Governmental immunity as a defense in the event a government entity or a government officer or employee is named as a defendant in litigation
Waterman v City of Rochester, 2017 NY Slip Op 07048, Appellate Division, Fourth Department
The City of Rochester [Rochester*] moved for summary judgment dismissing the action brought by Henry J. Waterman, claiming "government immunity." Supreme Court denied Rochester's motion. Rochester appealed but the Appellate Division sustained the Supreme Court's ruling.
The Appellate Division said that the lower court had "properly denied" Rochester's motion for summary judgment dismissing the complaint as the Rochester defendants were not entitled to "governmental immunity." Governmental immunity, explained the court, is not triggered when a public employee, acting in the course of his or her employment, "commits an ordinary tort that anyone else might commit — for example, when the employee is negligent in driving [a vehicle]."
In contrast, public officers and employees,** may claim "qualified immunity," or, in some instances, absolute immunity, when named as a defendant in litigation alleging acts or omissions involving or related to the performance of their official duties.
The "Doctrine of Absolute Immunity" insulates certain public officials from civil lawsuits involving the performance of their official duties. Included among those protected by “absolute immunity” are legislators in connection with their legislative duties and judicial and quasi-judicial officers performing judicial or quasi-judicial functions.
The Doctrine of Qualified Immunity may be an available defense when public officers and employees are being sued unless it can be shown that “clearly established” law which a reasonable official or employee in his or her position would have, or should have, known was violated.***
As to a public employee claiming "qualified immunity" as a defense in the course of litigation, the claim of "Qualified Immunity” is typically subjected to a "two prong test applied to determine if a public official or employee is entitled to "qualified immunity" when he or she is sued."
The first prong of the test addresses the question: Has the petitioner “stated a cause of action.” If the answer is yes the court turns to the second prong of the test.
The first prong of the test addresses the question: Has the petitioner “stated a cause of action.” If the answer is yes the court turns to the second prong of the test.
The second prong of the test asks did the “[g]overnment official’s conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he [or she] is doing violates that right.”
* David J. Bagley, II, an employee of the City of Rochester, was named as a co-defendant in this action.
** Although not all public employees are public officers, except in rare situations all public officers are public employees.
*** Under certain circumstances an attorney in private practice employed by public entity for certain purposes may be eligible to claim a qualified immunity [see NYPPL at:
https://publicpersonnellaw.blogspot.com/2010/09/attorney-in-private-practice-employed.html].
The decision is posted on the Internet at:
*** Under certain circumstances an attorney in private practice employed by public entity for certain purposes may be eligible to claim a qualified immunity [see NYPPL at:
https://publicpersonnellaw.blogspot.com/2010/09/attorney-in-private-practice-employed.html].
The decision is posted on the Internet at: