Motion to Dismiss in Marybeth Donaldson, Marybeth Donaldson Administrator of the Estate of Andrew Donaldson, Deceased, Marybeth Donaldson as Parent and Natural Guardian of A. D. and C. D. v. The Port Authority Of New York And New Jersey| Trellis.Law

On April 19, 2018 a Motion-Secondary was filed involving a dispute between Marybeth Donaldson, Marybeth Donaldson Administrator Of The Estate Of Andrew Donaldson, Deceased, Marybeth Donaldson As Parent And Natural Guardian Of A. D. And C. D., and The Port Authority Of New York And New Jersey, for Torts - Other Negligence (Premises Liability) in the District Court of New York County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
- --------â€”â€”
â€”â€”
â€”
--------------------------------------------------------------------------x
MARYBETH DONALDSON, Individually, as Administrator Index No. 153624/2018
of the ESTATE OF ANDREW DONALDSON, Deceased, and
as Parent and Natural Guardian of A.D. and C.D.,

Plaintiff,

THE PORT AUTHORITY OF NEW YORK AND NEW
JERSEY,

Defendant.
--------------------------------------------------------------------------X

THE PORT AUTHORITY'S MEMORANDUM OF LAW IN
SUPPORT OF THE MOTION TO DISMISS THE COMPLAINT

THE PORT AUTHORITY LAW DEPARTMENT

Attorney for Defendant

By: Cheryl N. Alterman, Esq.
4 World Trade Center
150 Greenwich Street, 24th Floor
New York, New York 10007

(212) 435-3431

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TABLEOFCONTENTS

PRELIMINARY STATEMENT ....................................................................................................
1

STATEMENT OF RELEVANT FACTS.......................................................................................
1

ARGUMENT..................................................................................................................................
3
..................................................................................................

POINT I .................................................................................................................................
4

Plaintiff's Complaint fails to state a viable cause of action for wrongful death 4
...................

A. New York State Law Does Not Allow the Imposition of Liability Where There is

No Duty Owed and Where No Special Relationship Exists Between a State Actor

and an Injured Person.................................................................................................
7

POINT 10
II..............................................................................................................................
..........

THE PORT AUTHORITY'S OPERATION OF THE GEORGE WASHINGTON
BRIDGE IS AN ESSENTIAL GOVERNMENTAL FUNCTION AND IT IS

THEREFORE IMMUNE FROM THIS 10
SUIT.....................................................................
..........

CONCLUSION. ..........
13

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TABLE OF AUTHORITIES

Page(s)

Cases

Applewhite v. Accuhealth, Inc.,
21 N.Y.3d 420, 426 (2013............... ............................................................................12
12

Cygan v. City of New York,
165 A.D.2d 58 (1991..................... 5
.......................................................................4,

Di Ponzio v. Riordan,
89 N.Y.2d 578 (1997)................................................................................................................4
.

EBC I,Inc. v. Goldman, Sachs & Co.,
5 N.Y.3d 11, 27 (2005). .........................................................................................................3

Estate of Imrie v. Golden Gate Bridge, Highway and Transp. Dist.,
282 F. Supp. 2d 1145 (N.D. Cal. 2003......... ...............................................................9
9

Ginsburg v. City of Ithaca,
839 F.Supp.2d 537 (N.D.N.Y. 2012).........................................................................................5

Gordon v. City of New York,
70 N.Y.2d 839 (1987)................................................................................................................4
.......
...

