The United State Circuit Court of Appeals, Second Circuit, opining that New
York law offered "conflicting guidance" on
the issue, certified the following question to New
York State's 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 New York State Court of Appeals accepted the question. Its answer, by Judge Madeline Singas writing for the majority, Judge
Rowan D. Wilson, dissenting, is set out in Ferreira v City of Binghamton, 2022 NY Slip Op 01953, decided on March 22, 2022. The full text of the ruling is set out below.
In short, the Court ruled that it "never affirmatively held that a plaintiff need not
establish a special duty when stating a negligence cause of action against a
municipality for acts occurring when the municipality was engaged in a
governmental function." To do in this instance, said the Court of Appeals, would require it "to depart from precedent" and
require it to assume that the cases upon which plaintiff in his federal action relies held, by
implication, that no special duty is required in the respective factual
scenarios based on what was omitted from the Court's opinions and this, said the Court of Appeals, it declined to do.
Jesus Ferreira, Appellant,
v
City of Binghamton et al., Respondents.
Robert Genis, for appellant.
Brian S. Sokoloff, for respondents.
New York Civil Liberties Union; New York State Academy of Trial Lawyers; New
York State Conference of Mayors and Municipal Officials et al.; New York City
Bar Association; New York County Lawyers Association et al.; City of New York;
New York State Trial Lawyers Association, amici
curiae.
SINGAS, J.
The United States Court of Appeals for the Second Circuit has inquired
whether New York's " 'special duty' requirement" applies "to
claims of injury inflicted through municipal negligence" or if it applies
only to claims premised upon a municipality's negligent "failure to
protect the plaintiff from an injury inflicted other than by a municipal
employee" (975 F3d 255, 291 [2d Cir 2020]). Consistent with our precedent
and the purpose of the special duty rule, we reiterate that plaintiffs must
establish that a municipality owed them a special duty when they assert a
negligence claim based on actions taken by a municipality acting in a
governmental capacity. We further clarify that plaintiffs may establish a
special duty when a municipality, acting through its police force, plans and
executes a no-knock search warrant at a person's home, and that such a duty
runs to the individuals within the targeted premises at the time the warrant is
executed.
I.
In August 2011, a police officer employed by defendant Binghamton Police
Department obtained information that Michael Pride, an alleged armed and
dangerous felony suspect, resided at a certain apartment in that city. On August 24, 2011, the police obtained
a no-knock search warrant for the residence [FN1].
That night, police officers surveilled the residence for approximately one
hour, confirming Pride's connection with the apartment identified in the
warrant. The officers observed Pride and another man in front of the residence
engage in activity consistent with a drug transaction. Later, they saw Pride
leave the residence. The police never saw Pride return to the apartment, and
they did not conduct additional surveillance.
Because the police believed that Pride was dangerous, a heavily-armed SWAT
team conducted a dynamic entry into the residence early the next morning to
execute the search warrant. A dynamic entry uses speed and surprise to gain an
advantage before occupants have time to access weapons, destroy evidence, or
resist the police. The team had difficulty entering and had to strike the door
repeatedly before it opened. After breaching the door, defendant Police Officer
Kevin Miller led the SWAT team into the apartment. Upon entry, Miller
encountered plaintiff, who had slept on the living room couch near the front
door. Plaintiff and Miller gave different accounts of what happened next, but
it is undisputed that Miller shot plaintiff, who was unarmed, in the stomach
and that plaintiff suffered serious injuries. Miller claimed that plaintiff
advanced towards him, and he mistook an Xbox controller in plaintiff's hand for
a handgun. Plaintiff maintained that he did not leave the couch, did not have
the controller in his hand, and Miller shot him as soon as the door opened.
Plaintiff commenced this action in federal court against, among others,
Miller, the police department, and the City of Binghamton
(the City). As relevant here, plaintiff asserted a state law negligence claim,
contending that the City breached a special duty [FN2]
. At trial, plaintiff alleged that the City was liable under a respondeat
superior theory for Miller's negligence in shooting plaintiff and for the
police department's negligence in planning the raid.
The jury found that Miller had not acted negligently and rendered a verdict
in his favor. However, the jury determined that the City was "liable for
negligence with respect to the incident . . . under a respondeat superior
theory" and awarded plaintiff $3 million in damages, with 90% apportioned
to the City.
Both plaintiff and the City moved for judgment as a matter of law or,
alternatively, a new trial. Plaintiff contended that the jury's verdict as to
Miller's liability and negligence was against the weight of the evidence and
should be set aside. The City argued, among other things, that there was no
evidence establishing that it owed a special duty to plaintiff and, in any
event, its liability was precluded by the governmental function immunity
defense.
As relevant here, the United States District Court for the Northern District
of New York denied plaintiff's motion and granted the City's motion for
judgment as a matter of law. In denying plaintiff's motion, the court
determined that a reasonable jury could have concluded that Miller's
"mistake and the shooting that resulted" did not violate any
applicable standard of care and hinged on a credibility determination best left
for the jury (US
Dist Ct, ND
NY, 3:13 CV 107, Sept. 27, 2017, McAvoy, Sr. J.).
Concerning the City's motion, the court concluded that New
York law required that plaintiff demonstrate that the
City owed him a special duty and no record evidence supported a special duty
here. The court noted that, in any event, the governmental function immunity
defense would bar plaintiff's claim against the City.
Upon plaintiff's appeal, the Second Circuit upheld the portion of the
district court order denying plaintiff's motion, explaining that "the jury
could reasonably conclude that Miller was not negligent in believing himself
threatened and shooting" plaintiff (975 F3d at 268). The issue of whether
Miller was negligent in shooting plaintiff was therefore resolved in the
federal courts and is not before us.
The Second Circuit next addressed the district court's grant of judgment as
a matter of law to the City. The court first determined that the governmental
function immunity defense did not protect the City from liability because
plaintiff had "elicited sufficient evidence to support a jury finding that
the City, through the actions of its employees in the police department and
SWAT unit, violated established police procedures and acceptable police
practice" by "failing to conduct adequate pre-raid surveillance of
the residence or gather other intelligence" (id. at 272).[FN3]
The court then turned to plaintiff's argument that "the special duty
requirement applies only in cases in which the allegedly negligent government
conduct is the failure to protect from or respond adequately to a separately
imposed injury, but does not apply where the negligent conduct alleged involves
the municipal government's own infliction of injury" (id. at 282).
According to the Second Circuit, New York
law offered "conflicting guidance" on the issue, making it
"impossible to discern" whether plaintiff was required to establish a
special duty (id.). The Second Circuit therefore certified a question to
this Court:
"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?" (Id.
at 291).
We accepted the question (see 35 NY3d 1105 [2020]).
II.
New York waived its immunity
from liability in 1929 when it enacted Court of Claims Act former §12-a, now §8
(see Bernardine v City of New York,
294 NY 361, 365 [1945]). The State's immunity waiver applies equally to its
municipal subdivisions, including cities (see Valdez v City of New York, 18 NY3d 69, 75
[2011]; Florence v
Goldberg, 44 NY2d 189, 195 [1978]). By this waiver, "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," thereby opening the door to negligence claims against
municipal actors (Florence,
44 NY2d at 194-195). Nevertheless, "other recognized limitations still
govern the tort liability of municipal officers" (Tango v Tulevech,
61 NY2d 34, 40 [1983]), and governmental defendants "unquestionably
continue to enjoy . . . a significant measure of immunity" (Haddock v
City of New York, 75
NY2d 478, 484 [1990]; see Connolly v Long Is. Power Auth., 30 NY3d 719,
726-727 [2018]).
In any common-law negligence case brought pursuant to New York law, "a
plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff,
(2) a breach thereof, and (3) injury proximately resulting therefrom" (Solomon
v City of New York, 66 NY2d 1026, 1027 [1985]). Thus, a threshold issue
that the court must resolve "is whether the defendant owed a legally
recognized duty to the plaintiff" (Gilson v Metropolitan Opera, 5 NY3d 574, 576 [2005];
see Lauer v City of New York,
95 NY2d 95, 100 [2000]). A negligence claim against a municipality implicates a
"complex area of the law" that has caused some "confusion
concerning the relationship between the special duty rule (establishing a tort
duty of care) and the governmental function immunity defense (affording a full
defense for discretionary acts, even when all elements of the negligence claim
have been established)" (Valdez, 18 NY3d at 77-78). This Court has
therefore adhered to a conceptual framework to analyze the special duty and
governmental function immunity doctrines when both issues are presented in a
given case.
