January 2014 - Parks & Recreation - 30

L AW R E V I E W

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Further, to the extent a warning
serves a purpose, it is better to leave
that decision to the City's governing and administrating bodies. Finally, providing ominous warnings
about crime at public parks, to the
extent they keep the general public
away, could unnecessarily discourage the beneficial use of an important public asset.
As a result, the appeals court concluded that the City had " no duty " to
Munoz under the circumstances of
this case. The appeals court, therefore, affirmed the order of the trial
court dismissing the lawsuit.

Ruiz alleged that the City should
be held liable for his injuries because
it failed to properly manage, maintain and supervise the playground.
The defendant City claimed it was
" exercising its police powers in
maintaining the park and cannot be
liable absent a special relationship
with plaintiff, " which the City alleged did not exist.

Security Immunity
In the case of Ruiz v. City of New
York, 27 Misc. 3d 443; 894 N.Y.S.2d
862; 2010 N.Y. Misc. LEXIS 301
(2/22/2010), plaintiff Ruiz was assaulted at a New York City playground. As described by the court,
on or about August 25, 2008, the
plaintiff was physically assaulted
by other children at the Cherry Hill
Playground who were wearing boxing gloves and had been fighting with
each other at the playground.

security against physical

Parks & Recreation

As characterized by the
court, the " duty at issue
was the provision of
attacks by third parties. "
According to the court, absent a
special relationship, the City would
be immune from liability if it was acting in its governmental capacity. On
the other hand, if the City was acting in its proprietary capacity, it was
" subject to ordinary tort liability. "
That being said, the court acknowledged that there is " no clear demar-

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cation between these two types of
functions; rather, they are on a continuum or spectrum. "
As defined by the court, a " quintessential 'governmental' function is one
undertaken for the protection and
safety of the public pursuant to the
general police powers, " such as fire
and police protection. In contrast, the
court noted that " quintessential proprietary functions are those in which
governmental activities essentially
substitute for, or supplement, traditionally private enterprises. "
As a result, to determine " where
in the continuum of activity between proprietary and governmental
responsibilities the challenged public action falls, " the court would " examine the specific act or omission
out of which the injury is claimed
to have arisen and the capacity in
which that act or failure to act occurred. " In so doing, the court found
" the provision of security against
physical attacks by third parties " is
" a governmental function involving
policymaking regarding the nature
of the risks presented " and " no liability arises from the performance
of such a function absent a special
duty of protection. " In the opinion
of the court, " to hold otherwise
would be to subject municipalities
to open-ended liability and might, in
addition to posing a crushing financial burden, discourage municipalities from undertaking activities to
promote the general welfare by making the prime concern the avoidance
of tort liability rather than the promotion of the public welfare. "
As characterized by the court, the
" duty at issue was the provision of
security against physical attacks by
third parties. " Under the circumstances of this particular case, the
court found " the City was acting
January 2014 - Parks & Recreation

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