Huntley v. State of New York,
62 N.Y.2d 134 (1984)................................................................................................................4

Leon v. Martinez, 84 N.Y.2d 83 (1994............... ...............................................................3
3

Lieberman v. Port Authority of New York and New Jersey,
132 N.J. 76 (1993) 10, 12
.............................................................................................................10,

Mastroianni v. Cty. of Suffolk,
91 N.Y.2d 198, 203 (1997.............................. ........................................................8

Milligan v. Golden Gate Bridge Highway and Transportation Dist.,

120 Cal. App. 4th 1 (2004) ................................. 6
..................................................5,

Morse v. Buffalo Tank Corp.,
280 N.Y. 110, 115 (1939)........................... ..............................................................7
7

Nelson v. Massachusetts Port Auth.,
55 Mass. App. Ct. 433 (2002)....................................................................................................6

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Port of New York Auth. v. Hackensack Water Co.,
73 N.J. Super. 332, 337 (1962) ..............................................................................11
11

Port of New York Auth. v. J E. Linde Paper Co.,
205 Misc. 110 (N.Y. Mun. Ct. 1953).......................................................................................12

Pulka v. Edelman,
40 N.Y.2d 781 (1976)................................................................................................................3
.

Riback v. Margulis,
43 A.D.3d 1023 (2007) ...........................................................................................................3
3

Valdez v. City of New York,
18 N.Y.3d 69 (2011) 12
......................................................................................7,
8,

Velez v. City of New York,
730 F.3d 128, 135 (2d Cir. 2013) ...................................................................................8

Walsh v. Fitchburg Railroad Co.,
145 N.Y. 301, 308 (1895) ........................................................................................7

In re World Trade Ctr. Bombing Litig.,
17 N.Y.3d 428 . 12
(2011)....................................................................................................7,
.7,10,

Statutes

Federal Bridge Act of ....... 10
1906........................................................................................................1,

N.J.S.A. 32:1-90.............................................................................................................................11
.11

N.J.S.A. 32:1-157, et seq. (1963)...................................................................................................10
...........

N.J. Super. Law Div. 1962.............................................................................................................11
.11

N.Y. Unconsol. Laws § 6501, et seq. (McKinney 1979)...............................................................10

N.Y. Unconsol. Laws § 6515, et seq. (McKinney 1979)...............................................................11
...........

111

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PRELIMINARY STATEMENT

Plaintiff, MaryBeth Donaldson, wife of the decedent Andrew Donaldson, brings this action

(" Authority"
against The Port Authority of New York and New Jersey ("Port Authority") seeking to hold it

liable for the decedent's decision to commit suicide by jumping offthe George Washington Bridge.

Suicide is a growing problem in the United States. However, it isnot a means to hold an entity

responsible in tort for the decedent's unfortunate life-ending act. In fact,Justice Peter R. Sweeney

reconfirmed this long standing principle on April 9, 2018 by granting the Port Authority's motion

to dismiss a similar complaint in Supreme Court, Kings County, wherein plaintiffs attempted to

hold the Port Authority liable for a suicide committed at the George Washington Bridge. This

Court should likewise hold that plaintiff's action cannot be sustained under New York law because

there is no duty that can be imposed upon a governmental entity for the alleged failure to prevent

a suicide absent a special relationship, which did not exist here.

STATEMENT OF RELEVANT FACTS

The Port Authority is a bi-state agency created by compact in 1921 between the States of

New York and New Jersey with the consent of the Congress of the United States to construct and

operate transportation facilities in the bi-state region, including the George Washington Bridge.

1921 N.Y. Laws, Ch. 154; 1921 N.J. Laws, Ch. 151; 42 Stat., 174., N.Y. Unconsol. Laws §§ 6401,

6407, 6501 (McKinney). From this grant of authority, and pursuant to the Federal Bridge Act of

1906, the Port Authority constructed the George Washington Bridge and presently operates the

same. "[T]he port authority shall be regarded as performing a governmental function in

undertaking the said construction, maintenance and operation, and in carrying out the provisions

bridge."
of law relating to the said (emphasis supplied). N.Y. Unconsol. Laws ( 6515 (McKinney).

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The George Washington which opened to traffic in is a two-
Bridge, 1931, fourteen-lane,

level suspension bridge over the Hudson River joining upper Manhattan and Fort Lee, New Jersey.

The bridge and its approaches provide connections via I-95 (New Jersey Turnpike) between I-80

in New Jersey and I-87 (New York State Thruway) in New York as well as serving as an artery

for other regional highways in each State.

