Many times, when you sue the City of New York or one of its entities they will raise the " Qualified Immunity Defense " in order to attempt to avoid liability. What is this defense and how can a good lawyer deal with it?  

The Legal Standard 

Generally, a municipality may not be held liable to a person injured by the breach of a duty owed to the general public, such as a duty to provide police protection ( Axt v Hyde Park Police Dept., 162 AD3d 728, 729, 80 NYS3d 72 [2d Dept 2018], quoting Etienne v New York City Police Dept ., 37 AD3d 647, 649, 830 NYS2d 349 [2d Dept 2007]). "Government action, if discretionary, may not be a basis for liability, while ministerial actions may be" ( McLean v City of New York , 12 NY3d 194, 203, 878 NYS2d 238 [2009]). Discretionary acts "involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result" ( Tango v Tulevech , 61 NY2d 34, 41, 471 NYS2d 73 [1983]). If a municipality's actions are ministerial, liability may be imposed upon it if it owed plaintiff a duty "born of a special relationship between the claimant and the public entity" ( Gonzalez v State of New York , 156 AD3d 764, 764, 65 NYS3d 719 [2d Dept 2017]).

"Liability for a claim that a municipality negligently exercised a governmental function 'turns upon the existence of a special duty to the injured person, in contrast to a general duty owed to the public' ( Garrett v. Holiday Inns , 58 N.Y.2d 253, 261, 460 N.Y.S.2d 774, 447 N.E.2d 717 [1983]; see Laratro v . City of New York , 8 N.Y.3d 79, 828 N.Y.S.2d 280, 861 N.E.2d 95 [2006]; Cuffy v. City of New York , 69 N.Y.2d 255, 513 N.Y.S.2d 372, 505 N.E.2d 937 [1987] ). '[A] duty to exercise reasonable care toward [a] plaintiff' is 'born of a special relationship between the plaintiff and the governmental entity' ( Pelaez v. Seide, 2 N.Y.3d 186, 198-199, 778 N.Y.S.2d 111, 810 N.E.2d 393 [2004])" ( Coleson v City of New York , 24 NY3d  476, 481 [2014].) "[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 duly; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation" (id., citing Pelaez , supra, 2 N.Y.3d at 199-200).

With respect to the second way a special relationship can be formed between an individual and a governmental entity, the Court of Appeals has held that "the requisite elements for a duty voluntarily assumed" are "(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"( Coleson v City of New York , supra, 24 NY3d at 481, quoting Cuffy v . City of New York , supra, 69 N.Y.2d 260). Notably, "[t]he assurance by the municipal defendant must be definite enough to generate justifiable reliance by the plaintiff ( Dinardo v City of New York , 13 NY3d 872, 874, 893 NYS2d 818 [2009]), and it is the plaintiff's ultimate burden to demonstrate that defendant's "conduct actually lulled them into a false sense of security, induced them to either relax their own vigilance or forego other avenues of protection, and thereby placed themselves in a worse position than they would have been had the defendants never assumed the duty" ( Conde v City of New York , 24 AD3d 595, 597, 808 NYS2d 347 [2d Dept 2005]). However, on a motion for summary judgment, the burden is on the moving party affirmatively to demonstrate its prima facie entitlement to summary judgment; it cannot "satisfy its prima facie burden by merely pointing out gaps in the plaintiff's case" ( Blackwell v Mikevin Mgt. III , LLC , 88 AD3d 836, 837 [2d Dept 2011]).

Courts in New York have long followed the rule that an agency of government 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. ” Garrett  v Holiday Inns , 58  NY2d 253, 261[1983]; ; see also e.g. Kircher v City of Jamestown , 74 NY2d 251 [1989]; Lauer v City of New York , 95 NY2d 95 [2000]; Pelaez v Seide, 2 NY 3d 186 [2004]; Laratro v City of New York,  8 NY3d 79 [2006] . Such “special duty” Courts have explained” a duty to exercise reasonable care toward the plaintiff ‘ is born of a special relationship between the plaintiff and the governmental entity “ ( Pelaez, 2 NY 3d at 198-199). Liability for negligence attaches to a municipal department only if the offending action was both ministerial and a breach of a special duty of protection the municipality owes to the injured party, a duty apart from any duty owed to the public in general (id.; Mine v City of New York, 32 AD3d 492, 494 [2d Dept 2006]).

The doctrine of governmental immunity precludes liability for a "mere error of judgment," provided that the mistaken action resulted from discretionary decision making (Trimble v City of Albany, 144 AD3d 1484, 1487 [3d Dept 2016]). Liability only attaches to a municipal department only if the offending action was ministerial and a breach of a special duty apart from a duty owned to the public in general. Id. Mine v City of New York , 32 AD3d 492, 494[2d Dept 2006] .

