II. SPECIAL DUTY RULE

A. Defined: The special duty rule relates to a municipality's duty, or more aptly, the lack thereof, to protect plaintiff from third parties or from harmful forces (e.g., fires). It is an exception to ordinary tort rules which apply to non-governmental defendants. In a nutshell, the municipal defendant has no duty to act unless it assumes a "special duty" to do so.

Notwithstanding the fact and law that the municipal corporation is a creation of the Legislature, is the fact that lurking underneath almost all discussions of municipal liability is the separation of powers, i.e., the reluctance of the courts to encroach on the administration or rule making authority of the municipality as it administers its police, fire, and line functions of organizing, representing, and protecting the public.

Two different legal issues must be determined. (1) Whether the act or omission was primarily "proprietary" in nature (and thus governed by ordinary tort rules) Miller v. State, 62 N.Y.2d 506, 478 N.Y.S.2d 829 (1984) (proprietary); or (2) governmental (no liability unless a "special duty" Weiner v. MTA, 55 N.Y.2d 175, 448 N.Y.S.2d 141 (1982), Riss v. City, 22 N.Y.2d 579, 293 N.Y.S.2d 897 (governmental). But one discrete exception is also in place although not usually phrased that way: highway maintenance, although more by nature governmental, is treated as proprietary, and ordinary tort rules apply. Judge Bellacosa wrote in Sebastian v. State of New York, 93 N.Y.2d 790, 698 N.Y.S.2d 601 (1999) that the governmental, proprietary distinction is really a "continuum" that begins at one end with the purest proprietary matter and eventually extends to governmental matters. The issue in Sebastian was whether the State would be held liable in negligence for injuries inflicted by a juvenile delinquent who escaped from a Vision For Youth facility (93 N.Y.2d at 792). The court held that this activity was a "quintessential governmental activity."

The factors as to whether an act or omission is governmental and whether the special duty rule applies is set forth in the seminal case of Cuffy v. City of New York, 69 N.Y.2d 255, 513 N.Y.S.2d 372 (1987). In that case, the Court of Appeals held four elements must be present to form a special relationship, as follows:

(1) An assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured;

(2) knowledge on the part of the municipality's agents that inaction could lead to harm;

(3) some direct contact between the municipality's agents and the injured plaintiff; and

(4) that party's justifiable reliance upon the municipality's affirmative undertaking.

Police cases are most usually termed a governmental function and subject to the "Cuffy" rule.

In Grieshaber v. City of Albany, 720 N.Y.S.2d 214 (Third Dept., 2001), the decedent was murdered in her basement apartment in Albany. Decedent's estate alleged that a 911 telephone call was made by the decedent at 6:47 P.M. and was not responded to promptly. The police officers arrived five minutes later but had to wait for the arrival of an animal control officer to subdue the decedent's dog, and thusly didn't enter her apartment until 7:45 P.M., at which time they found her lying on the floor with the post of a heavy bed on her neck. The cause of death was asphyxiation due to compression of her neck. The defendant moved for sj because of no special relationship, and the plaintiff interposed an affidavit of the police officer receiving the call that the decedent made 911 calls on two or three prior occasions, had been promised that help was on the way, and the officer heard screams, scuffling noises, and the words "get out, get out" yelled by the decedent. Further, they interposed an affidavit of a forensic psychologist who opined that decedent placed the call with a reasonable expectation that assistance would be prompt (thus the reliance). Supreme Court denied the motion, but the Third Department reverses citing the four Cuffy elements. Plaintiff satisfied the first three, but not the fourth: the decedent's justifiable reliance on the municipality's affirmative undertaking. They held that decedent's reliance must have placed her in a worse condition then she would have been had the municipality never assumed the duty. Plaintiff urged that decedent was in a worse position because it is assumed that once decedent called she relaxed her vigilance and not engaged in fighting off her assailant. The court rejected this argument. The proof showed that when she made her call she was already at the mercy of her attacker and was offering ernest resistance to the attack, but was subdued by him. The struggle was ongoing when she made her call. The court rejected the comparison with the facts in DeLong v. County of Erie (60 N.Y.2d 296) because there the assailant was outside the decedent's home at the time she made her 911 call, and 13 minutes elapsed between the call until she was seen running from the house unclothed and bleeding profusely. The further assurances of the 911 operator in that case was that the station house was only one and one-half blocks away, and that they would be there immediately. Here, the decedent was already undergoing the assault when she called, and there is no basis for a finding that she forewent any avenue of escape on the basis of the assurances of the 911 operator.

