could be held to have had notice of its existence. At the same time it is equally true that the town may be held liable if the accident occurred after it or its superintendent knew of the existence of the sidewalk and of its condition, or should by the lapse of time have known of them, and nevertheless failed to take any action to cause the walk to be removed or repaired.” (pp. 332-333.)

At the following session of the Legislature, which convened less than three months thereafter, there was enacted Laws of 1935, chapter 772, which amended said section 74 of chapter 30 of the Laws of 1909 (the Highway Law) so as to provide so far as here applicable, the italicized portion being new: “ § 74. Liability of Town fob Defective Highways, Bridges and Sidewalks. Every town shall be liable for all damages to persons or property sustained by reason of any defect in its highways or bridges, existing because of the neglect of any town superintendent of such town but it shall not be liable for damages to persons or property sustained by reason of any defect in its sidewalks unless such sidewalks are 'constructed or maintained by the town or the superintendent of highways of the town, pursuant to law * * * ”. That was reaffirmed and renumbered as section 215 of the Highway Law by Laws of 1936, chapter 63, and amended by Laws of 1936, chapter 266. The change by the latter statute was from the words “ pursuant to law ” to the words “ pursuant to statute ”. By the 1935 statute the holding in the Gaynor case was declared not to be the law in this State.

It is plaintiffs’ contention that there was no statute which relieved Town from liability when the sidewalk was constructed in 1913 and that the statute of 1935 could not relieve it from such liability. We think that plaintiffs have misconstrued the liability imposed upon towns. Any such liability for defects in highways is a statutory one. (People ex rel. Van Keuren v. Town Auditors, 74 N. Y. 310 ; People ex rel. Loomis v. Board Town Auditors, 75 N. Y. 316 ; Monk v. Town of New Utrecht, 104 N. Y. 552 ; Flynn et al. v. Hurd, 118 N. Y. 19 ; Bowman v. Town of Chenango, 227 N. Y. 459 .) In People ex rel. Van Keuren v. Town Auditors (supra), we said (p. 315): “ Under our system, no corporate duty is imposed upon towns in respect to the care, superintendence, or regula

Neither at common law nor by statute were towns under any legal liability to respond in damages until after the enactment of chapter 700 of the Laws of 1881. (Monk v. Town of New Utrecht, 104 N. Y. 552 , 557, supra.) It was there provided: “ The several towns in this state shall be liable to any person suffering the same, for all damages to person or property by reason of defective highways or bridges in such town, in cases in which the commissioner or commissioners of highways of said towns are now by law liable therefor, instead of such commissioner or commissioners of highways. ’ ’

The mention of sidewalks in Laws of 1935, chapter 772, was not by any means an initial legislative reference. On the contrary, the Legislature had many times distinguished between highways and sidewalks in towns. When it intended to refer to a highway, it used that word. When it intended to refer to a board walk or its renewal in concrete or other material (Highway Law [L. 1909, ch. 30] § 47, subd. 2, § 62, now Highway Law [L. 1936, ch. 63] § 140, subd. 2, § 151) it used the word board walk. When it intended to define a board walk as a sidewalk (Highway Law [L. 1909, ch. 30] § 62, now Highway Law [L. 1936, ch. 63] § 151), it used both those words. The word highway was not used as including a sidewalk of whatever material constructed. Thus, section 61 of the former Highway Law (now Highway Law, § 150) provided that a town superintendent might authorize, under circumstances therein detailed, the owners of property adjoining the town highways “ at their own expense, to * * * locate and construct sidewalks along the highways, in conformity with the topography thereof

We need not quote here Highway Law, section 215, in full, as so repealed or added. Suffice it to say that it is now divided into numbered parts and that there is disclosed a clear Legislative distinction between •the measure and method of proof required to establish liability for injuries sustained by reason of defects in highways and those sustained by reason of defects in sidewalks of towns. In the first of the numbered subdivisions injuries to person or property sustained by reason of a defect in a highway are considered. Subdivision two deals with injuries sustained by reason of a defect in a sidewalk. Subdivision three provides for notice of claim and commencement of action in either case. We note, however, that as to highways the claimant may have the benefit of constructive notice of defect by the town. As to sidewalks, a claimant may not avail himself of constructive notice nor may he avail himself of actual notice of defect served on the specified officer prior to injuries sustained, except as to sidewalks constructed or maintained by the town or town superintendent of highways pursuant to statute.

