Why Failing to Provide a Crossing Guard Isn't Negligence in New York
Unfortunately, ever year there are a number of incidents where school children are involved in accidents with passing cars or buses. And in some cases, it seems that the accident could have been prevented - if only the school or district had provided a crossing guard (or in some cases, had the crossing guard made it to their assigned post).
The question is, however, can the failure to provide a crossing guard constitute negligence on the part of the school district or municipality?
In most circumstances, the answer is a resounding no. At least not in New York.
"Providing crossing guards is one of the governmental functions which is within the discretion of a municipality ( see Vandewinckel v. Northport/East Northport Union Free School Dist., 24 A.D.3d 432, 805 N.Y.S.2d 133). In order to hold a municipality liable for the negligent performance of a governmental function, a plaintiff must establish that a special relationship with the municipality exists ( see Kovit v. Estate of Hallums, 4 N.Y.3d 499, 797 N.Y.S.2d 20, 829 N.E.2d 1188)."
In other words, in order to prevail on a claim that the municipality was negligent in failing to provide crossing guards at that time and place, a plaintiff would be required to prove that the municipality had specifically assumed the responsibility to that particular plaintiff to provide that service.
Putting it mildly, that is a daunting burden of proof.