As we have explained previously, a court must first decide "whether the
municipal entity was engaged in a proprietary function or acted in a
governmental capacity at the time the claim arose" (Applewhite v
Accuhealth, Inc., 21 NY3d 420, 425 [2013]; see Tara N.P. v Western Suffolk Bd. of Coop. Educ. Servs.,
28 NY3d 709, 713 [2017]). "This is so because, if the action
challenged in the litigation is governmental, the existence of a special duty
is an element of the plaintiff's negligence cause of action" (Connolly,
30 NY3d at 727, citing Lauer, 95 NY2d 95). A municipality's "varied
functions" may be "interspersed with both governmental and proprietary
elements" and, therefore, "the determination of the primary capacity
under which a governmental agency was acting turns solely on the acts or
omissions claimed to have caused the injury" (Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428,
447 [2011], cert denied 568 US 817 [2012]).
"A government entity performs a purely proprietary role when its
activities essentially substitute for or supplement traditionally private
enterprises" (Applewhite, 21 NY3d at 425 [internal quotation marks
and citation omitted]), such as when a government entity acts as a landlord (see
Miller v State of New York,
62 NY2d 506, 511 [1984]). Conversely, "a municipality will be deemed to
have been engaged in a governmental function when its acts are undertaken for
the protection and safety of the public pursuant to the general police
powers" (Applewhite, 21 NY3d at 425 [internal quotation marks and
citation omitted]). Examples of governmental functions include fire protection
services, the oversight of juvenile delinquents, the issuance of building
permits or certificates of occupancy, garbage collection, and the provision of
front-line emergency medical services (see id. at 425-426, 430). As
particularly relevant here, policing is a "long-recognized, quintessential
governmental function[ ]" (id. at 425; see Valdez, 18 NY3d
at 75), and there is no dispute that the specific act alleged to have caused
the injury here—the planning and execution of a no-knock warrant—is a
governmental function.
We have also explained previously that "[i]f the municipality's actions
fall in the proprietary realm, it is subject to suit under the ordinary rules
of negligence applicable to nongovernmental parties" (Applewhite,
21 NY3d at 425; see Tara N.P., 28 NY3d at 713). In that instance,
"the State is held to the same duty of care as private individuals and
institutions engaging in the same activity," consistent with the State's
sovereign immunity waiver (Schrempf v State of New York, 66 NY2d 289,
294 [1985]). However, where a municipality is exercising a governmental
function—i.e., undertaking functions or services that are not typically
provided by private actors—the duty question is more complicated, with
"the next inquiry focus[ing] on the extent to which the municipality owed
a 'special duty' to the injured party" (Applewhite, 21 NY3d at 426;
see Tara N.P., 28 NY3d at 714).[FN4]
Under the public duty rule, a municipality owes a general duty to the
public, but it does not owe "a duty of care running to a specific
individual sufficient to support a negligence claim, unless the facts
demonstrate that a special duty was created" (Valdez,
18 NY3d at 75; see Florence,
44 NY2d at 195-196). The special duty doctrine thus developed "to
rationally limit the class of citizens to whom the municipality owes a duty of
protection" (Kircher v City of Jamestown, 74 NY2d 251, 258 [1989]).
"The core principle is that to 'sustain liability against a municipality
[engaged in a governmental function], the duty breached must be more than that
owed the public generally' " (Applewhite, 21 NY3d at 426, quoting Valdez,
18 NY3d at 75; see Lauer, 95 NY2d at 100). To that end, we have
"consistently refused to impose liability for a municipality in performing
a public function absent a duty to use due care for the benefit of particular
persons or classes of persons" (Lauer, 95 NY2d at 101 [internal quotation
marks and citation omitted]). That is not to say that a negligence claim may
never lie against a municipal defendant for acts undertaken in its governmental
capacity. Rather, this Court has recognized that a special duty exists in
"a narrow class of cases" where the plaintiff establishes a duty on
the part of the municipal defendant running to the plaintiff (Cuffy v City
of New York, 69 NY2d 255, 260 [1987]; see Sorichetti v City of New York,
65 NY2d 461, 468 [1985] [a special duty arises in "extraordinary
instances"]).
More specifically, this Court has "recognized that 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" (Applewhite,
21 NY3d at 426).
Where the claimed negligent acts or omissions involved a
governmental function, "[i]t is the plaintiff's obligation to prove that
the government defendant owed a special duty of care to the injured party
because duty is an essential element of the negligence claim itself" (id.).
"In situations where the plaintiff fails to meet this burden, the analysis
ends and liability may not be imputed to the municipality that acted in a
governmental capacity" (id.; see Tara N.P., 28 NY3d at 714).
Thus, where there is no special duty "courts will not examine the
'reasonableness' of the municipality's actions" (Sorichetti, 65
NY2d at 468).[FN5]
"Even if a plaintiff satisfies" their burden of demonstrating that
a special duty exists, "a municipality acting in a discretionary
governmental capacity may rely on the 'governmental function immunity defense,'
" an affirmative defense that must be pleaded and proven by the
municipality (Turturro v City of New York, 28 NY3d 469, 478
[2016], quoting Valdez, 18
NY3d at 75). "The doctrine of governmental function immunity 'reflects
separation of powers principles and is intended to ensure that public servants
are free to exercise their decision-making authority without interference from
the courts' " (Connolly, 30 NY3d at 727, quoting Valdez, 18
NY3d at 76). The doctrine represents "a value judgment that—despite injury to a member of
the public—the broader interest in having government officers and employees
free to exercise judgment and discretion in their official functions,
unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the
benefits to be had from imposing liability for that injury" (Haddock,
75 NY2d at 484; see Valdez, 18 NY3d at 76).
The governmental function immunity defense "provides immunity for the
exercise of discretionary authority during the performance of a governmental
function" (Turturro, 28 NY3d at 479). Thus, "even if a
plaintiff establishes all elements of a negligence claim, a state or municipal
defendant engaging in a governmental function can avoid liability if it timely
raises the defense and proves that the alleged negligent act or omission
involved the exercise of discretionary authority" (Valdez, 18 NY3d
at 76; see Haddock, 75 NY2d at 484). The "defense cannot
attach," however, "unless the municipal defendant establishes that
the discretion possessed by its employees was in fact exercised in relation to
the conduct on which liability is predicated" (Valdez, 18 NY3d at
76; see McLean v City of New York, 12 NY3d 194, 203
[2009]). As we have previously clarified, when both the special duty
requirement and the governmental function immunity defense are asserted in a
negligence case, "the rule that emerges is that '[g]overnment action, if
discretionary, may not be a basis for liability, while ministerial actions may
be, but only if they violate a special duty owed to the plaintiff, apart from
any duty to the public in general' " (Valdez, 18 NY3d at 76-77,
quoting McLean, 12 NY3d at 203). As discussed, the Second Circuit
conducted its own analysis concerning governmental function immunity, and has
not asked us to opine on this aspect of their ruling.
III.
Plaintiff argues that a special duty is required only in cases where the
municipality allegedly fails to protect a plaintiff from or respond adequately
to injury inflicted by a non-governmental third party. As a result, plaintiff
argues, the special duty rule does not apply where a municipal employee
inflicts the injury in question. We have never limited the requirement to
establish a special duty in the manner advanced by plaintiff, and we decline to
do so now. Such a rule—purporting to draw a distinction between those
negligence claims alleging injuries inflicted by municipal actors and those in
which the injury is alleged to be inflicted by a nongovernmental actor—is
belied by our precedent, unworkable, and contrary to the public policies upon
which the special duty requirement is founded.
As discussed, where a plaintiff seeks to demonstrate a special duty, this
Court has recognized three avenues to do so. The second route, showing a
municipality's voluntary assumption of a duty, is the most litigated and, thus,
dominates this Court's case law. This issue often arises in the context of a
claim that the police failed to protect the plaintiff from injury inflicted by
a third party after voluntarily assuming a duty to do so. A plaintiff must
establish four elements to show a "special relationship" giving rise
to a voluntarily assumed duty (Tara N.P., 28 NY3d at 714):
"(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" (Cuffy, 69
NY2d at 260; see Tara N.P., 28 NY3d at 714-715).
