When a negligence claim is asserted against a municipality, the first issue for the court to decide is whether, when the claim arose, the municipal entity was engaged in a proprietary function or acting in a governmental capacity. A government entity performs a purely proprietary role when its activities substitute for or supplement traditionally private enterprises. When a municipality is engaged in a proprietary function, it is subject to suit, if at all, under the ordinary rules of negligence. However, if the municipality is engaged in a governmental function and acting for the protection and safety of the public pursuant to its police powers, the plaintiff must prove the existence of a special duty as an element of the negligence cause of action.
Canberg v. County of Nassau, NY Slip Op 01658 (2d Dep't March 29 2023)
