Best Lawblog Contest for 2017 now being conducted by The Legal Institute

From now until
September 15th, 2017, Lawblog fans can nominate their favorite blogs and bloggers for inclusion in the voting round of 2017. As in previous years, the nomination process is competitive, meaning the more nominations a blog receives, the more likely it is to be included in the public voting stage of the contest.

To access the link to the nomination form, click on:

https://www.theexpertinstitute.com/blog-contest/?utm_source=email&utm_medium=email&utm_content=CTA&utm_campaign=blog-contest-8.14.2017-general

Monday, November 02, 2015

A governmental entity’s liability for alleged negligence is limited


A governmental entity’s liability for alleged negligence is limited
Guerrieri v New York City Dept./Bd. of Educ., 2015 NY Slip Op 07816, Appellate Division, Second Department

As a general rule, a governmental entity’s liability for alleged negligence may arise where the entity has a special duty or a special relationship to the plaintiff. Such a special duty can arise in three situations: (1) the plaintiff belonged to a class for whose benefit a statute was enacted; (2) the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally; or (3) the municipality took positive control of a known and dangerous safety condition. Further, the plaintiff has the burden of proving that the government defendant owed a special duty of care to the injured party because such a duty is an essential element of the negligence claim itself and in situations where the plaintiff fails to meet this burden, liability may not be imputed to the municipality that acted in a governmental capacity.

Thomas Guerrieri was employed as a school bus driver by an independent contractor that contracted with the New York City Department/Board of Education [BOE] to provide student transportation services.

Guerrieri was allegedly assaulted by one of the students he was transporting and sued BOE, among others, for damages for personal injury. Supreme Court granted BOE’s motion for summary judgment dismissing the complaint insofar as asserted against it and Guerrieri appealed.

Citing Garrett v Holiday Inns, 58 NY2d 253, the Appellate Division sustained the lower court’s ruling, explaining that "Liability for a claim that a municipality negligently exercised a governmental function turns upon the existence of a special duty to the injured person, in contrast to a general duty owed to the public." In contrast to a school district having a special duty to its students to adequately supervise them to prevent foreseeable injuries to fellow students, the court said that such a duty does not extend to adults.

Holding that BOE “demonstrated its prima facie entitlement to judgment as a matter of law” by establishing that it did not owe Guerrieri a special duty and Guerrieri’s failing to raise a triable issue of fact, the Appellate Division said that Supreme Court properly granted BOE’s motion for summary judgment “dismissing the complaint insofar as asserted against it.”

Dinardo v City of New York, 13 NY3d 872, provides another illustration of the proof of a “special duty” that a plaintiff is required to demonstrate.

Zelinda Dinardo, a special education teacher at a New York City public school, was injured when she tried to restrain one student from attacking another. The student had been orally and physically aggressive for several months and Dinardo had repeatedly expressed concerns to her supervisors about her safety in the classroom. The school's supervisor of special education and the principal had both told Dinardo that "things were being worked on, things were happening" and urged Dinardo to "hang in there because something was being done" to have the student removed.

Following her injury, Dinardo commenced an action alleging, among other things, that by the assurances given to her by her supervisor and her principal, the Board of Education of the City of New York had assumed an affirmative duty to take action with respect to the removal of the student and that she justifiably relied upon those assurances. When the student was not removed in a timely fashion, Dinardo alleged, the altercation which led to her injury resulted.

In the words of the Dinardo court, “Affording Dinardo every inference that may properly be drawn from the evidence presented and considering the evidence in a light most favorable to her (see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]), we conclude that there is no rational process by which the jury could have reached a finding that [Dinardo] justifiably relied on assurances by the Board of Education. The vaguely worded statements by Dinardo's supervisor and principal that 'something' was being done to have the student removed, without any indication of when, or if, such relief would come, do not, as a matter of law, constitute an action that would lull a plaintiff into a false sense of security or otherwise generate justifiable reliance. Indeed, [Dinardo] was aware that the administrative process for determining whether a student should transfer to a different program or school could take up to 60 days and was still ongoing when the incident occurred. There was therefore no "special relationship" between the Board of Education and [Dinardo] (see Cuffy, 69 NY2d at 259), upon which a cause of action for negligence could be based, and the Board of Education is entitled to judgment as a matter of law.”

The decision is posted on the Internet at:

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

Caution:

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.

THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.

Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material in this blog is presented with the understanding that the publisher is not providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader should seek such advice from a competent professional.

Items published in NYPPL may not be used for commercial purposes without prior written permission to copy and distribute such material. Send your request via e-mail to publications@nycap.rr.com

Copyright© 1987 - 2017 by the Public Employment Law Press.



___________________



N.B. From time to time a political ad or endorsement may appear in the sidebar of this Blog. NYPPL does not have any control over such posting.

_____________________

.