It is undisputed that the special duty rule applies where
non-governmental third parties directly inflicted plaintiff's injury, including
in the police protection context (see e.g. Valdez, 18 NY3d at 72; Cuffy,
69 NY2d at 258; Sorichetti, 65 NY2d at 468; see also McLean, 12
NY3d at 204 [requiring the plaintiff to establish a special duty where she
claimed that the municipality acted negligently in failing to protect an infant
from injury caused by a private day care provider licensed by the
municipality]).
However, we have never limited the special duty rule to instances in which
it is alleged that a non-governmental third party directly inflicted the harm.
Instead, we have applied the special duty rule where a party asserts a
negligence claim against a municipality acting in its governmental capacity,
regardless of who most immediately inflicted the injury. We reiterate the
special duty rule's core principle as stated in Lauer: "[t]o
sustain liability against a municipality, the duty breached must be more than
that owed the public generally" (95 NY2d at 100; see Connolly, 30
NY3d at 727; Florence, 44
NY2d at 195). In other words, "an agency of government is not liable for
the negligent performance of a governmental function unless there existed 'a
special duty to the injured person, in contrast to a general duty owed to the
public' " (McLean, 12 NY3d at 199, quoting Garrett v Holiday
Inns, 58 NY2d 253, 261 [1983]). That is, whenever "an individual seeks
recovery out of the public purse" for acts taken in a governmental
capacity (Lauer, 95 NY2d at 100), "[i]t is the plaintiff's
obligation to prove that the government defendant owed a special duty of care to
the injured party because duty is an essential element of the negligence claim
itself" (Applewhite, 21 NY3d at 426). The requirement that a
plaintiff establish a special duty when stating a negligence claim against a
municipality acting in a governmental capacity reinforces these
principles—despite the dissent's assertion that we are adopting a "novel
proposition" (dissenting op at 20).
Lauer makes this point in no uncertain terms, directly contradicting
plaintiff's attempt to limit the special duty requirement. In Lauer, the
medical examiner, a municipal employee, erroneously determined at first that a
child's death was a homicide, but later concluded that he actually died of
natural causes. The medical examiner "failed to correct the autopsy report
or death certificate, and failed to notify law enforcement authorities,"
who were investigating the child's father for the homicide (95 NY2d at 98).
After the autopsy report was corrected and the police investigation ended, the
father sought damages for the harm allegedly caused by the medical examiner's
negligence. We dismissed the complaint, concluding that the father failed to
establish that the medical examiner owed him a special duty beyond that owed to
the public at large (see id. at 102, 105). Thus, in Lauer, we
applied the special duty rule even though it was the acts of the municipally
employed medical examiner, not a third-party, that allegedly caused the
father's injury.[FN6]
Any suggestion that prior cases dispensed with the special duty rule when
the municipality in question directly inflicted the alleged harm is incorrect.
As the Second Circuit recognized, we resolved both Johnson v City of New York (15 NY3d 676 [2010]) and Mon
v City of New York (78
NY2d 309 [1991]) by applying the governmental function immunity doctrine (see
975 F3d at 285 n 11) and, thus, it was unnecessary to address whether the
plaintiff had established a special duty. Similarly, "we did not address
the question of special duty in Haddock" (Tara N.P., 28 NY3d
at 716 n), where the issue was whether the municipality could "be held
liable . . . for negligent retention" of the employee "or whether it
[was] immune from liability" (Haddock, 75 NY2d at 483). We
concluded that the municipality "was properly held liable for [a] child's
injuries" because there was no evidence that the municipality
"exercised any . . . discretion" that would have made the
governmental function immunity defense applicable (id. at 480, 485). We
likewise did not address whether the plaintiffs established a special duty in
the other cases upon which plaintiff relies, as the issue was not raised (see
McCummings v New York City Tr. Auth., 81 NY2d 923, 925 [1993], cert
denied 510 US 991 [1993]; Meistinsky v City of New York, 309 NY 998,
1000 [1956], affg 285 App Div 1153 [2d Dept 1955]; Flamer v City of
Yonkers, 309 NY 114, 119 [1955]; Wilkes v City of New York, 308 NY
726, 728 [1954], affg 283 App Div 724 [2d Dept 1954]).
Cases like Haddock, Johnson, and Mon, which addressed
only governmental function immunity, cannot reasonably be interpreted to cast
aside the special duty rule. The same is true for cases like McCummings,
Meistinsky, Flamer, and Wilkes, which likewise did not
address special duty in any regard and were decided prior to this Court's
subsequent refinement of the special duty rule in Lauer and Valdez.[FN7]
In short, we have never affirmatively held that a plaintiff need not
establish a special duty when stating a negligence cause of action against a
municipality for acts occurring when the municipality was engaged in a
governmental function. To do so here would depart from our precedent and
require us to assume that the cases upon which plaintiff relies held, by
implication, that no special duty was required in the respective factual
scenarios based on what was omitted from our opinions. This we decline to do.
Other factors support our conclusion. First, plaintiff's proposed rule is
unworkable as a practical matter. Duty and causation are separate elements of a
negligence cause of action, but plaintiff urges us to improperly merge those
elements by looking to the purported cause of the injury to determine whether
the municipality owed a duty. In every instance in which a municipality is
alleged to be liable for negligence—whether it be a failure to protect or
respond or a situation in which the municipal actor more directly inflicted an
injury—there must necessarily be a claim that the municipality caused the
injury, at least in part. Given that there are often multiple causes of an
injury, a rule tying the special duty pleading requirement to who caused the
injury in question is untenable.
Further, as we have explained, "our precedent does not differentiate
between misfeasance and nonfeasance, and such a distinction is irrelevant to
the special duty analysis" (Applewhite, 21 NY3d at 426 n 1). In
part, this is because "the line between misfeasance and nonfeasance is
difficult to draw" (Eaves Brooks Costume Co. v Y.B.H. Realty Corp.,
76 NY2d 220, 226 [1990]). The rule advanced by plaintiff requiring a
distinction between affirmatively inflicted injuries and those occasioned by a
failure to adequately respond or protect far too closely resembles the
misfeasance versus nonfeasance distinction we have rejected. Adopting
plaintiff's rule would produce inconsistent applications of the special duty
requirement and a muddied pleading standard, leading to confusion and arbitrary
outcomes.
Moreover, our conclusion that the special duty requirement applies to all
negligence actions against a governmental defendant is consistent with the
public policies upon which the special duty requirement is founded. Of course,
the special duty rule is intended, in part, to ensure that municipalities do
not become insurers for the injurious conduct of third parties (see Valdez,
18 NY3d at 75). More generally, however, the special duty rule is grounded in
separation of powers concerns and a recognition that executive agencies, not
the courts and juries, have the primary responsibility to determine the proper
allocation of government resources and services (see O'Connor v City of New
York, 58 NY2d 184, 191 [1983]). Indeed, the special duty rule minimizes a
municipality's exposure to "open-ended liability of enormous proportions
and with no clear outer limits," which could otherwise "discourage
municipalities from undertaking activities to promote the general welfare"
that may expose them to liability (id.; see McLean,
12 NY3d at 204). The special duty rule does not, and has never been understood
to, "expand[ ] the circumstances in which governmental entities can be
held liable in negligence" as the dissent would have it (dissenting op at
6). Rather, it is intended to allow municipalities to "allocat[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" (O'Connor,
58 NY2d at 191). These concerns are no less implicated where an injury is more
immediately inflicted through acts taken by a municipal defendant.
Finally, our conclusion that the special duty requirement applies to all
claims against municipal actors does not obviate the State's waiver of
sovereign immunity. Instead, it simply requires the establishment of a duty, as
is required for all negligence claims, while accounting for the unique
considerations that are at play when the defendants are municipal actors
undertaking governmental functions (see generally Florence,
44 NY2d at 195).
IV.
Our precedent dictates that a plaintiff must establish a special duty when
suing a municipality in negligence. However, because the underlying premise of
the certified question appears to be that a special duty could not be
established in a scenario like the one presented, we take this opportunity to
clarify that this is not the case: a special duty may be established where the
police plan and execute a no-knock search warrant on a targeted residence [FN8].
