Judge Stewart F. Hancock on Municipal Liability (1993)


Stewart F. Hancock, Jr.±

Copyright (c) 1993 Syracuse University College of Law; Stewart F. Hancock, Jr.

The topic “Municipal Liability Through a Judge’s Eyes”[1] requires a discussion of that essential and distinguishing feature of municipal liability–governmental immunity. As a judge for seventeen years on New York’s appellate courts, I applied New York’s immunity rules in numerous tort cases involving municipalities and, as you would expect, wrote some of the published decisions.[2]

Despite this long experience with New York’s governmental immunity law, I acknowledge that I have always found it difficult to apply the existing rules in a way that avoids results that are mutually inconsistent and, at times, at odds with accepted principles of corrective justice. That a judge finds the application of a rule troublesome may, of course, say more about that judge’s idiosyncracies than the rule’s imperfections. Nevertheless, when the history and present structure of the law are examined through the eyes of this ex-judge, something seems not right.

The trouble, I believe, lies with the basic rationale of the early decisions involving claimed negligence in furnishing municipal services–particularly police and fire protection–in which the New York Court of Appeals established exceptions to New York’s 1929 statutory waiver of immunity,[3] thereby partially reinstating immunity after the Legislature had ostensibly abolished it.[4]

I must emphasize that my concern is with these early decisions–the foundation of New York’s now established municipal immunity rules[5]–not with recent decisions applying these rules on the basis of stare decisis.

The question is whether the motivating policy reason for the exceptions to New York’s statutory waiver of immunity established by these precedents–the perceived need to keep municipal treasuries from being depleted in tort litigation–can provide a logical basis for developing a framework of immunity rules which are coherent and fair. To be sure, these judge-made rules are effective as a means of limiting the tort liability of municipalities in specific situations. In that sense, the rules work. But do they at times, as some have suggested,[6] lead to decisions that appear ad hoc and unrelated to any social theory underlying tort law[7] or principled reason in fairness, justice, or moral doctrine?[8] This is the troubling issue.

As will appear from the discussion of these original precedents, the primary, if not sole policy ground[9] for re-establishing immunity for municipalities was, simply, money: safeguarding the public fisc.[10] As one commentator has put it: “the reason for exempting a municipality from liability for injuries inflicted in the performance of its governmental functions is one of public policy, to protect public funds from being diverted from governmental purposes.”[11] A recognition of the need for financial protection of municipalities can, of course, serve as a policy reason for establishing some form of immunity; but one must doubt whether the existence of such need can be of any assistance to an appellate court in the task of formulating specific legal rules governing when, how, and under what circumstances immunity should obtain. When, to whom, and to what extent immunity should be granted are questions that require judgments concerning the types of positions and the nature of the governmental actions that should receive immunity, as well as the balancing of interests of injured parties against the competing financial interests of municipalities. Such decisions call for empirical analysis and the sort of arbitrary line-drawing that, it has been repeatedly held, should be performed by the legislature.[12]

The conflicting policy arguments pertaining to the reimposition of sovereign immunity after its supposed abolition in 1929 were advanced, at times forcefully, in a series of majority and dissenting opinions at the New York Court of Appeals.[13] These opinions leave little doubt that the principal policy reason for immunity is financial. In O’Connor v. City of New York,[14] for example, former Chief Judge Lawrence H. Cooke warned that doing away with immunity would “subject municipalities to open-ended liability of enormous proportions” and that the “imposition of such liability, in addition to posing a crushing financial burden, might well discourage municipalities from undertaking activities to promote the general welfare.”[15] This perceived financial threat to municipal treasuries seems to have added force today in the light of continuing municipal budget crises and increasing amounts paid out in tort litigation.[16] The policy reasons against the reimposition of immunity are the same as those which prompted the enactment of the 1929 statute.[17] They are best expressed in a simple question: Why should someone injured by the wrongful conduct of a governmental employee be treated differently than a person receiving the same injury through the identical conduct of an employee of a private corporation?

In the judicial debate over the reimposition of municipal immunity through a rule distinguishing a public duty from a private undertaking, Chief Judge Charles Desmond was the most vigorous opponent of the judicially-created exception to New York’s 1929 waiver of immunity. Nowhere is the argument against the public-duty/private-undertaking rule more plainly and cogently expressed than in his dissent in Motyka v. City of Amsterdam.[18] He emphasized:

The time has come to remove from our law all the remaining vestiges of governmental immunity. We should be done with exceptions and incongruities. We should cut through the wilderness of special instances and say, as we did of hospital immunity in Bing v. Thunig, that municipal non-liability for injury-causing breaches of duty is archaic and unjust.[19]

A few years later, following Chief Judge Desmond’s retirement, Judge Kenneth Keating, in an impassioned dissent in Riss v. City of New York,[20] assumed the mantle of lead advocate for the abolition of the public-duty/private-undertaking distinction as a basis for municipal immunity. Linda Riss had been grossly disfigured and partially blinded when, on the day before her planned wedding, lye was thrown in her face by an assailant hired by a spurned suitor. Despite her anguished pleas that she was being constantly terrorized and harassed by the rejected suitor, the police had failed to come to her aid. The court dismissed her claim on the basis of the public-duty rule, holding simply that the case did not present a “situation where the police authorities undertake responsibilities to particular members of the public and expose them, without adequate protection, to the risks which then materialize into actual losses.”[21] It thus distinguished the much publicized case of Schuster v. City of New York,[22] in which the court had held the city liable for police failure to provide protection to plaintiff’s son, who had been killed after giving information leading to the arrest of the notorious gangster, Willie Sutton.

