Bow-wouch: A Word on Special Protections against Municipal Tort Liability
January 24, 2022
When performing governmental functions, municipal agencies are immune from tort liability for negligence unless it is shown that there was a “special relationship” between the plaintiff and the agency at the time the claim accrued. The special relationship doctrine can arise in any number of situations involving a municipal actor, especially claims for personal injury. Interestingly, the doctrine was recently at the center of two dog-bite cases decided by the Second Department, both of which were dismissed upon the Court’s finding that no special relationship with the plaintiff existed.
In E. v Incorporated Village of Westbury (Docket No. 2019-11668, Dec. 8, 2021), the infant plaintiff and his father sued the Village after the plaintiff was attacked by two unleashed dogs. The plaintiffs claimed that the Village failed to enforce its own laws against the keeping of dangerous animals, despite prior notice of the dogs’ dangerous propensities, and further, that the Village had an affirmative duty to protect the infant plaintiff from harm.
In Zozarro v Town of Hempstead (Docket No. 2019-08229, Dec. 15, 2021), the plaintiff sued for personal injuries after he was bitten by a dog he had hoped to adopt at the Town animal shelter. He claimed, among other things, that the Town was strictly liable as the shelter’s operator.
In both cases, the Supreme Court, Nassau County dismissed the actions on summary judgment. On both appeals, the Second Department affirmed.
The Court’s decision in E. summarizes the special relationship doctrine well. There, the Court wrote:
When a negligence claim is asserted against a municipality, the first issue for a court to decided is whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose. Whereas a municipal entity engaged in a proprietary function will be subject to liability under ordinary principles of tort law, a municipal entity acting in a discretionary governmental capacity is immune from liability absent a special duty owed to the plaintiff. A government entity performs a purely proprietary role when its activities essentially substitute for or supplement traditionally private enterprises. By contrast, a government entity 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 (E. pp. 1-2) (internal citations and quotes omitted).
Writing in its decision in Zozzaro, the Court further explained that “[a] special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation” (Zozzaro, p. 2) (internal citations and quotes omitted).
Applying the doctrine in Zozzaro, the Court found that the Town was engaged in a discretionary governmental function when operating its animal shelter pursuant to State mandate, and further, that it did not create any one of the three scenarios triggering a special relationship with the plaintiff. Accordingly, the Town was immune from liability for the plaintiff’s injuries.
In E., the Court affirmed summary judgment in the Village’s favor upon its finding that the plaintiffs failed to demonstrate whether the Village was engaged in a proprietary function, or whether the Village owed the infant plaintiff a special duty. While it seems logical that a municipality’s enforcement of its laws would inherently be treated as a governmental function triggering the need for a special relationship with the plaintiff, the Court did not expressly reach that finding in E.
The Second Department’s decisions in E. and Zozzaro can be accessed by the following links: E v Westbury and Zozzaro v Hempstead.