Although we have not yet had an occasion to address application of the special
duty rule to the execution of no-knock search warrants, that situation fits
within the existing parameters of our special duty precedent.
Smullen v City of New York
(28 NY2d 66 [1971]) is the prototypical case for the third manner of
establishing a special duty, where the municipality takes positive control of a
known and dangerous safety condition. There, we determined that a special duty
could be established where a municipal inspector on a work site informed the
decedent that a trench did not need to shored just before it collapsed, killing
the decedent. We explained that the municipality had "actual knowledge of
the dangerous condition," the authority to halt work on the trench, the
inspector was the only person in authority then present, and the inspector took
"positive action in assuming direction and control" over the
dangerous situation of the inspector's own making (id. at 71, 72; compare
O'Connor, 58 NY2d at 191).
Consistent with our approach in Smullen, when police plan and execute
a no-knock search warrant, they effectively take control of the targeted
premises, knowingly creating an unpredictable and potentially dangerous
condition at a particular premises. The police decide when, where, and how to execute
the warrant, often proceeding with a dynamic entry which typically involves
several heavily armed police officers breaching a door in a show of force that
is intended to surprise unsuspecting occupants of the premises. These types of
raids are often conducted in the early-morning hours to catch people off-guard,
thereby minimizing the risk of destruction of evidence and danger to the life
and safety of the police and residents.
The execution of a no-knock warrant is a charged and volatile situation undertaken
at the direction and supervision of municipal actors, who plan and execute the
warrant and who can reasonably foresee and take steps to avoid many of the
risks occasioned by uncertain reactions to chaotic events when the police
forcefully cross the threshold of someone's home. In a no-knock warrant
situation, the police exercise extraordinary governmental power to intrude upon
the sanctity of the home and take temporary control of the premises and its
occupants. In such circumstances, the police direct and control a known and
dangerous condition, effectively taking command of the premises and temporarily
detaining occupants of the targeted location. As a result, the municipality's
duty to the individuals in the targeted premises, a limited class of potential
plaintiffs, exceeds the duty the municipality owes to the members of the
general public. A special duty therefore arises when the police plan and
execute a no-knock search warrant at an identified residence, running to the
individuals within the targeted premises at the time the warrant is executed.
In other words, in those circumstances, the police take positive control of a
known and dangerous condition, creating a special duty under the third
situation recognized by this Court.
Accordingly, the certified question should be answered in accordance with
this opinion.
WILSON, J. (dissenting):
The Second Circuit certified the following question to this Court:
"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?" (Ferreira
v City of Binghamton, 975 F3d 255, 291 [2d Cir. 2020]).
The majority holds that officers who plan and execute a no-knock search
warrant owe a "special duty" to the individuals in the targeted
premises. My answer is different: such officers have a duty—not a special
duty—to plan and execute the no-knock search warrant in a manner reasonable
under the circumstances to avoid foreseeable harm. As the majority recognizes,
when New York waived its sovereign immunity (and that of its municipal
subdivisions), it "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" (majority op at 6, quoting
Florence v Goldberg, 44 NY2d 189, 195 [1978] [emphasis added]; see
also Bernardine v New York, 294 NY 361, 365 [1945] ["the civil
divisions of the State are answerable equally with individuals and private
corporations for wrongs of officers and employees"]).
The majority's principal error, which infects its entire analysis, is
embodied in the following statement: "Consistent with our precedent and
the purpose of the special duty rule, we reiterate that plaintiffs must
establish that a municipality owed them a special duty when they assert a
negligence claim based on actions taken by a municipality acting in a
governmental capacity" (majority op at 2). That statement: (1) is not
consistent with our precedent, in which we have repeatedly evaluated negligence
claims against governmental actors by asking whether an ordinary duty exists;
and (2) improperly incorporates the governmental/proprietary distinction from
immunity law into negligence law (see Motyka v Amsterdam, 15 NY2d 134, 138
[1965] ["just as it is necessary to sustain an action against an
individual or private corporation to ascertain whether it is under a duty to a
plaintiff, so, also, it is necessary to decide whether a city or other civil
subdivision or municipal corporation is under a duty to a plaintiff
irrespective of sovereign immunity"]).
Our numerous precedents—spanning well over a century—establish that
municipalities can owe an ordinary duty of care to individual members of
the public. It is only when a plaintiff cannot demonstrate the existence of an
ordinary duty breached by a governmental actor that the "special
duty" doctrine comes into play. That is, the "special duty"
doctrine is not a contraction of the circumstances under which a plaintiff
could establish a claim for negligence; it is, as its name suggests, an
expansion that allows a claim of negligence to proceed even when no ordinary
duty exists.
Often, recovery in actions where a plaintiff has properly pleaded or proved
a claim of negligence against a governmental actor will be blocked by
governmental function immunity, but that is not a reason to incorporate
immunity-related concepts into the law of negligence: that law is the same
whether the actor is private or public.[FN9]
I
Whether the actor is public or private, negligence requires the same
elements of proof. To establish a claim of negligence, a plaintiff must prove:
(1) a duty owed to the plaintiff by the defendant, (2) a breach of that duty,
and (3) an injury that is the proximate result of the breach (Pasternack v
Laboratory Corp. of America Holdings, 27 NY3d 818, 825 [2016]; Solomon
by Solomon v City of New York, 66 NY2d 1026, 1027 [1985]; Akins v Glens
Falls City School Dist., 53 NY2d 325 [1981]). The first element—whether a
defendant owes a duty to a plaintiff—is an important threshold requirement for
negligence claims and is the sole element relevant to answering the certified
question.
To determine whether a duty exists and the scope of a duty, we consider the
wrongfulness of the defendant's action or inaction and examine the plaintiff's
reasonable expectations of care owed by others (Turcotte v Fell, 68 NY2d
432, 437 [1986]). Risk and foreseeability of an injury help determine whether a
duty exists. We have stated that a "risk reasonably to be perceived
defines the duty to be obeyed, and risk imports relation; it is risk to another
or others within the range of apprehension" (Palsgraf v Long Is. R.R.
Co., 248 NY 339, 344 [1928]). Accordingly, when someone "is by
circumstances placed in such a position with regard to another that every one
of ordinary sense . . . would at once recognize that if [the second person] did
not use ordinary care and skill in his own conduct with regard to the
circumstances he would cause danger of injury to the person or property of the
other, a duty arises to use ordinary care and skill to avoid such danger"
(Havas v Victory Paper Stock Co., 49 NY2d 381, 386 [1980], quoting
Heaven v Prender, 11 QBD 503, 509, Britt, MR [1883]). Logic, science, and
policy factor into our analysis of whether a duty exists (De Angelis v
Lutheran Med. Ctr., 58 NY2d 1053, 1055 [1983]).
When someone sues a governmental entity for negligence, the first inquiry is
whether the governmental entity owes an ordinary duty of care to the plaintiff.
As with any negligence claim, that ordinary duty depends on a plaintiff's
reasonable expectations and the foreseeability of injury to the plaintiff based
on the defendant's actions (see Turcotte, 68 NY2d at 437; Palsgraf,
248 NY at 344; Havas, 49 NY2d at 386). We have thus found an ordinary
duty of care was owed to an individual by a governmental defendant in numerous
and varied situations—for example where a city employee improperly screened by
a city agency sexually assaulted a person (Haddock v City of New York,
75 NY2d 478 [1990]); where governmental entities failed to maintain a highway
safely (Brown v State of N.Y., 31 NY3d 514 [2018]; Turner v Newburgh,
109 NY 301 [1888]); where a police officer shot and paralyzed a person who was
unarmed and running away from a robbery (McCummings v NYC Transit Auth.,
81 NY2d 923 [1993]); where an iron grate at a courthouse crushed a coal
deliveryperson (Galvin v. Mayor of New York, 112 NY 223 [1888]); where
police allegedly shot and killed someone who was intoxicated and not posing any
harm to the officers (Flamer v City of Yonkers, 309 NY 114 [1955]);
where a Board of Education negligently supervised a student who attacked
another student (Mirand v City of New York, 84 NY2d 44 [1994]); where a
runaway police horse injured a bystander (Bernardine, 294 NY 361); where
the state permitted an opening in the railing of a bridge, through which a
child fell and a father died attempting a rescue (Gibney v State, 137 NY
1 [1893]); where police shot and killed an innocent bystander being held up by
someone in a store (Meistinsky v City of New York, 309 NY 998 [1956]);
and "frequently" where state entities "breach[ed] [their] duty
to protect others from the acts of the mentally ill confined to State
institutions" (Williams v State, 308 NY 548, 549 [1955] [collecting
cases]). In those myriad instances, we held that governmental entities,
sometimes through police action, bore an ordinary duty of care. In none of
those cases did we suggest any "special duty" was involved, and in
many the facts would not have fit within any of the avenues available to
recognize a special duty.
