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Lincoln Center and New York City Negotiate Over Liability
May 19, 2010

In the brightness of morning, when the sun glints off the gushing fountain, or at twilight, as people cross the travertine on their way to performances, the plaza at Lincoln Center can be one of New York's tranquil oases.

Unless, of course, you're an insurance executive who sees instead the potential orthopedic calamity created by the convergence of splashing water, polished stone and big crowds.

People fall down at Lincoln Center once in a while, just as they do at shopping malls and sports arenas and many other great public spaces in New York.

But if someone were to slip, say, on the steps at the Metropolitan Museum of Art, or the walkways of the New York Botanical Garden, or the entrance to the Brooklyn Museum, New York City would not have primary liability even though it owns the land.

Thirty-two of the 33 cultural organizations that operate in city-owned buildings or on city-owned land have long agreed to indemnify the city against liability for slips and falls and other stumbles.

Only Lincoln Center has not been governed by that policy.

But now the city is demanding that Lincoln Center join the others in assuming liability for its public spaces, a change that the institution is strenuously resisting. The shift would cost money at a time of budget challenges - by one estimate, at least $1.4 million a year, though precisely how much is unclear.

According to the City Law Department, the city payouts for claims involving Lincoln Center's outdoor public spaces during the last 10 years have been about $200,000 to $250,000 a year, not including costs like city lawyers' time.

The standoff coincides with the $1.2 billion redevelopment of the Lincoln Center campus, an ambitious overhaul that largely focused on the public areas, like the fountain plaza and the West 65th Street corridor, home to the Juilliard School, Lincoln Center Theater and the Film Society of Lincoln Center. On Wednesday Lincoln Center announced the opening of some of its completed new public spaces, including a grand entrance stair up to the fountain plaza.

"Lincoln Center is the only cultural organization using and maintaining public space that has been indemnified by the City of New York rather than being responsible for liabilities arising from that maintenance," said Kate D. Levin, the commissioner of cultural affairs.

Negotiations have been going on since the center's agreement with the city expired last year, according to officials on both sides. Lincoln Center's redevelopment - to which the city has committed $240 million - has arguably increased the institution's exposure by expanding the public areas. The project has included enlarging the 65th Street sidewalk, creating a sloping grass roof above a new restaurant in the north plaza - which opens on Friday - and adding bleachers outside a newly renovated Alice Tully Hall.

And the average passer-by can notice that the refurbished fountain now often sends the jets of water farther afield.

Lincoln Center says it should not be penalized for these enhancements. If anything, its officials argue, Lincoln Center should be rewarded with additional city assistance for having added new areas and improved existing ones.

Reynold Levy, the president of Lincoln Center, declined to discuss the issue because of the negotiations with the city.

The talks have been amicable, both sides said. "The city has long supported Lincoln Center financially through capital contributions and through programming partnerships," said Adrian Benepe, the parks commissioner. "It's a reasonable group that we feel an affinity for. We'd like to be resolved soon."

Liability is a major municipal expense. In the 2009 fiscal year, the last year for which a final tally has been completed, the city, which is self-insured, paid about $40 million in settlements and judgments that arose just from cases filed for injuries suffered on sidewalks, according to the comptroller's office.

The city-owned land at Lincoln Center includes the fountain plaza, the perimeter sidewalks and Damrosch Park, the square of green between the Metropolitan Opera and the David H. Koch Theater, which is home to New York City Opera and the New York City Ballet.

Under the city's proposal to Lincoln Center, it would retain primary liability for some of the public areas, like the sidewalk on West 62nd Street.

It is unclear why Lincoln Center has its particular arrangement. The exception dates to 1993, when the center's license agreement with the Parks Department was renegotiated and the indemnity provision was reversed so that the city began indemnifying Lincoln Center. Officials said they could not immediately provide the rationale for the change.

The cultural organizations on municipal land around the city all have their own arrangements with the city about where the liability line extends, although they are a bit skittish about discussing it, lest they invite a rash of feigned falls.

"The Met as a practice never discusses security or insurance," said Harold Holzer, a spokesman for the Metropolitan Museum.

But the longstanding agreement is that the Metropolitan is responsible for its staircase and for its sidewalk plaza, including the fountains. At the American Museum of Natural History the museum indemnifies the city for anything above sidewalk level, including the entrances and stairs, but the Parks Department maintains the sidewalks and parks. At the Brooklyn Museum the entrance plaza, the fountain and the perimeter sidewalk are maintained by the museum, which indemnifies the city.

Lincoln Center officials would not estimate how many claims involving its public spaces were typically filed. But Thomas Pietrantonio, a lawyer for a retired real-estate broker who slipped and fell near the fountain in 2005, said the city told him then that it had fielded about 30 similar claims involving areas of the Lincoln Center property over the previous five years.

The case involving the retiree, Gayle Fox Weinman, who was on her way to see a performance of New York City Ballet, is continuing.



Website: http://www.nytimes.com/2010/05/20/arts/music/20liability.html?scp=6&sq=slip%20and%20fall%20accidents&st=cse

 
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