Municipal Liability in the State of New York, 2013
• Municipal Emergency Responders, Including Ambulance Assistance Rendered by First Responders, Fire, and Emergency Medical Technicians, Should be Viewed As a Classic Governmental Function, Rather Than a Proprietary Function.
Patient who suffered anaphylactic shock caused by an allergic reaction to prescribed medication brought action for personal injuries sustained as a result of allegedly negligent treatment rendered by the defendant City’s emergency medical technicians (EMTs). The lower court granted the City’s motion for summary judgment and the plaintiff appealed. The appellate court reversed. The Court of Appeals affirmed the holding of the appellate division.
Plaintiff’s infant suffered an allergic reaction to medication she was administered, sending her into anaphylactic shock. Plaintiff call 911, and within minutes, two emergency medical technicians (ENTs) employed by the New York City Fire Department responded in a basic life support ambulance. No advanced life support ambulance was available to respond at the time the call came in. One EMT immediately began to do CPR on the infant, while the other called for an advanced life support ambulance. Plaintiff requested that the EMTs transport the infant to a nearby hospital, however, the EMT continued to conduct CPR until paramedics arrived from a private hospital with an advanced life support ambulance. The paramedics injected the infant with epinephrine to counter the effects of the anaphylactic shock, intubated her, administered oxygen and transported her to the hospital. The infant survived, but suffered serious brain damage.
Plaintiff commenced this action against the City of New York and its EMT services (the City), as well as other defendant caregivers. The City moved for summary judgment, contending that it was immune from suit because it did not owe a special duty to plaintiff or her infant. In the alternative, the City maintained that the actions of its personnel were not the proximate cause of the infant’s injuries. The motion court granted the City’s motion, holding that the plaintiff could not prove that the City owed them a special duty or that the municipal defendants were the proximate cause of the harm. The appellate division reversed, determining that the City’s emergency medical response was governmental in nature, but found that plaintiff raised triable issues of fact whether the City had assumed a special duty to plaintiff or her infant and whether it proximately caused the injuries.
When a negligence claim is asserted against a municipality, the first issue for a court to decide is whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose. A government entity performs a purely proprietary function when its activities substitute for or supplement traditionally private enterprises. In contrast, 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. Police and fire protection are examples of long-recognized, quintessential governmental functions. On the other hand, the Court of Appeals has long recognized that certain medical services delivered by the government in hospital-type settings are more akin to private, proprietary conduct. As a general rule, the distinction is that the government will be subject to ordinary tort liability if it negligently provides services that traditionally have been supplied by the private sector.
If it is determined that a municipality was exercising its governmental function, the next inquiry focuses on the extent to which the municipality owed a special duty to the injured party. The core principle is that to sustain liability against a municipality, the duty breached must be more than that owed to the general public. The Court of Appeals 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.
In Laratro v. City of New York, 8 NY3d 79, 828 NYS2d 280 (2006), the Court of Appeals viewed municipal emergency systems and responses to 911 calls to be within the sphere of governmental functions.
In the instant case, the concurring members of the Court contend that the EMTs acted in a proprietary capacity when they began to render aid, equating their conduct with medical services, such as mental health care, obstetrics and surgery. In those situations, however, the governmental activities displaced or supplemented traditionally private enterprises. Emergency medical services, in contrast, have been widely considered one of government’s critical duties.
Consistent with this view and the Court’s reasoning in Laratro, the Court of Appeals held that publicly-employed, front-line EMTs and other first responders, who routinely place their own safety and lives in peril in order to rescue others, surely fulfill a government function – certainly no less so than municipal garbage collectors and school playground supervisors – because they exist for the protection and safety of the public and not as a substitute for private enterprises. And contrary to the belief expressed in the concurring opinions, the fact that private entities operate ambulance services in the city is not determinative because those companies provide supplemental support for a critical governmental duty rather than vice versa.
Moreover, and unlike the types of medical providers identified by the concurring members of the court, the EMTs employed by the New York City Fire Department and deployed via the 911 system receive training in basic life support techniques and their range of approved emergency services is limited by law. Basic EMTs function in a pre-hospital setting and their activities are generally restricted to CPR, oxygen administration, bleeding control, foreign body airway obstruction removal, and spinal immobilization. EMTs cannot be realistically compared to the proprietary medical professionals whose licensure requires extensive educational and training credentials, and who typically provide services at hospital or medical facilities rather than in the unpredictable community-at-large.