If a plaintiff cannot prove an ordinary duty of care owed by a governmental
defendant, a plaintiff may nevertheless be able to maintain a negligence claim
by showing that the governmental defendant bore a "special duty"
running to that plaintiff. Governmental entities may assume a "special
duty" to a plaintiff by three avenues: first, where a plaintiff belongs to
a distinct class for whose benefit a statute was enacted; second, where a
governmental actor voluntarily assumes a duty to the plaintiff beyond what is
owed to the public generally;[FN10]
and third, where a governmental actor takes positive control of a known and
dangerous safety condition (Applewhite v Accuhealth, 21 NY3d 420, 426 [2013]).
Proving a "special duty" is not a requirement for all suits against a
governmental entity; instead, it is a means for some individuals to maintain
negligence claims when they are unable to prove an ordinary duty of care owed
by the governmental defendant. The "special duty" doctrine expands
the circumstances in which governmental entities can be held liable in
negligence even when the government owes no ordinary duty of care to the
plaintiff. The "special duty" is not, as the majority suggests, a
restrictive requirement that applies to all negligence suits against
governmental entities acting in a governmental capacity. Instead, it arises
where the governmental actor has, through its actions as to a specific, identifiable
individual, undertaken a duty it would not otherwise have (or, in a
circumstance not relevant here, the legislature has statutorily created a duty
for a defined class of persons). Thus, the doctrine is akin to the
"ancient" common-law rule (subsequently modified by good Samaritan
laws) that "one who assumes to act, even though gratuitously, may thereby
become subject to the duty of acting carefully" (Glanzer v
Shepard, 233 NY 236, 239 [1922]; see also Marks v Nambil Realty Co.,
245 NY 256 [1927]).
We have typically considered the "special duty" doctrine where a
municipality has failed to protect the plaintiff from harm caused by a third
party. The "special duty" inquiry can arise in such situations
because a general duty municipalities may have to protect the public does not
automatically give rise to an ordinary duty owed to a specific individual. In
several early cases, we concluded that the general obligation of a municipality
to provide water to residents does not create a duty sufficient to render
municipalities liable in negligence to owners of buildings that burned because
of a failure in the water supply (see, e.g., Steitz v Beacon, 295
NY 51 [1945]; H. R. Moch Co. v Rensselaer Water Co., 247 NY 160 [1928]).
Likewise, the fact that local governments are responsible for police and fire
services does not create a duty sufficient to support claims of negligence for
the failure of those services to prevent or minimize harm to individual members
of the public caused by a third party. The government is not meant to serve as
an insurer against harm individuals may suffer on part of third parties, a
proposition particularly relevant to the context of policing (Valdez v City of New York, 18 NY3d 69, 75 [2011]).
As we summarized in Riss v New York
(22 NY2d 579, 583 [1968]), "there is no warrant . . . for the courts, in
the absence of legislation, to carve out an area of tort liability for police
protection to members of the public. Quite distinguishable, of course, is the
situation where the police authorities undertake responsibilities to particular
members of the public and expose them, without adequate protection, to the
risks which then materialize into actual losses (Schuster v City of New York,
5 NY2d 75)". In a nutshell, then, the special duty doctrine typically
pertains, as the Second Circuit was "inclined to think" (975 F3d at
282), to acts by third parties where the plaintiff alleged that the government
failed to protect the plaintiff.
In situations like those above, where the provision of government services
is insufficient to support an ordinary duty necessary for a negligence claim to
proceed, we then have asked whether a special duty exists. Thus, we considered
whether a special duty arose where the police promised to staff a school
crosswalk and the child's parent relied on that promise (Florence v Goldberg,
44 NY2d 189, 195 [1978]); where the police assured a woman that they would
arrest her estranged boyfriend "immediately" (Valdez v City of New York, 18 NY3d 69, 72-73
[2011]); and where parents placed their child at a family daycare center in
reliance upon assurances from the city that the center was safe (McLean v City of New York, 12 NY3d 194, 197-202
[2009]). If municipalities had an ordinary duty—sufficient to support a claim
of negligence—to staff all school crosswalks, or arrest all threatening
boyfriends immediately, or refuse to license daycare facilities with
substantiated claims of abuse against them, no examination of any special duty
would have been required. Instead, because no ordinary duty sufficient to
support a claim of negligence could be imputed to those municipalities, only
then did we ask whether the plaintiffs' negligence claims could nevertheless
survive under any special duties assumed by or statutorily applicable to the
municipalities.
II
Because we have rendered numerous decisions in which governmental entities
were held liable under an ordinary standard of duty for injuries directly
caused by their own employees or agents, the majority cannot bypass whether Binghamton
owes an ordinary duty of care when planning and executing no-knock warrants.
The oddest part of the majority's opinion is that it firmly establishes the
existence of an ordinary duty of municipalities to use reasonable care
in planning and executing no-knock warrants. Turning to the three avenues under
which a special duty might exist, the first (statutory duty) and second
(promise to the plaintiff) are not relevant here; the majority rests on the
third (taking "positive control of a known and dangerous safety
condition"). But everything the majority recites as to the inherent danger
of no-knock search warrants more than suffices to establish an ordinary duty of
care under settled negligence doctrine. The majority's conclusions are not facts
based on the particulars of the no-knock warrant here; instead, they are
universally applicable to no-knock warrants (see majority op at 19).
Thus, where the special duty doctrine looks to the facts specific to the
plaintiff and defendant, here, the majority, though terming what it establishes
as a "special duty," in truth has established an ordinary duty of the
police to take reasonable care in planning and executing no-knock warrants.
The majority's description of the duty as running "to the individuals
in the targeted premises" would be dicta if meant to exclude others
within the foreseeable zone of danger from the police activity. Here, the
plaintiff was present inside the targeted premises, so the question as to
persons outside the premises but within the zone of danger is not presented.
However, depending on the means used in other no-knock warrant executions,
persons other than occupants of the premises may be among those to whom an
ordinary duty runs (e.g., residents of a neighboring apartment if bullets
travel through walls or if tear gas or concussion grenades start a fire). As we
have noted, one of the factors important in determining the existence and scope
of duty is "whether the plaintiff was within the zone of foreseeable
harm" (Di Ponzio v Riordan, 89 NY2d 578, 583 [1997]).
At least as applied to no-knock warrants, the difference between my view and
that of the majority may only be one of semantics: whether one calls the duty
"ordinary" or "special," it indisputably exists in such
situations and can form the basis for a negligence action against the police,
provided the remaining elements of a negligence claim are proven. The
difficulty from the majority's articulation comes not in the likely result in
this case, but in future cases in which the majority's decision may be
interpreted to bar any negligence claims against a governmental actor unless a
"special duty" is proved. One of two things will likely happen:
either legitimate claims of negligence will be barred by the majority's misinterpretation
of "special duty" here, or "special duty" will no longer
turn on individual facts, but will be applied categorically, as the majority
does here. As an example of the latter, many, but not all, of the factors
identified by the majority for the creation of a "special duty"
pertaining to no-knock warrants apply equally to ordinary warrants for search
of a home: multiple, heavily armed officers arrive unannounced; they often
execute warrants early in the morning; they take control of the premises and
the situation; and the potential for confrontation is high. It is not much of a
step at all to conclude that the police, in executing an ordinary search
warrant of a home, have a duty to the occupants (and those within the zone of
danger), though the steps reasonably necessary to discharge such a duty may be
less than in the case of a no-knock warrant. If all such duties are termed
"special" merely because a municipality is the defendant, we will
have abandoned the proper meaning of a "special duty," but perhaps will
have done no harm.