Another more recent example of the special duty rule applied to late ambulances is the case of Baez v. City, 309 A.D.2d 679, 765 N.Y.S.2d 875 (First Dept., 2003). The plaintiff claimed a late arrival of an ambulance which apparently caused further injury and death. The case is dismissed at trial at the end of the plaintiff's case and affirmed on appeal. The plaintiff failed to meet the burden of establishing a special relationship based on the "Cuffy" rules: There was no direct contact between either herself or the decedent. The persons who made the 911 calls were disinterested non-party volunteers who were not acting at the direction of either the plaintiff or the decedent. Also, plaintiff didn't establish reliance since there was no evidence of any of the 911 operators ever giving any indication of when an ambulance would be arriving.

B. Special duty rule in police cases: Jessop v. City of Niagara Falls, 247 A.D.2d 902, 669 N.Y.S.2d 110 (Fourth Dept., 1998). Police gave chase to a drunk driver who ended up crashing into a mobile home in which plaintiffs were passengers. The City's police officers had encountered the driver 15 minutes earlier exiting a parked auto and had directed him not to drive because of his intoxicated condition. Obviously the direction was ignored. Plaintiff argued that the police acted negligently in failing to detain the intoxicated driver. It was held that there was no liability for such passive failure to provide police protection absent the municipality's assumption of a special duty of care.

In contrast is the more recent case of Kovit v. Hallums, 307 A.D.2d 336, 763 N.Y.S.2d 325 (Second Dept., 2003), plaintiff arrived at an accident scene after being called to the scene by an employee. One defendant, in response to a command received from one of the police officers backed her vehicle up in such way as to pin the plaintiff between that vehicle and the second defendant's vehicle which had entered the intersection. Plaintiff suffered an above-the-knee amputation. After a verdict against the City of New York, it sought to set the verdict aside for failing to make out a prima facie case. "We reject the City's contention that because there was no special relationship which would create a special duty of protection with respect to the plaintiff, it is entitled to governmental immunity for the actions of its police officers. Once the police officers undertook to direct the decedent to move her car, they were obligated to do so with due care. Accordingly, the plaintiffs were not required to demonstrate a special relationship. Liability can be imposed upon a police officer for negligently directing a citizen to move a vehicle. Here, it was evident that the police negligently directed the decedent to move her vehicle.

In Marin v. City of New York, 190 Misc.2d 809, 739 N.Y.S.2d 534 (App. Tm., First Dept., 2002), the plaintiff was stopped by a police officer for playing unreasonably loud music from his car. The officer had prepared a criminal court summons which required a court appearance. He instead, however, gave the plaintiff a copy of a parking violation summons which could be contested by mail. Plaintiff failed to appear in response to the summons, a warrant was issued, and he was arrested, searched, and incarcerated for several days until the charges were dismissed in criminal court. Plaintiff brought an action under theories of negligence and under U.S. Code, Section 1983, for civil rights violations. The jury returned an award in favor of the plaintiff on both theories. The City did not contest the civil rights violation but claimed there was no basis for the negligence verdict. The Appellate Division agreed and held, in the absence of a special duty, plaintiff could not recover since the duty to properly investigate and file charges was a duty owed to the public at large and not directed specifically to the injured plaintiff.

In Respass v. City of New York, 288 A.D.2d 286, 733 N.Y.S.2d 210 (Second Dept., 2001), plaintiff was injured when his motorcycle struck a car that had been removed from an earlier accident on a New York City highway. He claimed that his accident occurred because of the failure of the police department to properly mark and secure the first accident scene. The City moved to dismiss on the ground that it could not be responsible in the absence of a special duty. Appellate Division held that the complaint was properly dismissed on the ground that plaintiff failed to establish the existence of a special relationship. The City's placement of road flares was a "governmental function," and plaintiff was, therefore, required to establish the existence of a special relationship. Given the absence of any direct contact, there was no basis for any justified reliance to create such a duty.

Fonville v. NYCH&H, 300 A.D.2d 623, 754 N.Y.S.2d 295 (Second Dept., 2002). Plaintiff was treated by EMS workers and died shortly after, and plaintiff's intestate alleged negligence as against the EMS, i.e., in failing to timely respond and rendering inappropriate treatment. The Court held that there was no special duty, but once the EMS workers undertook treatment they must do so competently and the complaint is sustained on that theory only, i.e., that to the extent that the EMS workers improperly treated the plaintiff, the complaint is reinstated.

