Perhaps defendants’ speculation would be adequate under Georgia law, relied upon by the majority and defendants, which holds that "suicide is an unforeseeable intervening cause of death which absolves the tortfeasor of liability" (La Quinta Inns, 289 Ga.App. at 816, 658 S.E.2d 637, quoting Dry Storage Corp. v. Piscopo, 249 Ga.App. 898, 900, 550 S.E.2d 419 [2001]). New York law is diametrically opposed (see Fuller v. Preis, 35 N.Y.2d 425, 429, 363 N.Y.S.2d 568, 322 N.E.2d 263 [1974] ["(T)he act of suicide, as a matter of law, is not a superseding cause in negligence law precluding liability"]; Ferrer, 214 A.D.2d at 312, 624 N.Y.S.2d 425 [finding foreseeability of suicide an issue for the jury]; see also Feldman v. Port Auth. of N.Y. & N.J., 194 A.D.3d 137, 142, 144 N.Y.S.3d 701 [1st Dept. 2021] [finding sui- cides to be foreseeable harm giving rise to duty]). The majority’s reliance on (Mantas v. JJC Constr. Corp., 92 A.D.3d 559, 939 N.Y.S.2d 354 [1st Dept. 2012], affd 20 N.Y.3d 1016, 963 N.Y.S.2d 164, 985 N.E.2d 1225 [2013]) again illustrates its reversal of the burden of proof, In Mantas, which addressed a motion for directed verdict after trial, the burden was not on defendant to rebut causation but on plaintiff to show it (see id. at 560, 939 N.Y.S.2d 354).
Perhaps defendants' speculation would be adequate under Georgia law, relied upon by the majority and defendants, which holds that "suicide is an unforeseeable intervening cause of death which absolves the tortfeasor of liability" (La Quinta Inns, 289 Ga App at 816, quoting Dry Storage Corp. v Piscopo, 249 Ga App 898, 900 [2001]). New York law is diametrically opposed (see Fuller v Preis, 35 N.Y.2d 425, 429 [1974] ["(T)he act of suicide, as a matter of law, is not a superseding cause in negligence law precluding liability"]; Ferrer, 214 A.D.2d at 312 [finding foreseeability of suicide an issue for the jury]; see also Feldman v Port Auth. of N.Y. & N.J., 194 A.D.3d 137,142 [1st Dept 2021] [finding suicides to be foreseeable harm giving rise to duty]).
This appeal ensued. Claimants assert that the Commission's oversight of harness racing was a proprietary function and that defendant must therefore be held to an ordinary negligence standard (seeApplewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 425, 972 N.Y.S.2d 169, 995 N.E.2d 131 [2013] ; Feldman v. Port Auth. of N.Y. & N.J., 194 A.D.3d 137, 140, 144 N.Y.S.3d 701 [2021] ). Although claimants did not specifically oppose defendant's summary judgment motion on this basis, the inquiry as to whether a governmental entity is engaged in a proprietary function as opposed to acting in a governmental capacity is a question of law which must be addressed when a negligence claim is brought against that entity (seeGoldman & Assoc., LLP v. Golden, 115 A.D.3d 911, 912–913, 982 N.Y.S.2d 519 [2014] ; Vanship Holdings Ltd. v. Energy Infrastructure Acquisition Corp., 65 A.D.3d 405, 408, 884 N.Y.S.2d 24 [2009] ; see alsoMoore v. Del–Rich Props., Inc., 151 A.D.3d 1817, 1818–1819, 58 N.Y.S.3d 772 [2017] ).
Plaintiff's decedent died by suicide when he jumped from the George Washington Bridge (GWB), which is owned and operated by the Port Authority. Contrary to the Port Authority's contention that the complaint is addressed to actions taken in its governmental capacity, both this Court and the Second Department have recently held, in cases involving similar facts, that the Port Authority's responsibility for maintaining the guardrail on the pedestrian walkway over the Bridge is a proprietary function rather than a governmental function (Feldman v Port Auth. of N.Y. and N.J., 194 A.D.3d 137, 141-142 [1st Dept 2021]; Perlov v Port Auth. of N.Y. and N.J., 189 A.D.3d 1624, 1627-1628 [2d Dept 2020]; see generally Wittorf v City of New York, 23 N.Y.3d 473, 479 [2014]; Sebastian v State of New York, 93 N.Y.2d 790, 793 [1999]). As in Feldman and Perlov, plaintiff states a cause of action by alleging that the Port Authority, as a property owner, "failed to maintain the GWB in a reasonably safe condition by negligently failing to install suicide barriers along the walkways to prevent suicides," thus presenting a foreseeable risk of harm in light of the allegations concerning the history of the George Washington Bridge's walkway as a place where frequent suicides occur.
Plaintiff's decedent died by suicide when he jumped from the George Washington Bridge (GWB), which is owned and operated by the Port Authority. Contrary to the Port Authority's contention that the complaint is addressed to actions taken in its governmental capacity, both this Court and the Second Department have recently held, in cases involving similar facts, that the Port Authority's responsibility for maintaining the guardrail on the pedestrian walkway over the Bridge is a proprietary function rather than a governmental function (Feldman v Port Auth. of N.Y. and N.J., 194 A.D.3d 137, 141-142 [1st Dept 2021]; Perlov v Port Auth. of N.Y. and N.J., 189 A.D.3d 1624, 1627-1628 [2d Dept 2020]; see generally Wittorf v City of New York, 23 N.Y.3d 473, 479 [2014]; Sebastian v State of New York, 93 N.Y.2d 790, 793 [1999]). As in Feldman and Perlov, plaintiff states a cause of action by alleging that the Port Authority, as a property owner, "failed to maintain the GWB in a reasonably safe condition by negligently failing to install suicide barriers along the walkways to prevent suicides," thus presenting a foreseeable risk of harm in light of the allegations concerning the history of the George Washington Bridge's walkway as a place where frequent suicides occur.
Moreover, "a municipal defendant generally is immune from liability for conduct involving the exercise of discretion and reasoned judgment" (Johnson v City of New York, 65 A.D.3d 476, 477 [1st Dept 2009], affd 15 N.Y.3d 676 [2010]). To determine whether immunity applies, courts must distinguish between a governmental authority's proprietary functions, which are actionable, and its governmental functions, which are not (see Feldman v Port Auth. of NY & NJ., 194 A.D.3d 137, 140 [1st Dept 2021]).
Moreover, "a municipal defendant generally is immune from liability for conduct involving the exercise of discretion and reasoned judgment" (Johnson v City of New York, 65 AD3d 476, 477 [1st Dept 2009], affd 15 NY3d 676 [2010]). To determine whether immunity applies, courts must distinguish between a governmental authority's proprietary functions, which are actionable, and its governmental functions, which are not (see Feldman v Port Auth. of N.Y. & N.J., 194 AD3d 137, 140 [1st Dept 2021]).