III
The majority incorrectly interprets the absence of any discussion on special
duty in several cases where this Court allowed negligence claims to proceed
against municipalities. The majority claims that the silence in those cases leaves
the door open to hold that no claim of negligence against a governmental actor
lies unless the plaintiff establishes a special duty, because "we have
never affirmatively held that a plaintiff need not establish a special duty
when stating a negligence cause of action against a municipality for acts
occurring when the municipality was engaged in a governmental function"
(majority op at 17). There are two problems with that conclusion. First,
whether the municipality was "engaged in a governmental function" has
nothing to do with the law of negligence. As discussed previously, we have
repeatedly held that the law of negligence is the same for public and private
actors. Whether the defendant was "engaged in a governmental
function"—as compared to a proprietary one—is not a negligence question,
it is an immunity question. Without doubt, governmental actors acting in a
governmental (nonproprietary) capacity have an immunity that private actors do
not have. That immunity may bar a valid negligence claim. It does not alter the
elements of the negligence claim.[FN11]
Second, the majority has things backwards. Our numerous cases sustaining
negligence claims against governmental defendants without any mention of a
special duty establish that no such duty is needed when an ordinary duty
exists. The plaintiffs in those cases did not need to allege any special duty;
they had viable claims of negligence because the municipality owed them an ordinary
duty of care.
As an example, our decision in McCrink v New York (296 NY 99 [1947])
holds that an ordinary duty can suffice to render a municipality liable in
negligence even when a governmental function is involved, without any need to prove
a special duty. There, an unprovoked shooting by a drunken, off-duty New
York City police officer left McCrink dead and Murphy
permanently injured. We explained:
"The breach of duty by the city which the plaintiffs
pleaded and the theory upon which the case was tried was that the city
negligently failed to discharge Anderson when it knew, or in the exercise of
reasonable care should have known, that he was an incompetent, troublesome and
vicious person who had become so addicted to an excessive use of alcohol that
he had repeatedly been the subject of disciplinary action; and that, with
knowledge of Anderson's vicious propensities the city knew or should have known
that his compliance with rule 288 of the Rules and Regulations of the Police
Department - which required him as a patrolman to carry a revolver 'at all
times' - was a source of danger to the public" (id. at 104).
None of the three avenues to establish a special duty
could have been present in that case: no statute specially protected McCrink or
Murphy; no promise was made to and relied on by them; and the police did not
take control of a dangerous situation. Instead, the claim was based on an
ordinary duty, running to individual members of the public, as to which we
emphasized that the "civil divisions of the State . . . are answerable
equally with individuals and private corporations for wrongs of officers and
employees" (id. at 106, quoting Bernadine, 297 NY at 365).
Thus, we held that even though the Police Commissioner's authority "to
dismiss a member of the police force, calls for the exercise of his
discretion," where "the retention of an employee may involve a known
risk of bodily harm to others . . . that discretion . . . is limited. It is
superseded by the duty to abate that risk if in related circumstances danger to
others is reasonably to be perceived" (id. at 105-06, citing Palsgraf,
248 NY at 344). Thus, it is painfully clear that no special duty is needed to
hold a governmental defendant liable for even discretionary governmental actions.
Again, immunity, which bars many such suits, is an independent consideration
wholly distinct from whether an ordinary duty suffices to support a claim of
negligence against a governmental entity.
An instructive counterpoint is Williams v State (308 NY 548 [1955]),
in which we held that the State had no duty running to the decedent, who was
frightened to death when an incarcerated individual with no history of violence
escaped from a minimum-security prison farm and induced the decedent to drive
him to Syracuse. Although the operation of prisons is a quintessential
governmental function, our decision does not import immunity or "special
duty" into its analysis. Instead, relying on our foundational negligence
decisions in Palsgraf and O'Neill v City of Port
Jervis (253 NY 423 [1930]), we rested our analysis
on the proposition that it is the "'risk reasonably to be perceived',
which defines the duty 'to be obeyed' in each situation" (308 NY at
554, quoting Palsgraf, 248 NY at 344). Applying that ordinary rule for
the determination of duty, we carefully distinguished between "the risks
to be perceived with the mentally ill who are irresponsible", which
"define[ ] the State's duty to protect others from them," and the
risks to be perceived with the incarcerated individual who escaped the prison
farm, who "was not a psychiatric patient" and who "had been
imprisoned for a toy pistol holdup, and had a relatively tranquil record
while in prison" (id. at 555 [emphasis in original]). That
comparison led to our conclusion that there was no "basis for the
foreseeability of [the individual's] conduct" toward the decedent (id.
at 555). We further explained that:
"[u]nlike a mental patient, [the incarcerated
individual] was being punished . . .[t]hus, if the State negligently
permitted [his] premature return to society, it breached only that public
duty to punish, a duty owed to the members of the community collectively
but importing no 'crushing burden' of liability to individuals for the breach
thereof. If it was a wrong, it was not a wrong to [the decedent], for, as to
him, the breach of duty or wrong did not carry with it 'possibilities of
danger'; the assault or threatened force upon him was not 'The risk reasonably
to be perceived' (id. at 556 [internal citations omitted]).
Like McCrink, Williams illustrates the
analysis relevant here: even though the defendant is a governmental entity
acting in a governmental (nonproprietary) capacity, special duty and
governmental function do not enter the determination of the existence and scope
of duty in negligence. Ordinary principles of negligence law, fashioned by the
court, determine the existence and scope of duty. That includes a consideration
of public policy; in Williams, the concern that the expansion of duty
"would impose a heavy responsibility upon the State, or dissuade the
wardens and principal keepers of our prison system from continued
experimentation with 'minimum security' work details" (id. at 557),
and the observation that statutory and disciplinary procedures were sufficient
to ensure appropriate care in preventing prison escapes (id. at 558).
The same proposition applies to cases the majority cites for their silence
on special duty (Flamer, 309 NY at 119; Wilkes v City of New York,
308 NY 726, 728 [1954]; Meistinsky, 309 NY at 1000; Haddock, 75
NY2d) (majority op at 16). There was no basis to consider a special duty in
those cases because an ordinary duty of care was established.[FN12]
The majority appears to wish that those cases included a statement in dicta
stating something to the effect of, "The plaintiff in these circumstances
does not need to establish that the municipality owed a special duty." But
courts are not in the habit of itemizing unnecessary, more difficult claims
that a successful plaintiff might have tried to plead. When a tourist asks me
for directions to a subway stop, I point out the shortest route. I have never
added, "there is a much longer, more circuitous route you could take
instead of walking one block south."
Indeed, the majority's own characterization of the special duty doctrine
exposes its error. The majority states that "[t]he special duty doctrine
thus developed 'to rationally limit the class of citizens to whom the
municipality owes a duty of protection'" (majority op at 9, citing Kircher
v City of Jamestown, 74
NY2d 251, 258 [1989] [emphasis added]). The cases cited by the majority for its
descriptions of the special duty doctrine all are cases that involve claims
that governmental actors failed in their duty to protect an individual from
third-party harm (majority op at 7, 9-11) (Connolly v Long Is. Power Auth., 30 NY3d 719, 725-26
[2018] [failure of municipal utility companies to prevent harm caused by
Hurricane Sandy]; Applewhite, 21 NY3d at 426 [failure of EMTs to address
harm caused by a nongovernmental nurse]; Tara N.P. v Western Suffolk Bd. of Coop. Educ. Servs.,
28 NY3d 709, 714 [2017] [county's failure to protect person from sexual
assault by worker at a county facility]; Kircher, 74 NY2d at 258
[failure of city and police to respond to reports of abduction and protect
person from subsequent beating and sexual assault]; Cuffy, 69 NY2d at
260 [failure of city to protect landlord and family members from injuries
imposed by tenants]; Sorichetti v City of New York, 65 NY2d 461, 468
[1985] [police failure to respond to mother's request for assistance resulting
in a failure to protect minor child from injuries inflicted by father]). When a
governmental actor directly and negligently injures someone, no "duty of
protection" is involved—it is a duty not to inflict injury.
Likewise, the majority's observation that the special duty doctrine
"minimizes a municipality's exposure to 'open-ended liability of enormous
proportions with no clear outer limits,' which could otherwise 'discourage
municipalities from undertaking activities to promote the general welfare' that
may expose them to liability" undermines its interpretation of that
doctrine (majority op at 18, citing O'Connor v City of New York, 58 NY2d
184, 191 [1983]; McLean v City of New York, 12 NY3d 194, 204 [2009]).