On July 27, 2017, the decedent walked along the South Walkway of the bridge and at

approximately 6:35 a.m., he reportedly jumped over the four foot railing, which resulted in his

death. See Complaint, ¶10. In the same month, 4,688,669 vehicles crossed the George Washington

Bridge and utilized itfor itsintended use-as a vehicular crossing between the States of New York

Jersey.1
and New

Itis troubling that suicide rates have increased by 25% across the United States in 20 years,

but this is not a basis to hold the Port Authority liable for the decedent's self-inflicted injury. On

December 21, 2017, the Center for Disease Control and Prevention ("CDC") released the most

2016.2
recent data related to suicide for the year 2016. According to the data, suicide is stillthe tenth

leading cause of death in the United States and the rate of suicide in 2016 increased by 1.2%. The

CDC also reported that in 2016, suicide was the tenth leading cause of death overall in the United

States, claiming the lives of nearly 45,000 people. Specifically, the study showed that suicide was

the second leading cause of death among individuals between the ages of 10 and 34, and the fourth

leading cause of death among individuals between the ages of 35 and 54.

1 http://www.panvn).gov/bridges-tunnels/pdf/traffic-e-zpass-usage-2017.pdf

2 https://webappa.cdc.gov/cgi-bin/broker.exe

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While plaintiff suggests that suicide is only on the rise at the George Washington Bridge,

this is a national problem not attributable to the Port Authority. It islong and deeply established

that a governmental entity, such as the Port Authority, is not responsible for allegedly failing to

take certain security measures to prevent a person from being harmed, absent a special relationship

between the person and the entity.

ARGUMENT

Motion to Dismiss Standard

"A party may move for judgment dismissing one or more causes of action asserted against

action" 3211(a)(7)."
[it]on the ground that . .. the pleading fails to state a cause of CPLR In

assessing a motion to dismiss made pursuant to CPLR 3211(a)(7), the facts pleaded are presumed

to be true and are accorded every favorable inference. See Riback v. Margulis, 43 A.D.3d 1023

(2007). However, where the allegations in a complaint consist of bare legal conclusions, they are

not entitled to any such consideration. Id.;EBC I, Inc.v. Goldman, Sachs & Co., 5 N.Y.3d 11, 27

(2005). Indeed, under New York law, for a complaint to survive dismissal pursuant to CPLR

itmust do more than state bare legal conclusions - - itmust set forth factual allegations
3211(a)(7),

that state a claim, which falls within a cognizable legal theory. See, e.g.,Leon v. Martinez, 84

N.Y.2d 83, 87-88 (1994).

Plaintiff's Complaint is based upon wrongful death and survival causes of action under New

York negligence law, for which the Port Authority stands liable in negligence only for breach of a

duty of care owed to the plaintiff. See Pulka v. Edelman, 40 N.Y.2d 781, 782 (1976). The existence

and scope of the Port Authority's duty is,in the firstinstance, a legal question to be determined by

the Court. See Di Ponzio v. Riordan, 89 N.Y.2d 578, 583 (1997).

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POINT I

PLAINTIFF'S COMPLAINT FAILS TO STATE
A VIABLE CAUSE OF ACTION FOR WRONGFUL DEATH

The courts have held that there are only two situations where liability exists for the failure

to prevent a suicide. The first is where a facility such as a hospital or jail,which has physical

custody of an individual, fails to take reasonable steps to prevent a reasonably foreseeable suicide.

Gordon v. City of New York, 70 N.Y.2d 839, 840 (1987) (holding that the City failed to satisfy its

duty of care to plaintiff prisoner where authorities knew or had reason to know of his suicidal

tendencies). The second is where an institution or mental health professional with sufficient

expertise to detect suicidal tendencies and with the control to care for the person's well-
necessary

being, fails to take such steps. See Huntley v. State of New York, 62 N.Y.2d 134, 137 (1984) (failure

of hospital staff member to transmit information to staff psychiatrist rendered hospital liable for

negligence where plaintiff left hospital premises unsupervised and jumped from the roof of a

nearby parking garage). Here, the Port Authority had neither physical custody nor control over the

decedent who made an unfortunate decision to end his lifeby jumping over a 4-foot barrier to his

death.

