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Law Offices of Jonathan M. Cooper

Why Proving Liability for Dangerous Intersections by Schools is So Tough

"Everyone" may "know" that an intersection by your child's school is dangerous; after all, how many times have you heard remarks about how parents are concerned about the lack of traffic control devices by those streets fronting the school, or how they've seen cars whizzing by without regard to the presence of a school nearby.

And then, G-d forbid, a tragedy occurs.

The question then, at least from a legal standpoint, is dual: (1) who, if anyone is responsible; and, (2) how can you prove it?

The answer to this question can be a bit complicated, at least in New York, as the answer to the two questions presented are intertwined. Leaving aside, for the moment, the liabilty of the driver, or drivers, involved in this accident, who presumably would also bear a signifcant share of the liability for the accident as well, the State, public authorities and municipalities also may bear some liability as well, because they have a non-delegable duty to warn motorists of dangerous conditions on highways of which they have actual or constructive notice of a dangerous condition, and also to protect motorists by appropriate barriers, guardrails and traffic control devices ( see, Friedman v. State of New York, 67 N.Y.2d 271, 502 N.Y.S.2d 669, 493 N.E.2d 893; Lopes v. Rostad, 45 N.Y.2d 617, 412 N.Y.S.2d 127, 384 N.E.2d 673; Hicks v. State of New York, 4 N.Y.2d 1, 171 N.Y.S.2d 827, 148 N.E.2d 885; 65 N.Y. Jur 2d, Highways, Streets and Bridges, §§ 390–391).

That said, it is often extremely difficult to prove liability against a governmental entity for its roadway design because municipalities enjoy a qualified immunity with respect to their judgment regarding highway design engineering (Friedman v. State of New York, 67 N.Y.2d 271, 283, 502 N.Y.S.2d 669, 493 N.E.2d 893, supra ; Alexander v. Eldred, 63 N.Y.2d 460, 465–466, 483 N.Y.S.2d 168, 472 N.E.2d 996).

There is an important caveat to this rule, however:

Under the doctrine of qualified immunity “a governmental body may be held liable when its study of a traffic condition is plainly inadequate or there is no reasonable basis for its traffic plan” ( Friedman v. State of New York, supra, at 284, 502 N.Y.S.2d 669, 493 N.E.2d 893, citing Alexander v. Eldred, supra ).


Jonathan Cooper
Employment Litigation and School Negligence Lawyer