Open-ended-liability of enormous proportions could well result if the
government could be held liable for negligently failing to protect people from
the acts of third parties, which is precisely where the special duty doctrine
lives. In contrast, holding the government liable in negligence for its own
acts that directly cause injury serves the same socially beneficial purpose as
with private actors: placing an economic incentive to take reasonable steps to
avoid unnecessary harm on the party able to avoid it. To the extent a different
cost-benefit calculus pertains to some types of government action that cause
direct injury, that is handled through the separate application of governmental
immunity, not contortions of negligence law.
The two cases on which the majority relies most heavily, Applewhite (21
NY3d) and Lauer v City of New York
(95 NY2d 95 [2000]), do not support its novel proposition that governmental
actors acting in a governmental capacity cannot be sued for negligence unless a
special duty is established. In Applewhite, a private visiting nurse
injured a child by administering medicine that produced anaphylaxis.
Government-affiliated EMTs who responded to the emergency lacked epinephrine,
and, while performing CPR, advised the mother to wait for the properly equipped
EMT vehicle to arrive instead of taking the child to the hospital. The child
ultimately suffered brain damage. We remanded Applewhite to the trial
court for a determination of whether the EMTs assumed a special duty to the
child. Applewhite is entirely consistent with a proper understanding of
negligence law and offers the majority no support. Just as police and
firefighters have no duty, actionable through a claim of negligence, to protect
the public from criminals and fires, EMT's have no such duty to protect the
public from injuries caused by private nurses (or otherwise). If the EMTs
themselves negligently administered a lethal drug to the child, or (as in McCrink)
the municipality knew that the ambulance driver was prone to drive drunk, and
while doing so he crashed the ambulance on the way to the hospital, no special
duty would be required: the question then would only be whether the law imposed
an ordinary duty of care.
The majority also misreads Lauer. A careful reading shows that it,
too, does not support the majority's claim. In Lauer, a doctor employed
by the New York City Chief Medical Examiner ruled a child's death a homicide
from blunt trauma to the head (95 NY2d at 97-98). Several weeks later, the
doctor realized that the cause of death was a brain aneurism, but the doctor
failed to correct the autopsy report or inform the police. The police continued
investigating the father for 17 months, during which he allegedly was
ostracized by his neighbors, divorced by his wife, and was subjected to other
humiliation and harassment (id.).
In Lauer, we discussed conditions that could give rise to a special
duty owed to the father from the Office of the Chief Medical Examiner, but our
central holding in the case was that there was no duty—ordinary or special—that
was owed to the father. In the decision, we explained that our focus was on
duty—"an essential element of any negligence case"—because
"[w]ithout a duty running directly to the injured person there can be no
liability in damages, however careless the conduct or foreseeable the
harm" (id. at 100). We discussed that "[t]o sustain liability
against a municipality, the duty breached must be more than that owed the
public generally" (id.)—capturing the oft-stated proposition that
merely because a city has a generalized duty to provide police or fire
protection or water, that sort of obligation does not establish an ordinary
duty to a given individual under negligence law. (Likewise, when party A
contracts with party B, no tort for negligent performance of the contract will
lie, even though there is a contractual "duty" to perform the contract
obligations [Clark-Fitzpatrick, Inc. v Long Island R. Co., 70 NY2d 382,
389 (1987)]). Because the plaintiff in Lauer could not "point to a
duty owed to him by the Office of the Chief Medical Examiner, his negligence
claim must fail" (id. at 101). We then explained why no duty
existed. First, we rejected Lauer's argument that New York City Charter §557
created a duty that ran to "members of the general public who may become
criminal suspects" (95 NY2d at 102). Next, we rejected Lauer's contention
that there was a "special relationship" between Lauer and the Medical
Examiner because none of the four elements necessary to create a special
relationship were met (id., citing Cuffy v City of New
York, 69 NY2d 255, 260 [1987]).
After rejecting those arguments, we then turned more broadly to the question
of duty—not special duty, but duty generally. We began by noting that
"absent legislative intervention, the fixing of the 'orbit' of duty, as
here, in the end is the responsibility of the courts" (id. at 103,
quoting De Angelis v Lutheran Med. Ctr. [58 NY2d at 1055]). We then
considered whether "to impose a new duty on the Office of the Chief
Medical Examiner, which for the future would run to members of the public who
may become subjects of a criminal investigation into a death." In
determining not to do so, we did not discuss "special duty"
whatsoever—because the duty would have been an ordinary duty—one that did not
implicate any of the three avenues for establishment of a special duty
(statutory duty for a specific class; promise and reliance; assumption of
control over a dangerous situation). Instead, we declined to establish a
general duty because, after weighing the "consequential effects" of
such a duty, we could not "agree that the proposed enlargement of the
orbit of duty, resting largely on the foreseeability of harm, is a sound
one."
Thus, far from supporting the proposition that any negligence claim against
a governmental actor exercising a governmental function must rest on a special
duty, Lauer illustrates that, even when the elements necessary to create
a special duty are lacking, the court may nevertheless establish an ordinary
duty applicable to governmental actors exercising a governmental function. We
considered doing so and rejected it in that case, noting that "fixing the
orbit of duty has likely divided this Court more than any other issue" (id.
at 103). Strangely, although announcing a novel proposition that the existence
of a "special duty" is a sine qua non of governmental
liability when the government exercises a governmental (non-proprietary)
function, the majority has, under the misnamed moniker of "special
duty," conducted the balancing of policy concerns pertinent to
establishing a general duty and has done exactly that: where we refused to
create a duty running from the Medical Examiner to homicide suspects in Lauer,
here, we have announced a duty running from the police to (at least) persons
present within the premises subject to no-knock warrants.
IV
The disagreement between the majority and me may seem semantic, but the
difference in analytic method and faithfulness to our precedent is important.
We must acknowledge, as so many of our cases hold, that our government can owe
ordinary duties of care to those within our borders. Cabining governmental
negligence to situations where the Legislature has expressly protected a
certain class of person, promises made to and relied on by a specific
individual, and circumstances where the government takes control of a dangerous
situation, flouts our precedent such as McCrink and Meistinsky, which
establish an ordinary duty of municipalities—running to affected members of the
public and requiring proper hiring and training of police officers—sufficient
to support a claim of negligence if breached. It also evidences either a tone
deafness to the needs of modern society or a fundamental misunderstanding of
the nature of tort law, or both. Just as "[p]recedents drawn from the days
of travel by stage coach do not fit the conditions of travel today," the scope
of duty attendant to police activity differs today than it did in the days of
the stage coach. The scope of ordinary duty in negligence is ours to define,
and must embody "whatever the needs of life in a developing civilization
require them to be" (MacPherson v Buick Motor Co., 217 NY 382, 391
[1916]).
Where we could have revived the proud tradition of Chief Judge Cardozo's
court in advancing tort law to meet modern needs by announcing an ordinary duty
of the police to use due care in planning and executing no-knock warrants, the
majority has littered its opinion with unsound conclusions suggesting that
police activity—or any nonproprietary governmental negligence—can proceed only
by establishing a special duty. Instead of advancing the law, we become a
regressive outlier. Other states do not require any showing of a special duty
when a governmental actor has directly harmed the plaintiff.[FN13]
Query how the majority's formulation will address a situation in which a police
officer pursues a suspect into a crowd and opens fire wildly, injuring
bystanders, or engages in a high-speed chase through a pedestrian-laden area,
striking several pedestrians. None of our avenues for creation of a special
duty would apply, though a future court should find itself hard-pressed to say
that because the officer was engaged in a governmental function, the officer
(and, vicariously, the government) cannot be held liable in negligence. What we
should want that future court to hold is that, just as a private security guard
has a duty not to fire into a crowd of bystanders or drive recklessly through a
pedestrian mall, government employees have that same duty. In what
circumstances we might grant immunity to the officer or governmental entity is
a wholly separate question, one not raised here and one which should not be
incorporated into the determination of negligence.
Following certification of a question by the United States Court of Appeals
for the Second Circuit and acceptance of the question by this Court pursuant to
section 500.27 of this Court's Rules of Practice, and after hearing argument by
counsel for the parties and consideration of the briefs and record submitted,
certified question answered in accordance with the opinion herein. Opinion by
Judge Singas. Chief Judge DiFiore and Judges Garcia, Cannataro and Troutman
concur. Judge Wilson dissents in an opinion, in which Judge Rivera concurs.