[D]iscretionary or quasi-judicial acts involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result" (Haddock v City of New York, 75 NY2d 478, 484 [1990] [internal citation and quotation marks omitted]). Liability only attaches to a municipal department only if the offending action was ministerial and a breach of a special duty apart from a duty owned to the public in general . Id. Mine v City of New York , 32 AD3d 492, 494[2d Dept 2006] .

 The governmental function immunity defense cannot attach unless the municipal defendant establishes that the discretion possessed by its employees was in fact exercised in relation to the conduct on which liability is predicated..  See:  Mon v City of New York , 78 N.Y.2d at 313, 574 N.Y.S.2d 529, 579 N.E.2d 689 ; Haddock v City of New York , 75 N.Y.2d 478,484, 554 N.Y.S. 2d 439, 553 N.E. 2d 987 [ 1990]. In order to prevail on a governmental function immunity defense, a municipality must do much more than merely allege that its employee was engaged in activities involving the exercise of discretion.

“Whether an action of a governmental employee or official is cloaked with any governmental immunity requires an analysis of the functions and duties of the actor's particular position and whether they inherently entail the exercise of some discretion and judgment. If these functions and duties are essentially clerical or routine, no immunity will attach” ( Mon, 78 N.Y.2d at 313, 574 N.Y.S.2d 529, 579 N.E.2d 689 [citations omitted] ).

 The availability of governmental function immunity also turns on “whether the conduct giving rise to the claim is related to an exercise of that discretion” ( id.). The defense precludes liability for a “mere error of judgment” ( see Haddock, 75 N.Y.2d at 485, 554 N.Y.S.2d 439, 553 N.E.2d 987) but this immunity is not available unless the municipality establishes that the action taken actually resulted  from discretionary decision-making—i.e., “the exercise of reasoned judgment which could typically produce different acceptable results” ( Tango, 61 N.Y.2d at 41, 471 N.Y.S.2d 73, 459 N.E.2d 182).

 For example, in Haddock,  supra , this Court held that governmental function immunity was unavailable to a municipality that failed to establish that the asserted negligence—the retention of an employee—was the consequence of an actual decision or choice. Instead, the proof showed that the municipality had failed to adhere to its own personnel procedures and had not “made a judgment of any sort” upon learning that the employee had a criminal record and had lied about it ( Haddock, 75 N.Y.2d at 485, 554 N.Y.S.2d 439, 553 N.E.2d 987).

Governmental Immunity does not apply when a public employee, acting in the course of his or her employment, commits an ordinary tort, that anyone else might commit – for example, when the employee is negligent in driving a car ( Dooley v State of New York , 254 App Div 381, 5 N.Y.S. 2d 760 [1938,]  affd. 280 NY 748, 21 N.E. 518 [ 1939] or firing a gun. Buckley v City of New York, 56 NY2d 300, 452 N.Y.S. 2d 331, 437 N.E.2d 1088[1982 ].

 In Lauer v City of New York, 95 NY2d 95 [2000], Judge Kaye's opinion clarified that even when the municipal action is ministerial – thereby removing the issue of governmental immunity from the case, the plaintiff in a negligent 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.  As the Court stated in Pelaez v Seide, 2 NY 3d 186 [2004] 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. “(2 NY2d at 199-200[citation omitted ]; see also Garrett v Holiday Inns, 58  NY2d 253, 261[ 1983]. (Brumer v City of New York, 132 AD3d 795, 796 [2d Dept 2015] [internal citation and quotation marks omitted]; Blackstock v Board of Educ. of the City of New York, 84 AD3d 524, 524 [1st Dept 2011]; Rollins v New York City Bd. of Educ., 68 AD3d 540, 541 [1st Dept 2009]), and (4) that party's justifiable reliance on the municipality's affirmative undertaking” ( Cuffy v. City of New York, 69 N.Y.2d 255, 260, 513 N.Y.S.2d 372, 505 N.E.2d 937 [1987] [citations omitted] ). It also has been held that a special relationship giving rise to a special duty is created through "an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the injured party; knowledge on the part of the agents of the municipality that inaction could lead to harm; direct contact between those agents and the injured party; and the injured party's justifiable reliance on the municipality's affirmative undertaking" (Cuffy v City of New York, 69 NY2d 255, 260 [1987]; Rodriguez v County of Rockland, 43 AD3d 1026, 1028 [2d Dept 2007]; Pascucci v Board of Educ. of City of N.Y., 305 AD2d 103, 104 [1st Dept 2003]). The question of whether plaintiff offers sufficient evidence to establish a special relationship is a question of law for the court to resolve (Valdez v City of New York, 18 NY3d 69, 81 [2011]).

 If you have any questions about whether the City of New York has a defense of a qualified immunity , just pick up the phone and reach out to Ed Lemmo Esq. of Lemmo Law  or one of my team members  to answer your questions.   Remember unless we are retained in writing we cannot give you legal advice.  We have over 37 years experience in handling car accidents, trip and falls and medical malpractice cases on behalf of injured parties.