In Gohar v. Albany Housing Authority, 288 A.D.2d 657, 733 N.Y.S.2d 507 (Third Dept., 2001), plaintiffs were a pest control company and one of its employees performed services at a public housing complex in Albany pursuant to a contract with the Housing Authority. After completing the test control survey, plaintiff returned to his vehicle across the street from the complex carrying a satchel. He was approached by officers from the Albany Police Department who were doing drug surveillance of the area. They approached him and forced him to get out of his vehicle and wrestled him to the ground, arresting him for obstruction of governmental administration, and resisting arrest, which charges were dismissed. He then sued claiming the City was grossly negligent in failing to warn about police surveillance in the area. The lower court dismissed, and the Third Department affirmed. There was no special relationship between the Albany Police Department and the Housing Authority, and no special relationship between the plaintiff and the Police Department.

C. Transit Authority Liability for Police Protection

Rios v. NYCTA, 251 A.D.2d 484, 673 N.Y.S.2d 1020 (Second Dept., 1998). TA liability is determined according to Weiner by analyzing the specific act or omission out of which the injury occurred, and the capacity in which that action or failure to act occurred which governs liability, not whether the agency involved is engaged generally in proprietary activity or is in control of the location in which the injury occurred. So if the activities for which plaintiff seeks to hold (TA or PA) involves an allocation of police resources, i.e., absence of police surveillance at an entrance or failure to warn of criminal activity or close an entrance (e.g. to a subway), no liability arises. Weiner v. MTA, 55 N.Y.2d 175, 448 N.Y.S.2d 141 (1982) referred to the "crushing burden that would otherwise be imposed" if the police and common carrier activity are vested in the same entity, citing Steitz v. City of Beacon, 295 N.Y. 51, 55, 64 N.E.2d 704 (1945), also citing Motyka v. City of Amsterdam, 15 N.Y.2d 134, 138, 256 N.Y.S.2d 595 (1965). But, where a token clerk failed to call for help while a passenger was being assaulted in the clerk's presence, the Court of Appeals again reiterated that allegedly negligent allocation of police personnel was not actionable, but that the defendant could be held liable for other conduct causative of an assault. Crossland v. NYCTA, 68 N.Y.2d 165, 506 N.Y.S.2d 670 (1986). "Watching someone being beaten from a vantage point offering both safety and the means to summon help without danger is within the narrow range of circumstances which could be found actionable."

Over the course of years, the courts have extended Weiner to beyond allocation of police resources to virtually everything that could contribute to an assault by a third party, e.g., poor lighting in Rivera v. NYTCTA, 184 A.D.2d 417, 585 N.Y.S.2d 367 (First Dept., 1992). So now the TA has virtually no duty to prevent an assault unless it assumes a duty (which it virtually never does). Diaz v. City, 672 N.Y.S.2d 747 (Second Dept., 1998). Similarly, as to towns, where a private party rented a building owned by defendant town to use for a graduation party and guests wound up in an altercation, the town assumes no duty, neither as landlord nor governmental entity. Bilotta v. Storino, 672 N.Y.S.2d 421 (Second Dept., 1998).

In Levy v. NYCTA, 287 A.D.2d 363, 731 N.Y.S.2d 442 (First Dept., 2001), plaintiff told the police that someone was following him, and they assured him that he would be safe. He was then assaulted. He brought suit against NYCTA for failing to provide him police protection. A jury found against plaintiff. The Appellate Division affirmed the judgment for defendant and held there was no basis to conclude that the officers knew that any inaction would cause harm to the plaintiff. Plaintiff had told the police that someone was following him, and they assured him that he would be safe. One of the Cuffy elements were absent (Number 2, i.e., there was no knowledge on the part of the police that inaction would lead to harm).

D. Police and Fire Protection. Bernardo v. City of Mount Vernon, 259 A.D.2d 574, 686 N.Y.S.2d 498 (Second Dept., 1999). The 81 year old decedent sustained fatal injuries when she was pushed to the ground by a group of unidentified youths. Plaintiff claimed that the City knew that youths were typically released from middle school in the afternoon, that it knew that the youths would frequently engage in pushing, shoving, and other reckless behavior on public sidewalks, and that the City had, in fact, focused extra attention on the area where the incident occurred in order to combat problems created when large numbers of youths were released from school. The Appellate court held that the City had not assumed a special duty toward the decedent simply by targeting the area where the incident occurred for extra police attention (686 N.Y.S.2d at 499).