The First Department in the matter Cygan v. City of New York, 165 A.D.2d 58 (1991)

determined that there is no duty to prevent suicide absent the limited exceptions enumerated above.

In Cygan, a 14-year veteran of the New York Police Department shot himself to death in his home

with his service revolver. Id. at 59. The Cygan court held that the City of New York did not owe

plaintiff a duty of care because itneither had physical custody nor control over the decedent, who

was evaluated for his as a police not as a psychiatric patient. Id. at 67-
only competency officer,

68.

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Plaintiff will likely rely upon the district court's decision in Ginsburg v. City of Ithaca, 839

F. Supp. 2d 537 (N.D.N.Y. 2012), to allege a duty owed; however, Ginsburg is distinguishable

from the case at hand and Judge Sweeny correctly held that itsholding is "contrary to appellate

State."
authority in this Sweeney decision, p.4. In Ginsburg, Cornell and the City of Ithaca

redesigned and reconstructed a pedestrian bridge that connected the area where freshman students

live to the main academic campus, specifically to prevent Cornell student suicides. Id. at 539. In

fact, a Cornell employee acknowledged that safety measures were necessary to prevent students

from jumping off the bridge in light of the statisticthat "up to fifteen percent of Cornell students

basis.'"
contemplate suicide 'on a pretty regular Id. at 541. The district court determined that

Cornell University and the City of Ithaca jointly controlled and maintained the Thurston Avenue

Bridge for purposes of the litigation and any duty owed to the plaintiff would be ascribed to both

entities. Id. Because the stated purpose for the redesign was implementation of suicide prevention

measures, and Cornell and the City of Ithaca failed to adequately do so,plaintiff's claims for failure

542-543.3
to maintain the bridge in a reasonably safe condition survived. Id at 542-543. Whatever the law

might require when an operator wholly redesigns and reconstructs a pedestrian bridge, the Port

Authority's duties are distinct here since the George Washington Bridge has been in operation

more than 85 years and is the world's busiest motor vehicle bridge.

The facts here are akin to those in Milligan v. Golden Gate Bridge Highway and

Transportation Dist., where a 14-year-old girl took a cab to the Golden Gate Bridge, walked onto

the bridge, climbed over the three and one-half-foot railing and jumped to her death. 120 Cal. App.

4th 1, 4 (2004). According to the opinion, plaintiff argued, "more than 1,200 people had jumped

3 Itshould be noted that the districtcourt did not on New York law to people
rely any pertaining committing
suicidein support of itsreasoning toallow plaintiff's
claims to survive. Instead, the court
district citedgeneral
principles of New York negligence law, with no specific citations to on-point New York cases on suicide
prevention.

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from the bridge since itopened in 1937 and the Bridge District rejected numerous plans to erect a

barrier."
suicide Id The plaintiff's theory was that the bridge constituted a dangerous condition

of public property because itlacked a suicide barrier, in addition to the existing three-and-one half

foot safety railing. Id at 7. The appellate court rejected plaintiff's argument and held:

Reasonable minds will reach but one conclusion as to whether the lack of a suicide barrier
is a dangerous condition. By definition, persons who use the bridge to commit suicide are
not using the bridge in a manner used by the general public exercising ordinary care. Id

In affirming the trialcourt's ruling that there could be no liability against the Golden Gate Bridge,

the appellate court further explained, "persons who climb over the existing three-and-one half-foot

railing and jump to their death are doing something no reasonable person using due care would

do."
Id at 8.