It was for those reasons that the Court held that a municipal emergency response system – including the ambulance assistance rendered by first responders such as the fire department EMTs in this case, should be viewed as a classic governmental, rather than proprietary, function.
This conclusion did not necessarily immunize the City from liability because the plaintiff may yet establish that a special duty was owed to her or her infant and whether the City voluntarily assumed a special relationship. Relying on its prior decision in Laratro, the Court pointed out that the response to that question requires the presence of four elements: 1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; 2) knowledge on the part of the municipality’s agents that inaction could lead to harm; 3) some form of direct contact between the municipality’s agents and the injured party; and 4) that party’s justifiable reliance on the municipality’s affirmative undertaking.
Here, the parties’ dispute centered on the first and fourth elements. The Court agreed with the Appellate Division that plaintiff had adequately presented questions of fact on both of those factors. When realizing that the EMTs’ treatment would be limited to CPR, the plaintiff asked that the infant be taken to the hospital right away. The EMT continued delivering CPR and waited for the advanced life support ambulance to arrive. This poses a question of fact as to whether the EMTs, through their actions or promises, assumed an affirmative duty in deciding to have advanced life support paramedics undertake more sophisticated medical treatment rather than transporting the infant to the hospital.
The Court also determined that a factual resolution by a jury was also necessary to resolve the justifiable reliance element, stating that it was possible for a fact finder to conclude that it was reasonable for the infant’s mother to rely on the EMTs’ alleged assurances rather than seek an alternative method for transporting the infant to the nearby hospital since the plaintiff claims that she was not informed that it would take nearly 20 minutes for the advanced life support ambulance to arrive. The allegations raise the question of whether the EMTs lulled the plaintiff into a false sense of security. Plaintiff would them be required to show how the EMTs’ statements or conduct deprived the plaintiff of assistance that reasonably could have been expected from another source. In this regard, the plaintiff has the ultimate burden of establishing that some other reasonable alternative was available.
In sum, because there were issues of fact associated with the eventual determination as to whether the City owed a special duty to plaintiff or her infant, the City was not entitled to summary judgment dismissing the complaint, and the order of the appellate court was affirmed.
Based on this holding in Applewhite, the Supreme Court in DiMeo granted defendants’ motion for summary judgment dismissing the complaint in this wrongful death action against the town and town provider of emergency medical services. Plaintiff appealed.
Plaintiff called 911 after her husband complained of chest pains and shortness of breath. Dispatch sent a paramedic, employed by defendant Town of Rotterdam, and an ambulance, that was owned by defendant Rotterdam Emergency Medical Services, Inc. (REMS), and staffed by two EMTs trained to provide basis life support. The decedent’s family requested that the decedent go to a hospital in Albany, rather than the one that was closer in the Town of Rotterdam. The paramedic determined that the decedent was stable enough to go to Albany and that advanced life support was not necessary during transport, so the paramedic turned the decedent over to the EMTs and left. About half-way to Albany, decedent’s condition worsened and the EMTs unsuccessfully tried to arrange for advanced life support assistance en route. Decedent was in cardiac arrest when they arrived at the hospital. He died the following week.
The Court of Appeals recently held that when a municipality provides emergency first responder services in response to a 911 call for assistance, as the Town did here by dispatching its paramedic, “it performs a governmental function, rather than a proprietary one, and cannot be held liable unless it owed a special duty to the injured party. Applewhite v. Accuhealth, 21 NY3d 420, 972 NYS2d 169 (2013).
The Appellate Division, Third Department, held that although the record here at least arguably contained factual issues concerning whether the Town voluntarily assumed a duty to decedent or plaintiff, thereby creating a special duty, the court did not see the need to address that question because the Town’s actions were discretionary. The Town’s paramedic exercised his discretion in making medical determinations concerning the decedent’s condition, such as the type of examination and tests to perform, whether decedent was stable enough to be transported to a hospital that was farther away, and whether he could be transported with basic life support services or it the paramedic needed to ride in the ambulance to be available to provide advanced life support services en route to the hospital. Thus, as its actions were discretionary, the Town established its entitlement to immunity pursuant to the governmental function immunity defense.