Despite the 1935 amendment to Highway Law, section 74 (supra), the trial court denied Town’s motions to dismiss the complaint at the end of the plaintiffs’ case and at the end of the entire case, after reserving decision upon them until after the rendition of the jury’s verdicts and followed the decision in the Gaynor case. The words of the charge to the jury were frequently the words of the Gaynor opinion. The trial court made clear its position by charging without exception by anyone that “ the town of West Seneca did not construct or maintain this sidewalk ”. It may or may not be that the logic and reasoning in the Gaynor case are more consonant with justice than the rule adopted- by the Legislature. The plaintiffs, in their brief, phrase it well in pointing out that the statutory rule means that “ any trap or dangerous condition could remain indefinitely, and in the event of an accident, the town could look up the record and if the walk had been constructed by a

The rule seems to be to the contrary insofar as cities and villages are concerned.* It has been stated that “ A manifest difference in this respect, arising out of charter provisions, and the obvious requirements of the situation, exists between village and municipal corporations, and country towns, in respect to such obligations.” (Monk v. Town of New Utrecht, 104 N. Y. 552 , 557, supra.) Thus in Saulsbury v. Village of Ithaca ( 94 N. Y. 27 , 30) it was said: It is true that whether a municipal corporation shall build, or permit to be built, a sidewalk on any of its streets, is matter of discretion not to be regulated by the courts, yet when a sidewalk is built with or without its permission, it becomes responsible for its condition and bound so long as it exists to keep it in order.”

Pursuant to statute (Town Law, § 2), towns are now municipal corporations. However, prior to the enactment of section 2 of chapter 569 of the Laws of 1890, towns were not called municipal corporations. The above cases Monk v. Town of New Utrecht (supra), and Saulsbury v. Village of Ithaca (supra) use the words “ municipal corporation ” as referring to a city or a village. The rule placing greater liability upon cities and villages than upon towns is also found in the following cases: Bullock v. Mayor, etc., of City of New York ( 99 N. Y. 654 ); Nelson v. Village of Canisteo ( 100 N. Y. 89 -92); City of Rochester v. Campbell et al. ( 123 N. Y. 405 ); Stern v. International Ry. Co. ( 220 N. Y. 284 ).

The judgment should be affirmed, with costs.

(dissenting). On August 16,1938, Lorraine Rupert, who resided with her husband at 90 Bellwood Avenue in the Town of West Seneca, Erie County, was injured by a fall due to a defective sidewalk near the northwést comer of Bellwood Avenue and Seneca Street. She brought an action for her injuries and her husband sued to recover expenses in caring for his wife and for loss of services. After a jury trial and a verdict for plaintiffs, judgment was entered against the Town of West' Seneca. On appeal, the Appellate Division stated in its order that the findings of fact had been examined and affirmed (Civ. Prac. Act., § 602) but reversed, by a divided court, the judgment on the law and dismissed the complaint “ on the ground that section 215 of the Highway Law relieves the defendant Town of West Seneca from liability.”

Ho motion was made by the defendant for a direction of verdict in its favor. There was ample evidence, as the Appellate Division unanimously affirmed, from which the jury were authorized to find that Lorraine Rupert was free from negligence contributing to her injuries and that the sole proximate cause of her accident was the defective condition of a sidewalk-furnished for the use of pedestrians using the public highway and upon which she fell. In that view of the case, the verdict must be reinstated unless, under the facts and circumstances here existing, section 215 of the Highway Law bars recovery.