Decided March 22, 2022
Footnotes
Footnote 1: Police may obtain
authorization "to enter premises to be searched without giving notice of
[their] authority and purpose"—i.e., a no-knock warrant—upon a showing of
"reasonable cause to believe" that evidence may be destroyed, notice
may endanger the life or safety of the police or other person, or where the
subject of a felony warrant is likely to commit another felony or endanger the
safety of others (CPL 690.35 [4] [b]).
Footnote 2:Plaintiff also interposed
state law causes of action sounding in false arrest and battery, as well as a
federal excessive force claim under 42 USC §1983.
Footnote 3: The Second Circuit did
not certify a question concerning governmental function immunity and, thus, we
have no occasion to address the Second Circuit's analysis of that issue here,
despite the City's request that we do so (see 975 F3d at 271 [noting
that the governmental function immunity issue on the appeal raised "two
related but distinct legal questions, which the New York Court of Appeals has
apparently not explicitly addressed"]).
Footnote 4: The dissent ignores this
black letter law, erroneously suggesting that whether a municipality is engaged
in a governmental or proprietary function has no bearing on an assessment of
negligence (see dissenting op at 2, 11). Our cases plainly demonstrate
the significance of the proprietary/governmental function distinction to the
special duty analysis, with only proprietary functions subject to an
"ordinary" duty of care (see e.g. Wittorf v City of New York, 23 NY3d 473,
479-480 [2014] [highway planning, design, and maintenance are proprietary
functions]; Schrempf, 66 NY2d at 294 [certain medical and psychiatric
care are proprietary functions]).
Footnote 5: On the other hand,
because the special duty rule and the governmental function immunity defense
operate independently of each other, in appropriate circumstances, a court may
conclude that the municipality is not liable for its alleged negligence under
the governmental function immunity defense, without first addressing special
duty.
Footnote 6: The dissent misreads Lauer
to suggest that a plaintiff may establish an "ordinary duty" separate
from a special duty when a municipality is "exercising a governmental
function" (dissenting op at 20). While Lauer sets forth a general
discussion of the law of duty, its holding plainly rejects the two bases
proffered to establish a special duty, namely theories based on certain
statutes and conduct purportedly giving rise to a voluntary assumption of a
duty (Lauer, 95 NY2d at 101-103).
Footnote 7: Our decision does not
implicitly overrule McCummings, Meistinsky, Flamer, and Wilkes.
We simply have not yet examined factual circumstances similar to those cases
through the lens of our contemporary understanding of the special duty
doctrine.
Footnote 8: Notably, however,
plaintiffs alleging injuries caused by police shootings often assert other
state law tort claims, such as battery, and federal claims of excessive force,
that do not require a showing of duty (see Jones v State of New York, 33
NY2d 275, 279 [1973]). Indeed, plaintiff asserted such claims in this
litigation.
Footnote 9: The majority acknowledges
that "[t]he Second Circuit did not certify a question concerning
governmental function immunity and, thus, we have no occasion to address the
Second Circuit's analysis of that issue here, despite the City's request that
we do so" (majority op at 5 n3). Despite that acknowledgement, the
majority discusses governmental immunity at length and then improperly injects
that discussion into negligence law as applied to governmental actors (majority
op at 7-9). The elements of negligence law and the elements of governmental
immunity are two unrelated subjects whose separateness should be maintained,
not conflated.
Footnote 10: A plaintiff must
satisfy each of four conditions to prove a governmental defendant voluntarily
assumed a special duty to the plaintiff: (i) the governmental defendant must
have assumed through promises or actions an affirmative duty to act on behalf
of the injured party; (ii) the governmental defendant must have known that its
inaction could cause harm; (iii) the plaintiff must have had direct contact
with the governmental defendant; and (iv) the plaintiff must have justifiably
relied on the governmental defendant's affirmative undertaking (Cuffy v City
of New York, 69 NY2d 255, 260 [1987]).
Footnote 11: The majority claims
that "[o]ur cases plainly demonstrate the significance of the
proprietary/governmental function distinction to the special duty analysis,
with only proprietary functions subject to an 'ordinary' duty of care"
(majority op at 9 n4, citing Wittorf v City of New York, 23 NY3d 473, 479-80
[2014]; Schrempf v State of New York, 66 NY2d 289, 294 [1985]). That
claim is erroneous; those cases merely demonstrate that when governmental
actors act in proprietary functions, they are held to ordinary duties of care.
Those cases do not hold—nor do any other cases—that only when a
government actor acts in a proprietary function may it be subject to an
ordinary duty of care.
Footnote 12: The majority
acknowledges the challenge that cases like McCummings, Meistinsky,
Flamer, and Wilkes pose to its decision when it states that its
"decision does not implicitly overrule [those cases]" and that
"[w]e simply have not yet examined factual circumstances similar to those
cases through the lens of our contemporary understanding of the special duty
doctrine" (majority op at 16 n7). The majority draws the wrong conclusion;
those cases' silence on special duty emphatically illustrates that the special
duty doctrine is wholly irrelevant to their disposition. The governmental
defendants in those cases did not mention any "special duty"
limitation—or any other legally inapplicable concept—precisely because of the
legal irrelevance.
Footnote 13: Some states articulate
a "public duty doctrine" that provides that a plaintiff suing a
governmental unit or agent must establish that the government owed that plaintiff
a duty of care separate from its general duties to the public at large. Where
the duty a plaintiff alleges was violated is a general duty to the public, the
plaintiff may nevertheless sue in negligence if the plaintiff can show a
special relationship was assumed by the municipality. The public duty doctrine,
however, is irrelevant where a government actor directly harmed a plaintiff in
a way that would give rise to a tort action were the harm committed by a
private actor (see Kent v City of Columbia Falls, 379 Mont 190, 201
[2015] ["(C)ourts should first determine whether a governmental defendant
has a specific duty to a plaintiff arising from 'generally applicable
principles of law' that would support a tort claim. If a private person would
be liable to the plaintiff for the acts that were committed by the government,
then the governmental entity would similarly be liable. Where such a specific
duty and breach exists, the public duty doctrine has no application"]; Cope
v Utah Valley State Coll., 342 P3d 243, 252 [Ut 2014] ["(I)f a police
officer affirmatively acts by negligently discharging his weapon and wounds a
child ten blocks away, it would be absurd to inquire whether the officer had a
special relationship with the innocent victim. Imposing liability if the
officer happened to have a special relationship with the child, but disallowing
recovery if no such relationship existed simply would not make sense"]; Coty
v Washoe Cty., 108 Nev 757, 760 [1992] [along with instances where a police
or fire department assume a special duty to the plaintiff, instances where
"a public officer's conduct 'affirmatively causes' harm to an
individual" is an exception to the public duty doctrine] [emphasis in
original]; Mancini v City of Tacoma, 196 Wash2d 864, 885-86 [2021]
["Unlike government actors in many public duty doctrine cases who fail to
protect a plaintiff from harm caused by a third party or entity, the police in
this case personally caused the harm of which (plaintiff) complains. In such
cases of affirmative misfeasance, all individuals have a duty to exercise
reasonable care—including when they invade another's property"] [internal
citations omitted]; see also Stevenson v City of Doraville, 294 GA 220,
220-23 [2013] [stating that the public duty doctrine does not apply to claims
of misfeasance, which are claims of active negligence]; Williams v State of
California, 34 Cal3d 18, 24 [1983] [holding that common law on whether
people have a duty to respond to accidents applies to police officers and
quoting a D.C. appellate court for the claim that, "A person does not, by
becoming a police officer, insulate himself from any of the basic duties which
everyone owes to other people, but neither does he assume any greater
obligation to others individually. The only additional duty undertaken by
accepting employment as a police officer is the duty owed to the public at
large"]). Other states do not have a special duty or public duty rule at
all (see Natrona County v Blake, 81 P3d 948 [Wy 2003]; Schear v Board
of County Com'rs of Bernalillo Cty, 687 P2d 728 [NM 1984]; Brennen v
City of Eugene, 285 Or 401, 411 [1979]; Coffey v City of Milwaukee,
74 Wis 2d 526 [1976]; Coleman v East Joliet Fire Prot. Dist., 46 NE3d
741, 757-58 [Ill 2016]).