In this article, Vito Cannavo Esq., a New York trial attorney experienced in premise liability litigation explains the special duty rule and how this provision can be applied in a municipal liability case.
By Vito A Cannavo, Esq.
Municipal defendants are prone to argue that they cannot be held liable for “governmental” conduct unless they owed a “special duty” of care. Yet, that is largely untrue. Most obviously, if the municipality affirmative causes harm (e.g., an on-duty police officer negligently shoots the plaintiff), liability may be imposed even absent any the “special duty” to provide police protection. Even absent that, a “special duty” is not prerequisite to recovery if the municipality’s conduct was “ministerial” in nature.
The starting point is that the State long ago waived sovereign immunity on behalf of both itself and its subdivisions. Florence v. Goldberg, 44 N.Y.2d 189, 194-195, 404 N.Y.S.2d 583, 586 (1978) (“By its waiver of governmental immunity … the State assumed liability for its conduct and consented to have such liability determined in accordance with the same rules of law applicable to individuals and corporations”); Steitz v. City of Beacon, 295 N.Y. 51, 54-55 (1945) (“The waiver of sovereign immunity … has rendered the defendant municipality liable, equally with individuals and private corporations, for the wrongs of its officers and employees. In each case, however, liability must be ‘determined in accordance with the same rules of law as applied to actions in the supreme court against individuals or corporations’”).
Yet, the bare fact that the State waived its sovereign immunity did not create duties of care where none existed before. Accordingly, it is not enough for a plaintiff who claims to have been injured as a consequence of municipal negligence to show that the State waived its immunity. Such a plaintiff must additionally show that the municipality owed her or him a duty of care, or, put differently, that a private entity would have owed a tort duty of care in like circumstances. Lauer v. City of New York, 95 N.Y.2d 95, 99-100, 711 N.Y.S.2d 112, 115 (2000).
Additionally, where the conduct in issue was both “governmental” and “discretionary” in nature, the municipality is “generally” not answerable for its negligence, even if a private person may have stood liable in like circumstances. Mon v. City of New York, 78 N.Y.2d 309, 313, 574 N.Y.S.2d 529, 532 (1991). In such circumstances, the plaintiff must demonstrate not merely that a private person would have owed a duty of care, but also that the municipality owed a “special duty” of care borne of a “special relationship” with the plaintiff. Kovit v. Hallums, 4 N.Y.3d 499, 504, 797 N.Y.S.2d 20, 21 (2005).
The Court of Appeals has defined the difference between “ministerial” conduct and “discretionary” conduct as follows:
“…the rule to be derived from the cases is that discretionary or quasi-judicial acts involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial acts envisions direct adherence to a governing rule or standard with a compulsory result.” Tango v. Tulevech, 61 N.Y.2d 34, 41, 471 N.Y.S.2d 73, 77 (1983)).
Yet, while the existence of a “special relationship” giving rise to a “special duty” may thus be a prerequisite for liability that allegedly arises from “discretionary” conduct, such is not so with respect to “ministerial” conduct. In the latter case, the plaintiff must establish that a legal duty was owed such that a private entity in similar circumstances would have owed a duty of care, but the plaintiff need not establish that a “special duty” was owed as well. See, e.g., Kovit v. Hallums, 4 N.Y.3d at 504, 197 N.Y.S.2d at 21 (“As we explained in Pelaez v. Seide … municipalities generally enjoy immunity from liability for discretionary activities they undertake through their agents, except when plaintiffs establish a ‘special relationship’”); Lauer, 95 N.Y.2d at 99, 711 N.Y.S.2d 115 (“ministerial acts – meaning conduct requiring adherence to a governing rule, with a compulsory result – may subject the municipal employer to liability for negligence”); Tango, 61 N.Y.2d at 40, 471 N.Y.S.2d at 76 (“when the [official] action is exclusively ministerial, the officer will be liable if it is otherwise tortious and not justifiable pursuant to statutory command”).
New York municipal liability lawyers should therefore know: there are situations in which a “special duty” is not prerequisite to recovery.