The appellate court also affirmed the lower court’s decision with regard to the defendant REMS. While REMS’ EMTs provided medical care at decedent’s house, the paramedic – who was the person with the highest level of certification – had the ultimate authority over decisions concerning the care provided. The paramedic, and not the EMTs, was responsible for deciding that decedent could be transported to the farther hospital and that the paramedic did not need to accompany the ambulance. While the EMTs could have requested that the paramedic accompany them, they could not compel him to do so. REMS could not be held liable for the paramedic’s determination not to accompany the ambulance, and the EMTs were required to defer to his medical judgment.
• City Department of Transportation Supervisor Was Performing Governmental Function When Controlling Traffic, Even When Such Activity Was Done In Preparation For Road Repairs About to be Performed.
In Wittorf, the plaintiff appealed the lower court’s decision to set aside the jury verdict in favor of the defendants following a trial for personal injuries allegedly sustained while plaintiff was riding her bicycle in Central Park.
On November 5, 2005, plaintiff and her boyfriend rode their bicycles to the entrance of Central Park transvers road at West 65th Street. At the same time, a City Department of Transportation (DOT) supervisor was in the process of setting up warning cones to close off both lanes of the road to vehicular traffic before starting to repair a “special condition” in the transverse. The “special condition” was “bigger than a pothole” but “less involved” than road resurfacing. Plaintiff was injured when she struck a pothole.
At the trial, the jury found that the roadway was not in a reasonably safe condition; however, it also held that the City could not be held liable because the it did not receive timely written notice of the particular defect, and it did not cause or create the dangerous condition. The trial court granted defendant’s motion to set award the verdict on the basis of that the City was immune from liability because the supervisor was engaged in the discretionary governmental function of traffic control, not the proprietary function of street repair, when he allowed the plaintiff to proceed.
On appeal, the First Department held that the City is entitled to governmental immunity because the specific act or omission that caused plaintiff’s injuries was the supervisor’s discretionary decision to allow plaintiff to proceed onto transverse; and therefore, the cause of plaintiff’s injuries was not the City’s proprietary function in maintaining the roadway.
Relying on settled case law, the First Department recognized that “government action, if discretionary, may not be a basis for liability.” On the other hand, ministerial actions may be give rise to liability only in those cases where a special duty is owed to the plaintiff, and the defendant violated that special duty.
Beyond this distinction, whether the subject act or omission was a governmental function or a proprietary function necessarily determines the review by the court in assessing liability.
“A governmental function is generally defined as one undertaken for the protection and safety of the public pursuant to the general police powers.” In those cases where the defendant was engaged in a governmental function, the government can still avoid liability if it timely raises the defense of governmental immunity and proves that the alleged acts or omissions were an exercise of governmental authority.
A proprietary function is one in which “governmental activities essentially substitute for or supplement traditionally private enterprises.” When performing a proprietary function, the governmental entity is generally subject to “the same duty of care as private individuals and institutions engaging in the same activity.”
In performing its analysis, the court acknowledges that the alleged activity falls along a “continuum of responsibility” and it examines the specific acts or omissions out of which the injury occurred; it does not examine, however, whether the agency involved is engaged generally in proprietary or is in control of the location in which the injury occurred.
The majority in Wittorf focused exclusively on the that fact that, at the time of plaintiff’s injury, repair work had not yet begun and the DOT supervisor was only engaged in traffic control when he waved plaintiff and her companion through, allowing them to enter the transverse but without warning them about road conditions ahead. Traffic control, the Appellate Division held, is a “classic example of a governmental function undertaken for the protection and safety of the public pursuant to the general police powers.” Therefore, the City was entitled to governmental function immunity because the specific act or omission that caused plaintiff’s injuries was the supervisor’s discretionary decision to allow plaintiff to proceed since his crew had not completed its preparations for the roadwork. Plaintiff’s injuries were not caused by the City’s proprietary function in maintaining the roadway; when plaintiff encountered the DOT supervisor he was not at the entrance of the transverse to repair potholes and that repair work was to take place later.
Judge Manzenet-Daniels wrote the dissenting opinion, arguing that the majority’s view is to narrowly focused on the DOT supervisor’s actions in waving plaintiff and her companion through the entrance to the transverse, rather than on the road-repair activity his crew has been dispatched to perform in the first place; activity “which clearly falls along the continuum of proprietary function.”
Relying on Balsam and Miller, the dissent argues that it is “well settled that the City may be held liable for negligence of the exercise of its proprietary duty to keep the roads and highways under its control in a reasonably safe condition.” In this case, the decision to allow plaintiff to proceed along the transverse cannot be viewed separately from the City’s proprietary function in maintaining the roadway. The work by the DOT supervisor of barricading an entrance to the transverse was integral to the overall assignment of repairing hazardous roadway conditions.
