It has long been the rule in New York State that in order to hold a municipality responsible for injuries that arise from its performance of a governmental function, a plaintiff had to establish the municipality owed to him or her a duty that went beyond the obligations it owes to society at large. In Ferreira v. City of Binghamton, the New York Court of Appeals reaffirmed that the Public Duty Rule applies with equal force, not only to situations where a municipality was unable to protect a plaintiff from harm allegedly caused by another, but also to circumstances where the government itself is allegedly the cause of an injury. 

Trial court sets verdict against City of Binghamton

The Ferreira matter came before the Court of Appeals as a certified question from the United States Court of Appeals for the Second Circuit.  The plaintiff was inside a house in the City of Binghamton when the police executed a “no-knock” warrant based on suspicion of drug activity in the home.  The plaintiff was asleep on a sofa in the living room and was shot by the entering SWAT team.  A civil jury determined that the police officer’s use of force was reasonable—there was conflicting testimony as to whether the plaintiff was holding a video game controller that appeared to the officer to be a weapon.  Nevertheless, the jury determined that the City was negligent in its planning and execution of the warrant. 

The trial court set aside the verdict against the City, finding that because the plaintiff’s injuries arose from the performance of a governmental function, he was required to establish a special duty was owed for his specific protection.  Additionally, the trial court determined that the governmental immunity defense barred these claims insofar as the plaintiff’s injury arose from the exercise of discretion in the performance of police work. 

Second Circuit reverses trial court

The Second Circuit reversed the trial court.  With respect to governmental immunity, the Court determined there was sufficient evidence presented at trial to support the jury’s determination that the City violated established police procedures and acceptable police practice by not conducting adequate pre-raid surveillance of the residence.  This amounts to a finding that the police did not exercise acceptable discretion and therefore could not avail themselves of the immunity that attaches to judgement calls made in the course of performing police work.  This aspect of the Second Circuit opinion was not referred to the Court of Appeals and was therefore not reviewed.  It has no bearing on the outcome, however.  Judge Singas reiterated the core principle that where injury arises from the performance of governmental functions, a plaintiff must establish a special duty, even where the alleged breach of duty is ‘ministerial’ and not the product of the exercise of discretion. 

With respect to the existence of a duty, the Second Circuit recognized that the majority of New York cases in this area arise from an alleged failure to protect a plaintiff from harm caused by a third party or source.  The Second Circuit labeled cases that impose a special duty in the face of harm caused by government agents as “conflicting guidance” that made it “impossible to discern” whether the Public Duty Rule should apply to bar the plaintiff’s recovery for injuries that allegedly arose from a negligently planned or executed warrant execution.  The Second Circuit certified this question to the Court of Appeals:

Does the ‘special duty’ requirement—that, to sustain liability in negligence against a municipality, the plaintiff must show that the duty breached is greater than that owed to the public generally—apply to claims of injury inflicted through municipal negligence, or does it apply only when the municipality’s negligence lies in its failure to protect the plaintiff from an injury inflicted other than by a municipal employee?

The answer, with two judges dissenting, is that in all instances where injury is allegedly the result of negligence in the performance of governmental functions, there will be no liability where a plaintiff was not covered by a special duty that is greater than the duty that government owes to society at large.  The Court of Appeals held that New York law does not support a distinction between whether the government caused or merely failed to prevent the harm.  Additionally, it found that such a distinction would be unworkable in practice and contrary to the policies the Public Duty Rule was founded upon. 

Public Duty Rule and governmental immunity

The decision recognizes that the Public Duty Rule fits with the related concept of Governmental Immunity.  These establish that governmental action, if discretionary, will never be the basis for liability, but governmental action that is not the product of the exercise of discretion, (i.e. a ‘ministerial’ failure), is actionable only where a plaintiff pleads and proves the existence of a special duty. 

Even within the subset of cases where an injury is the product of a ‘ministerial’ failure in the performance of a governmental function, a contrary holding and a rule that exempted cases where the government directly caused harm from the special duty requirement would have opened a gaping hole in the protections afforded to municipalities.  As the majority explained, the purpose of the special duty requirement is to circumscribe liability in recognition of the fact that government officials, not courts and juries, should decide how to allocate scarce resources; in this instance, how much pre-raid surveillance to conduct and how to plan for the execution of the warrant.  As the majority stated, the rule “is intended to ‘allocate[e] resources where they would most benefit the public’ and ensure that ‘the prime concern’ is not ‘the avoidance of tort liability’ but ‘the promotion of the public welfare.’” Citing O’Connor v. City of New York, 58 NY2d 184, 191 (1983). 

Rather, the Court of Appeals recognized that the Public Duty Rule adequately protects individuals where the government owes to them a duty that goes beyond the duty owed to the public at large.  A special duty will arise (1) where a municipality affirmatively assumes a duty to protect an individual that is reasonably relied upon by that person; (2) the plaintiff belonged to a class for whose benefit a statute was enacted; and (3) plaintiff was injured in a scenario where the municipality took positive control of a known and dangerous safety condition. 

Distilled to their essence, these species of special duty are better suited to determining when a plaintiff is entitled to protections that exceed those afforded to members of society in general than a bright line rule would.  By declining the invitation to carve an exception for cases where government is allegedly the cause of harm, the Court of Appeals has preserved a structure that protects municipalities while allowing compensation for plaintiffs where they demonstrate that government breached a duty owed specifically to them. 

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, New York City, Rochester, Saratoga Springs, Syracuse, Uniondale and White Plains, as well as Washington D.C., New Haven, Connecticut and Newark, New Jersey.