The Town of West Seneca is and has been since its organization a municipal corporation. Bellwood Avenue was a public highway fifty feet wide laid out and maintained by the Town of West Seneca prior to 1911. It extended from Graham Street on the north end to and across Seneca Street at the south. Prior to that year it was and continuously since has been located in a residential section, dwellings were erected on both sides of the- street and it was generally used for both pedestrian and vehicular traffic. Sidewalks were constructed on both sides. The center of the street had a twenty-foot pavement for the use of vehicles which the town constructed and maintained. '

During 1912 and 1913, Union School District Ho. 3 constructed the first section of a public school building on a lot which it owned on the northwest corner of Bellwood Avenue and Seneca Street, made an addition to the building in 1922, and a further addition in 1928. - The lot on which the school was located

At the time of the construction of the sidewalk, the town superintendent of highways was charged with the care and superintendence of town highways and with the duty to keep them in repair and free from obstructions and with inspection thereof during the months of April and October in each year- and was authorized to employ persons with means to enable him to perform the duties thus imposed (L. 1909, ch. 30, § 47). Section 74 of the same act made the town liable for all damages to persons or property sustained by reason of any defect in its highways existing because of the neglect of the town superintendent in the performance of the duties imposed upon him. Similar powers and duties had long prior to that time been imposed upon the town officer in charge of the highways of the town for whose negligence in the performance of such duties the Legislature imposed liability on the town (Snowden v. Town of Somerset, 171 N. Y. 99 ) and it could not be relieved from such liability merely because some duty of repair might also be imposed upon abutting owners (Ferguson v. Town of Lewisboro, 213 N. Y. 141 , 146). It is presumed that the town superintendent performed the duties imposed upon him by the Legislature and by the required inspection, if not otherwise, knew of the construction of the sidewalk by the school board and that

By chapter 266 of the Laws of 1936, the Legislature added to section 215 of the Highway Law the words, “ but it shall not be liable for damages to persons or property sustained by reason of any defect in its sidewalks unless such sidewalks are constructed or maintained by the town or the superintendent of highways of the town pursuant to statute, * * That addition to the statute furnishes no relief to defendant since the sidewalk on which the accident happened, on the record here, was presumably constructed with the consent of the town superintendent and necessarily, Under legislative mandate, was maintained under his supervision, authority and control. Presumably, through long continued, public and notorious use and enjoyment of the sidewalk, the Town recognized it as a completed part of the public highway and accordingly must be deemed to have maintained it within the meaning of section 215 of the Highway Law. It was the duty of the town superintendent, for whose neglect in the performance thereof the town was still liable, to inspect the highway and to maintain it in a reasonably safe condition for the use of travelers, who were

In the circumstances in the record of this case, for injuries sustained by a traveler through no fault of his own, the town is liable if the proximate cause of the injuries is the neglect of the town superintendent in failing to keep the highway in suitable condition and repair or in failing to require the removal or repair of the defective condition after adequate notice. (Highway Law, § 215 (formerly § 74); Gaynor v. Town of Hempstead, 153 Misc. 321 ; Robinson v. Chamerlain, 34 N. Y. 389 ; Sewell v. City of Cohoes, 75 N. Y. 45 ; Saulsbury v. Village of Ithaca, 94 N. Y. 27 ; Pomfrey v. Village of Saratoga Springs, 104 N. Y. 459 ; Ivory v. Town of Deerpark, 116 N. Y. 476 ; Embler v. Town of Wallkill, 132 N. Y. 222 ; Bryant v. Town of Randolph, 133 N. Y. 70 ; Flansburg v. Town of Elbridge, 205 N. Y. 423 , 428).

The judgment appealed from should be reversed, with costs in this court and in the Appellate Division, and the judgment of the trial court reinstated.

Lehman, Oh. J., Lewis, Desmond and Thacheb, JJ., concur with Conway, J.; Rippey, J., dissents in opinion in which Loughran, J., concurs.

Judgment affirmed.