Should the Municipality Be Liable When Its Park Is Being Used for Criminal and Dangerous Activities ?

In Caldwell, plaintiff was injured when other park goers set off fireworks on July 4th. The court there held that the municipality should be liable when "it is or should be apparent or it otherwise comes to the attention of a municipality that its park is being used by visitors as a site for criminal and patently dangerous activities." (Caldwell, 304 NY at 275.) In that case, the park had been used for illegal fireworks displays for "a considerable period of time preceding the accident" and therefore "there was reason for the village to believe that the illegal activities would continue and perhaps be increased on the day of plaintiff's injuries." (Id. at 275.) The courts have explained that "a municipality's provision of police protection to its citizenry has long been regarded as a resource-allocating function that is better left to the discretion of the policy makers." (Cuffy v. City of New York, 69 NY2d 255, 260, 505 NE2d 937, 513 NYS2d 372 [1987].) In contrast, quintessential proprietary functions are those in which "governmental activities essentially substitute for, or supplement 'traditionally private enterprises' " and include the maintenance and repair functions typically performed by landlords. (Doe, 67 AD3d 854, 856, 890 NYS2d 548 [2009].) "To determine where in the continuum of activity between proprietary and governmental responsibilities the challenged public action falls, we must 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.' " (Balsam, 90 NY2d 966, 967-968, 688 NE2d 487, 665 NYS2d 613 [1997]). In Bonner v. City of New York, the Court of Appeals held that the City was acting in its governmental and not proprietary capacity when it failed to fix a broken gate at a schoolyard where a teacher was assaulted by a third party. (See Bonner v. City of New York, 73 NY2d 930, 536 NE2d 1147, 539 NYS2d 728 [1989].)