• Police Department Policies Designed to Address Situations of Domestic Violence Involving an Officer Create Special Duty to Victims of Domestic Violence Perpetrated by Police Officers in the Department
The case of Pearce v. Labella, in the Northern District of New York, addresses the issue of whether liability extends to a police department following a murder-suicide involving one of its officers and his estranged wife.
On the evening of September 28, 2009, Joseph Longo (“Longo”), an officer with the Utica Police Department, stabbed and killed his estranged wife, Kristin Longo (“Kristin”), and then stabbed and killed himself. The events leading up to this fateful evening give rise to a claim by Kristin’s estate that alleges violations of Kristin’s constitutional rights and common-law negligence against members of the Utica Police Department (UPD), the City of Utica, and the UPD.
As brief background, Kristin and Longo were married in the early 1990s and had four children together. Issues with the marriage pervaded, and then intensified in May and June of 2009, when it was discovered that Longo was having an extramarital affair with a fellow UPD officer.
Between mid-July 2009 and late-September 2009, Longo became more violent, erratic, and threatening again Kristin. With each episode, either Kristin or a member of her family contacted the UPD to report the incident to Longo’s supervisors and seek intervention to protect Kristin and her family.
On July 19, 2009, Kristin contacted Longo’s supervisors to report that Longo had become enraged and pushed Kristin and/or her eight-year-old son to the ground.Kristin reportedly told her matrimonial attorney, handling her divorce from Longo, and her father that the UPD discouraged her from seeking an order of protection because it could affect Longo’s employment; and therefore, the family finances.
Also in July 2009, an investigation was opened by the UPD into multiple reports that Longo had displayed his service weapon in an aggressive manner and had pointed it at others while on duty as a part-time security guard at Proctor High School. On August 13, 2009, Longo was suspended from working as security guard pending the results of the school investigation.
On both August 14, and September 14, Longo reportedly appeared at the marital home, where Kristin had been living without Longo since he moved out in July 2009, becoming emotional, crying, and threatening to “go postal,” and to kill himself. On both occasions, Kristin reported the incidents to Longo’s direct supervisor and other supervisors at the UPD.
A few days after the September 14 incident, Longo appeared at the UPD station “yelling and screaming” about recently being put on desk duty and having his firearms revoked.
On September 24, an Order to Show Cause was filed on Kristin’s behalf in Supreme Court, Oneida County, directing Longo to appear in court on September 28. Plaintiffs allege that Kristin notified the UPD on September 18 and 25, that papers regarding the divorce proceeding were being served on Longo and that this might prompt a violent reaction.
On September 28, Kristin and Longo appeared in court to begin divorce proceedings. At the proceeding, Kristin was awarded exclusive possession of the marital home and temporary physical custody of the children. After the appearance, Longo’s request to have the rest of the day off was granted. At approximately 3:15 p.m. that afternoon, Longo went to the marital home, where he fatally stabbed Kristin and then himself.
Plaintiffs bring this case alleging substantive due process violations by defendants, as well as theories of Monell liability and common-law negligence.
Regarding the Monell claim, the court articulated that in order to hold the City of Utica liable under § 1983, “plaintiffs must prove that the constitutional violation was caused by (1) a municipal policy; (2) a municipal custom or practice; or (3) the decision of a municipal policymaker.” The Second Circuit held in Reynolds v. Giuliani, that a municipality can be found to have a policy or custom that causes a constitutional violation when it is “faced with a pattern of misconduct and does nothing, compelling the conclusion that [it] has acquiesced in or tacitly authorized its subordinates’ unlawful actions.” The failure to adequately train city employees can also be a basis for municipal liability.
In this case, the court held there was sufficient evidence in the record to create issues of material fact regarding the City’s Monell liability. Indeed, proper supervision and adherence to UPD policy would have at the very least triggered a full investigation into each domestic incident Kristin reported. More startling is the fact hat Kristin reportedly told several people that a supervisor at he UPD actually discouraged her from making a formal completing for seeing out an order of protection. Plaintiffs also correctly point out that the UPD policies in place in 2009 did not require “fitness for duty” evaluations, did not outline adequate preventative measures for identified trouble employees, and did not contain specific guidelines regarding whether an officer should be involuntarily committed to a mental health facility pursuant to New York Mental Hygiene Law § 9.41.
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