Practice point: A municipality may not be held liable to a person injured by the breach of a duty owed to the general public, such as a duty to provide police protection, fire protection or ambulance services. When a negligence cause of action is asserted against a municipality, and the municipality's conduct is proprietary in nature, the municipality is subject to suit under the ordinary rules of negligence applicable to nongovernmental parties. However, if it is determined that a municipality was exercising a governmental function, the municipality may not be held liable unless it owed a special duty to the injured party.
A special duty is a duty to exercise reasonable care toward the plaintiff, and follows from a special relationship between the plaintiff and the governmental entity. To establish a special relationship against a municipality which was exercising a governmental function, a plaintiff must show: (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.
Student note: A municipality's emergency response system is a textbook example of a governmental, rather than proprietary, function.
Case: Cockburn v. City of New York, NY Slip Op 05146 (2d Dept. 2015)
Here is the decision.
Tomorrow's issue: Auto accidents, stop signs, and right-of-way.
