New York State is Not Liable for the Negligent Performance of a Government Function

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In its recent decision, Metz v. State of New York, 19 NY3d 857, the Court of Appeals affirmed that the State is not liable for the negligent performance of a government function where the plaintiffs failed to prove that the state owed them a special duty. This case involved a “tragic” boating accident that occurred on Lake George in 2005, resulting in the death of 20 passengers and injuring 27 others. As a result, the state, which had inspected the capsized boat prior to the accident, could not be found negligent and maintained its sovereign immunity.

Here, the plaintiffs sought relief based on the theory that the State’s inspection of the public vessel, known as the Ethan Allen, was not properly made since the vessel had been modified in 1989. Inspections made prior to 1989 certified that it had a capacity to hold 48 passengers plus 2 crew members. It is claimed that after renovations it could not hold as many passengers because the changes increased the vessel’s weight and, therefore, the number of passengers should have been reduced. During examinations before trial, state inspectors testified that they did not independently verify the vessel’s passenger capacity by conducting a stability test and that the number of passengers was “rubber stamped” from year to year and certified by the Coast Guard as “gospel”. [Since the accident, the average weight per passenger has been increased from 140 pounds to 174 pounds which would reduce the number of passengers for such a vessel].

The State argued it had governmental immunity from liability and the Court of Appeals agreed. The Court found that no private right of action accrued to the injured and deceased passengers and to allow it would “be incompatible with the legislative design. The Navigation Law does not provide for governmental tort liability, but instead for fines and criminal penalties to be imposed upon vessel owners and operators.”

The Court, citing its most recent prior case on the subject, Valdez v. City of New York (18 NY3d 69, 80 [2011]) held the “‘claimants must first establish the existence of a special duty owed to them by the State before it becomes necessary to address whether the State can rely upon the defense of governmental immunity. In that vein, it is well settled that the State “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’ ” (citations omitted).”’

Valdez, supra, dealt with an interesting set of facts that brings to the fore a circumstance that may be far more prevalent than the occasional accident of a public vessel on state waters. In this case, the plaintiff sought and obtained a second order of protection against her former boyfriend, Felix Perez. She brought the order to her local precinct and gave it Officers Torres and Pereira at the Domestic Violence unit requesting that it be served on Perez. Officer Pereira subsequently called Valdez to inform her that Perez had been served with the order of protection.

About a week later, Perez called the plaintiff threatening to kill her. She then decided to take her children from their apartment to go to her grandmother’s house where she felt they would be safe. As she was heading to her car, she stopped at a payphone and contacted Officer Torres who, allegedly, told her to return to her apartment as the police would arrest Perez “immediately”. Valdez then followed the officer’s advice and spent the night at her apartment. The following evening, without having heard from the police that Perez had been arrested, or contacting the police to confirm if such was the case, she stepped into the hallway of her building to take out the garbage and saw Perez standing there brandishing a gun. He then directed her back into the apartment and, in the presence of her two children, shot her two or three times and then committed suicide.

Valdez sued the City of New York claiming that the City had undertaken a “special relationship” to protect her based on the conversations she had with Officers Torres and Pereira that they were going to “immediately” arrest Perez; that such conversations created a duty of care and their failure to arrest him was negligence and that such negligence was the proximate cause of her being shot.

A jury trial found in favor of the plaintiff and the City appealed. The Appellate Division, First Department, reversed the judgment and vacated the verdict stating that the “plaintiff failed to establish a special relationship because the proof was inadequate to support a finding that Valdez’s reliance on the officer’s promise to arrest Perez was justifiable.” Two justices dissented and the plaintiff appealed to the Court of Appeals which upheld the reversal, also with two dissents.

The Court of Appeal held, inter alia, that “[u]nder the public duty rule, although a municipality owes a general duty to the public at large to furnish police protection, this does not create 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. This is an offshoot of the general proposition that ‘[t]o sustain liability against a municipality, the duty breached must be more than that owed the public generally (citation omitted). We have deemed it necessary to restrict the scope of duty in this manner because the government is not an insurer against harm suffered by its citizenry at the hands of third parties.” The Court found that the plaintiff’s attempt to prove this special relationship/duty based on her conversation with Officer Torres was insufficient to meet her burden.

The Court went on to distinguish between actions of government employees that are discretionary [“conduct involving the exercise of reasoned judgment”], and those that are ministerial. As to the former, they are covered by governmental immunity, even if the conduct is negligent, whereas, the latter are not. However, even with respect to ministerial act which are not automatically given immunity, “the plaintiff in a negligence action must nonetheless establish that the municipality owed a duty of care by demonstrating the existence of a special duty beyond the obligation owed to the public at large.”

The Court further opined that “[t]o establish a special relationship, plaintiffs were required to show that there was: ‘(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 undertaking’ (citations omitted).”

Based on the foregoing, the majority was of the opinion that it was the last factor that was “critical” because it “provides the essential causative link between the ‘special duty’ assumed by the municipality and the alleged injury.”

Since the location of Perez at the time of his threatening phone call was unknown to both the plaintiff and the police, the plaintiff’s reliance on Officer Torres’s statement that he would be arrested “immediately” was “not reasonable” and, thus, did not create, in the Court’s opinion, “justifiable reliance”. Further, the officer’s statement should not have been the basis for her to “relax her vigilance indefinitely, a belief that apparently impelled her to exit her apartment some 28 hours later without further contact with the police.”

Chief Judge Lippman and the late Judge Jones each wrote a lengthy dissent upholding the jury’s verdict in favor of the plaintiff. Chief Judge Lippman noted that “the jury was not wrong to reject the theory that [plaintiff’s] expectation ceased to be reasonable after a day; it was at least as reasonable for the jury to conclude, as it evidently did, that with the passage of time an arrest became more, not less, likely, and that, particularly in the absence of any advisement to the contrary, plaintiff should have been able to count on the police to do what had been promised. The Court’s conclusion to the contrary is puzzling, not only because the question of reliance in these circumstances is intensely fact-bound and as such not properly within our jurisdictional purview, but also because it entails a finding that plaintiff could not have relied on the police to do, not only what was specifically promised, but what was legally required.”

Similarly, Judge Jones agreed that whether a special relationship existed between the plaintiff and the police was a question for the jury and that the jury having “specifically found a special relationship existed between the plaintiff and the police department, [ ] there existed no basis upon which a court should have disturbed this jury verdict.”