December 19, 2018

Determining the liability of a government entity for an alleged negligent performance of a governmental function

Determining the liability of a government entity for an alleged negligent performance of a governmental function
Wilson v New York City Bd. of Educ., 2018 NY Slip Op 08534, Appellate Division, Second Department

Judith Wilson, an elementary school principal, allegedly was injured when a 12-year-old student grabbed a cell phone from Wilson's hand. Wilson commenced this action to recover damages for personal injuries against the New York City Board of Education and the City of New York, [BOE] alleging that a school safety officer failed to adequately protect her. The critical issue to be determined in this action was the liability of the BOE for the injury suffered by Wilson. However, Supreme Court granted BOE's motion for summary judgment and Wilson appealed.

Sustaining the lower court ruling, the Appellate Division explained that a school district may not be held liable for the negligent performance of its governmental function of supervising children in its charge in the absence of a special duty to the person injured. The court then indicated that there are three ways in which a special relationship with a municipal defendant can be formed with teachers, administrators, or other adults on or off school premises: 

(1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons;

(2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or

(3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation" 

The Appellate Division further explained that with respect to a special relationship based upon a duty voluntarily assumed by the municipality, such a relationship requires proof of the following four elements:

(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 form of direct contact between the municipality's agents and the injured party; and

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

In addition, said the court, the "assurance" by the municipal defendant must be definite enough to generate justifiable reliance by [Wilson]" citing Dinardo v City of New York, 13 NY3d 872.

Ruling that the Board of Education established, prima facie, that it did not owe Wilson a special duty and that Wilson failed to raise a triable issue of fact, the Appellate Division said it agreed with the Supreme Court's determination granting BOE's motion for summary judgment dismissing Wilson's complaint.

The decision is posted on the Internet at:




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