Under the governmental immunity defense, the City “may not be held liable to a person injured by the breach of a duty owed to the general public, such as a duty to provide police protection, fire protection or ambulance services.” However, the City “is not immune from claims arising out of the performance of a proprietary function.”
In Granata v. City of White Plains, Concetta Russo Carriero (“Carriero”) was attacked and killed by Phillip Grant, a homeless sex offender, on the seventh floor of a parking garage owned by the City of White Plains. (Carriero rented a monthly parking space from the City, and was required to park on the seventh floor of the garage in an area designated for monthly customers). Carriero’s family filed a negligence/wrongful death action against the City.
The City moved for summary judgment on the grounds it was entitled to governmental immunity since it was acting in a governmental capacity, not a proprietary capacity, at the time of Carriero’s murder. The lower Court denied the City’s motion, and on appeal, the appellate division affirmed the lower Court’s denial finding “the gravamen of the complaint is not that the City failed to properly allocate government resources and services to the public at large…but that it failed in its capacity as a commercial owner of a public parking garage to meet the basic proprietary obligation of providing minimal security for its garage property via lighting, alarms, cameras and warning signs.” Further, “these measures are within the normal range of security measures necessary to satisfy the duty of care owned by any landlord or commercial property owners to its tenants or invitees.”
After a three-week trial, jurors found the City entirely liable and awarded the family $1.98 million. The City moved to set aside this verdict.
On November 26, 2015, the Court denied the City’s motion finding “it was the City’s negligent security that caused Grant to select [the garage] and commit his crime undetected.”
The takeaway from this case is two-fold. First, the City cannot escape liability when it is acting in a proprietary function. Second, a defendant commercial property owner should employ adequate security measures in order to protect its customers, let alone shield itself from liability.
Thanks to Caroline Freilich for her contribution to this post.