Protective Orders that Provide No Protection. In Clark v. Ticonderoga, 291 A.D.2d 597, 737 N.Y.S.2d 412 (Third Dept., 2002), the plaintiff had obtained an order of protection against her estranged husband because of on-going marital disputes. A police officer from the town had assured her that they would "keep an eye on her." She was injured when, after his release from prison, he returned to her premises and repeatedly assaulted her by stabbing with a knife. The Appellate Division reversed an order denying summary judgment, and held the complaint should be dismissed. It held that the plaintiff could not establish the Cuffy elements despite the fact that she had obtained the order of protection and the police had, in fact, been aware of the husband's violence towards her and the existence of the order. The court held that the plaintiff had established three of the four elements. However, the plaintiff failed to establish the fourth element, namely, justifiable reliance on the affirmative undertaking. The court reasoned that plaintiff could not reasonably rely on any protection by the police department. It also ruled as a matter of law that once her husband was released from prison, she was not relying on their assistance because (1) she was aware that her husband was at large and in the community; (2) the police were powerless to take any action against him unless he violated the order or committed some crime; and (3) plaintiff could not expect any police protection, other than their intermittent efforts to "keep an eye on her." The decision basically states that protective orders are not meant to be trusted. Implicit in the decision is the assumption that there is simply no way that police departments can provide the manpower to prevent these type of assaults.

In Escribano v. Town of Haverstraw, 303 A.D.2d 621, 757 N.Y.S.2d 310 (Second Dept., 2003), a father driving a car with his son as a passenger was observed swerving on the road by a Haverstraw police officer who stopped the father who was having diabetic shock symptoms and issued him a ticket for a seatbelt violation. The father continued his journey and shortly after crashed his car killing his son. Plaintiff's decedent claimed that the officer knew or should have known he was having a diabetic attack and should have prevented him from continuing. The case is dismissed on motion and affirmed since there was no special relationship under the "Cuffy" rule. There was no showing that the police officer assumed a duty to treat or diagnose a medical condition or to act on the father's behalf.

E. Special Duty Was Found In These Cases:

In Johnson City Central School District v. Fidelity and Deposit Company of Maryland, 272 A.D.2d 818, 709 N.Y.S.2d 225 (Third Dept., 2000), the defendant village's fire department was assisting plaintiff in the removal of snow and ice from the roofs of two of plaintiff's vehicle maintenance buildings. During the snow and ice removal operation, which included the fire department's participation in spraying high pressure water onto the roofs, one of the buildings partially collapsed and the other building completely collapsed. The village argued, of course, that it had not assumed any special duty. However, the court held that this activity was not undertaken for the protection and safety of the public, but was undertaken pursuant to the village's agreement with the plaintiff to assist in maintaining its buildings by providing fire department equipment and personnel to remove snow and ice from the roofs. As such, the defense was rejected and the village assumed a special duty.

A special duty was also found in Persaud v. City of New York, 267 A.D.2d 220, 699 N.Y.S.2d 481 (Second Dept., 1999) where the plaintiff left her 19 year old daughter sitting in the passenger seat of her car which was parked in a no standing zone. The daughter did not have a driver's license and did not know how to drive. Defendant police officer saw the car, waved the plaintiff's daughter to move it, and, according to the daughter, "kept waving" until such point as the daughter felt compelled to slip into the driver's seat, start the engine, and move the car. When she did so, she struck her mother. It was held that once the police officer undertook to direct the daughter to move the car, he was obligated to do so with due care. Accordingly, the plaintiffs were not required to demonstrate a special relationship (699 N.Y.S.2d at 482). The court further held that "liability can be imposed upon a police officer for negligently directing a citizen to move a vehicle" and plaintiff here "submitted an affidavit from an expert stating that the defendant police officer deviated from standard police practice in directing a person sitting in the passenger seat to move the car, without inquiring as to whether she was licensed to drive." Therefore, there was an issue of fact which precluded summary judgment.

In Persaud v. City of New York, (II), 307 A.D.2d 346, 762 N.Y.S.2d 641 (Second Dept., 2003), after trial in which plaintiff adduced an expert who opined that the police officer should have inquired of the daughter as to her ability to drive, a $10 million verdict was rendered. This, the Appellate Division now dismisses against the City and the police officer and reduces the verdict as against the owner and driver to $5 million. The case is dismissed against the City and police officer on the basis that the expert's opinion was overwhelmingly contradicted by the evidence at trial relying on the training materials used by the police officers and the expert's opinion was deemed "speculative, unsupported, and of non-probative strength."

The above materials are reproduced with the permission of the New York State Trial Lawyers Institute, all rights reserved.

see also:

Injured at school NY lawyers: Lawsuit filed on behalf of student injured at school
Free case review and information on student injured at school

Special Duty Rule Special Duty Rule relates to a municipality's duty to protect plaintiff from third parties or from harmful forces
If you've been hurt by a city employee, you need a municipal liability lawyer to help.

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