At common law, municipalities were immune from liability in tort for the misfeasance of their officers and employees. This principle of “sovereign immunity” was often summed up by the phrase, “The King can do no wrong.” Sovereign immunity was not merely a defense to liability, it was a true immunity.
In New York, sovereign immunity was surrendered in 1929 with the enactment of former section 12-a, now section 8, of the Court of Claims Act (N.Y. Court of Claims Act, 8(a) (McKinney’s 1989); Bernardine v. City of New York, 294 N.Y. 361, 365 (1945). Nevertheless, in negligence actions municipal liability is still conditioned and limited in several important respects. One such limitation is the notice of claim provisions contained in most states’ general municipal laws, including the laws of New York, which require a claimant to notify the municipality of a claim within a period of time, typically 90 days, following the event on which it is based. N.Y. Gen. Mun. Law §§ 50-e, 50-I (McKinney’s 2013).
In New York, there is also a “judge-made” doctrine of municipal immunity that, notwithstanding the general waiver of sovereign immunity, limits municipal liability in negligence cases. This doctrine, along with certain exceptions, was developed in cases alleging the negligent failure to provide police protection as well as in cases alleging negligent acts or omissions generally. In this first part of a two-part blog, we will look at the development of the municipal immunity defense in New York.
In the police protection context, the general rule was simple – notwithstanding the waiver of sovereign immunity, a municipality cannot be held liable for the negligent performance of police protection. There is an important exception: If the plaintiff could establish a “special relationship” with the police, then the defense of municipal immunity would not apply and the plaintiff could pursue the negligence claim. In 1987, in Cuffy v. City of New York, 69 N.Y.2d 461 (1985), New York’s highest court developed a four-part test to determine whether a special relationship existed. Generally, to avoid the defense a plaintiff has to prove that (1) the police assumed a duty directed at the plaintiff, (2) the police were aware that inaction could lead to serious harm, (3) the plaintiff relied on the police promise, and (4) there was some form of direct contact between the plaintiff and the police.
In the non-police protection context, the judge-made defense of municipal immunity developed on a different track. Its applicability turned on whether the act in question was deemed “discretionary” or “ministerial.” When a municipal official performed a discretionary act, one that involves the exercise of judgment and could lead to more than one acceptable result, the municipality would not be liable, even if the act were performed negligently and with injurious result (Tango v. Tulevich, 61 N.Y.2d 198 (1983). On the other hand, the negligent performance of a ministerial act, one that involves direct adherence to a governing standard with a compulsory result, could expose the municipality to liability in negligence.
Interestingly, these two lines of cases appeared to have been merged by the Court of Appeals in the 2009 decision in McLean v. City of New York, 12 N.Y.3d 194 (2009). McLean did not involve a claim for negligent police protection but rather an allegation that New York City had negligently issued a license to a daycare center. The Court rejected application of the “special relationship” test and stated, in terms suggesting applicability to police protection cases as well, that the discretionary versus the ministerial function-based test should determine whether the defense of municipal immunity applies.
Arguably, if this standard were to apply to police protection cases, it would dramatically expand the defense of municipal immunity because the provision of police services is almost always a discretionary function. And, indeed, in a case decided later in 2009, Dinardo v. City of New York,13 N.Y.3d 827 (2009), the Chief Judge of the Court in a concurring opinion openly questioned whether McLean had artificially elevated the ministerial/discretionary distinction to an importance it was never meant to have. In his view: “because almost any governmental act may be characterized as discretionary, McLean too broadly insulates government agencies from being held accountable to injured parties.”
Is the “special relationship” test a dead letter in New York law? Have New York courts attempted to gloss over McLean or even ignore it altogether? To be continued.