Similarly, in Nelson v. Massachusetts Port Auth., 55 Mass. App. Ct. 433, 434 (2002), the

appeals court struggled with the issue of "what is the duty of one who owns a bridge to one who

it?"
commits suicide by jumping from The complaint in Nelson alleged the same theory of

negligence as raised herein, namely that Massport negligently failed to install adequate safeguards

to prevent individuals from committing suicide by jumping off the Tobin Bridge. Id. The court

held that "Massport owed the decedent the same duty owed to all those lawfully on the bridge: a

condition."
duty to use reasonable care to maintain the property in a reasonably safe Id at 436.

The court explained, "Massport was not obliged to supply a place of maximum safety, but only

one which would be safe to a person who exercises such minimum care as the circumstances

indicate."
reasonably Id

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Accordingly, plaintiff failed to state a cause of action for wrongful death because she has

not and cannot plead that the Port Authority caused the decedent's death or had control over the

GWB.4
decedent prior to his decision to end his lifeby committing suicide on the GWB.

A. New York State Law Does Not Allow the Imposition of Liability
Where There is No Duty Owed and Where No Special Relationship
Exists Between a State Actor and an Injured Person

The Port Authority, in its operation of the George Washington Bridge, is performing a

governmental function through its police powers. N.Y. Unconsol. Laws § 6515 (McKinney).

"Police protection, particularly is a quintessential example of a governmental function as it

involves 'the provision of a governmental service to protect the public generally from external

hazards and particularly to control the activities of criminal wrongdoers'". In re World Trade Ctr.

Bombing Litig., 17 N.Y.3d 428, 448 (2011).

Where an agency acts in a governmental capacity, a plaintiff may not recover without

duty"
proving that the agency owed a "special to the injured party. Valdez v. City of New York, 18

N.Y.3d 69, 75 (2011). The core principle isthat "to sustain liability against a [government agency],

generally."
the duty breached must be more than that owed the public Id. (citing Lauer v. City of

New York, 95 N.Y.2d 95, 100 (2000)). The plaintiff bears the burden of proving a special

relationship, and where the plaintiff fails to meet this burden, liability may not be imputed to the

4 magnet"
To the extent plaintiff refers to the George Washington Bridge as a "suicide in her

Complaint, the attractive nuisance doctrine has been dead letterlaw for generations. See Walsh v. Fitchburg
Railroad Co., 145 N.Y. 301, 308 (1895) (holding that a property owner owes a duty of reasonable care to
those using itspremises and may be responsible "for injuries which are the direct and probable and natural
results of [its]action.") Specifically, the Court in Morse v. Buffalo Tank Corp., 280 N.Y. 110, 115 (1939),
held thatan attractive nuisance did not apply in New York, and thatthe only duty which an owner of land
owes to a trespasser or bare licensee is to abstain from affirmative acts of negligence or not to injure

intentionally such person.

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capacity."
agency that acted in a governmental Applewhite v.Accuhealth, Inc., 21 N.Y.3d 420, 426

(2013).

To establish a special relationship beyond the duty that is owed to the public generally,

four elements must be present: (1) an assumption by the agency, through promises or actions, of

an affirmative duty to act on behalf of the party who was injured; (2) knowledge on thepart of the

agency's employees that inaction could lead to harm; (3) some form of direct contact between the

agency's employees and the injured party; and (4) that party's justifiable reliance on the agency's

affirmative undertaking. 21 N.Y.3d at â€” Velez v. New 730
See, Applewhite, 430-31; City of York,

F.3d 128, 135 (2d Cir. 2013).

The Port Authority, a governmental entity, is not an insurer against harm suffered by the

general population. Thus, in order to pursue an action against the Port Authority, plaintiff was

required to allege a special â€”
duty-which she has failed to do. 18 N.Y.3d at 75.
Valdez,

reliance"
The "justifiable requirement is the most critical factor "because it'provides the

duty'
essential causative link between the 'special assumed by the municipality and the alleged

injury'". Valdez, 18 N.Y.3d at 80-81. The issue of whether a plaintiff offered sufficient evidence

to establish this fourth requirement is a question of law for the court. Id. Unlike Mastroianni v.

Cty. of Suffolk, 91 N.Y.2d 198, 203 (1997), where the decedent's estate was able to prove a

justifiable reliance was created between the victim and the officers, here no such reliance was pled.

In Mastroianni, the police had promised to assist the victim when her husband violated an order

of protection after being informed that the husband remained nearby at a neighbor's house. Id.

The police remained in the area creating a basis for the victim to believe they would provide police

protection, and then the officers left for a meal break, only to return later to find the decedent

stabbed to death, which the court found was the causative link for justifiable reliance. Id. at 203.

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Courts have routinely held that there is no special relationship created between the victims

of suicide and bridge operators, such as the Port Authority. In fact, Justice Sweeney resolved this

very issue on April 9, 2018 in holding that because the complaint failed to plead any allegations

of a special relationship between the decedent and the Port Authority, the complaint did not allege

facts giving rise to a duty by the Port Authority to prevent the decedent from committing suicide

by jumping off the George Washington Bridge. Sweeney decision, p.3.

In Estate of Imrie v. Golden Gate Bridge, Highway and Transp. Dist., 282 F. Supp. 2d

1145 (N.D. Cal. 2003), plaintiff alleged that defendants placed Imrie in danger by "continuing to

open the Bridge to pedestrians without a suicide barrier, thereby creating an unnecessarily facile

life."
opportunity for her to take her The court stated that the bridge's failure to prevent suicide is

not a claim of negligence that is remediable through the Due Process Clause. Imrie, 282 F. Supp.

2d at 1149. The court further reasoned, "to create a danger, the state must have left plaintiff in a

her."
situation that was more dangerous than the one in which they found Id. The court held that

defendantsdid not take any affirmative action that placed Imrie in danger and that plaintiffs failed

to state a claim because the state "is not held responsible merely because itrefused to protect Imrie

herself."
from Id

Here, plaintiff cannot establish a special relationship was owed to the decedent. Plaintiff

fails to plead any facts that establish actions taken by the Port Authority resulted in a justifiable

reliance by the decedent that the Port Authority would protect him prior to his decision to end his

life. In fact, the Complaint alleges that the decedent walked along the South Walkway of the

bridge, and without warning or any interaction with the Port Authority, jumped over the railing

into the Hudson River. (see Donaldson complaint ¶ 10). Plaintiff's case falls squarely within the

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governmental immunity offered to municipalities, like the Port Authority, because there was no

special relationship created between the decedent and the Port Authority.

POINT II

THE PORT AUTHORITY'S OPERATION OF THE
GEORGE WASHINGTON BRIDGE IS AN ESSENTIAL GOVERNMENTAL
FUNCTION AND IT IS THEREFORE IMMUNE FROM THIS SUIT

The Port Authority is performing a governmental function in its operation of the George

Washington Bridge. The Court of Appeals and the New Jersey Supreme Court have consistently

Case Info

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Document Filed Date

July 11, 2018

Case Filing Date

April 19, 2018

County

Parties

ALTERMAN, CHERYL N Attorney for the Defendant
COSTIGAN, WILLIAM F. Attorney for the Plaintiff
Marybeth Donaldson Plaintiff
Marybeth Donaldson Administrator of the Estate of Andrew Donaldson, Deceased Plaintiff
Marybeth Donaldson as Parent and Natural Guardian of A. D. and C. D. Plaintiff
The Port Authority of New York and New Jersey Defendant
KARLA DENALLI Attorney
WILLIAM CHOU Attorneys for Plaintiffs
WILLIAM CATLAN Attorney
CHERYL NEUMAN Attorney
WILLIAM FINNEGAN Attorney

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Motion-Secondary: Marybeth Donaldson, Marybeth Donaldson Administrator of the Estate of Andrew Donaldson, Deceased, Marybeth Donaldson as Parent and Natural Guardian of A. D. and C. D. v. The Port Authority Of New York And New Jersey

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