In his dissent from the court’s dismissal of Linda Riss’s action, Judge Keating epitomized her argument on appeal in this rhetorical question:

If a private detective acts carelessly, no one would deny that a jury could find such conduct unacceptable. Why then is the city not required to live up to at least the same minimal standards of professional competence which would be demanded of a private detective?[23]

Echoing the Desmond dissent in Steitz,[24] and citing the seemingly contrary result the court had reached in Schuster,[25] Judge Keating continued with his assault on the public-duty/private-undertaking rule:

The foremost justification repeatedly urged for the existing rule is the claim that the State and the municipalities will be exposed to limitless liability. The city invokes the specter of a ‘crushing burden’ if we should depart from the existing rule and enunciate even the limited proposition that the State and its municipalities can be held liable for the negligent acts of their police employees in executing whatever police services they do in fact provide. . . . The fear of financial disaster is a myth. The same argument was made a generation ago in opposition to proposals that the State waive its defense of “sovereign immunity.”[26]

The debate over whether New York should have the public-duty/private-undertaking rule as the test for municipal immunity ended in 1983 in O’Connor v. City of New York.[27] In a four-to-three decision, the court held in an opinion by then Chief Judge Cooke that the city should not be liable for a gas explosion allegedly caused by the negligence of a city inspector. It was “beyond dispute that the city inspector should not have authorized issuance of the blue card;”[28] the inspector had failed to notice an open-ended gas pipe that, once gas service resumed, would spew gas into the basement inevitably resulting in an explosion. Nonetheless, on the basis of the public-duty/private-undertaking rule, the court exonerated the city for the omissions of its inspector, holding that the “gas piping regulations are designed to benefit the plaintiffs as members of the community, but the regulations do not create a duty to the plaintiffs as individuals. To hold otherwise would be to subject municipalities to open-ended liability of enormous proportions and with no clear outer limits.”[29]

In what was to be the final effort to do away with the public duty basis for immunizing a municipality, then Judge Sol Wachtler, dissenting for himself and Judges Jacob Fuchsberg and Bernard S. Meyer, argued:

A plaintiff’s right to recover for negligently inflicted injury should not depend upon whether the plaintiff belongs to a legally accepted “special class.” This judicially created caste system represents an indefensible exception to the basic principle of negligence law that a plaintiff is entitled to compensation when he has been injured by the defendant’s failure to observe standards of reasonable care under the circumstances.[30]

The debate is now over. The public-duty/private-undertaking test for municipal immunity is settled law today. The arguments on one side–the side arguing that municipalities should be liable for their torts–were founded on fairness and logic. A fundamental principle of corrective justice is that someone who is injured through the wrong of another should be fairly compensated for the loss.[31] Why should this principle operate any differently because the wrongdoer is an employee of a municipality? The arguments on the other side–the side arguing that municipalities should enjoy immunity–were pragmatic and utilitarian. Although in the Court of Claims Act section 8[32] the Legislature decreed that municipalities should be liable “in accordance with the same rules of law as applied to actions in the supreme court against individuals or corporations,”[33] the perceived threat of “open-ended liability of enormous proportions”[34] and the resultant “crushing financial burden”[35] convinced a majority of the court of appeals that immunity should be judicially reimposed through the public duty rule.

It is not my purpose to rekindle the debate over the public-duty/private-undertaking rule or, indeed, to question whether, as a practical matter, the severe budgetary straits confronting municipalities today compel some form of special protection in tort actions. Whether the public-duty rule produces the “incongruous, unfair and arbitrary results,”[36] as well as the “exceptions, interpretations and inconsistencies galore”[37] foretold by the dissenters in O’Connor and Motyka is another matter.

Two of the more recent cases applying the public-duty/private-undertaking rule demonstrate how the present rule works and, I believe, illuminate its imperfections.[38] In De Long v. County of Erie,[39] the decedent, Amalia De Long, called 911 when she saw an intruder at her kitchen door. Assured by the 911 operator that help was on the way, she remained inside instead of going out the front door where she would have been safe. In the meantime, the police, dispatched to her home, could not find any address corresponding to the street number relayed to them. Because of some mistake in the 911 procedure, the officers were recalled and the mission canceled. The intruder broke in and repeatedly stabbed Mrs. De Long. She died from loss of blood as she reached the front sidewalk.

In Kircher v. City of Jamestown,[40] two bystanders, Allen and Skinner, witnessed a man assaulting the plaintiff Deborah Kircher in a parking lot. They then saw the man drag her into her car and drive off at high speed. Allen and Skinner at first followed the car, but they abandoned their pursuit when they met a Jamestown police officer. The officer took down the model of plaintiff ‘s car, the license number, and a description of the attacker, assuring them that he would “call it in.” But he never reported the matter and some twelve hours later the plaintiff was found locked in the trunk of her car. She had been brutally raped and assaulted.

In De Long, the New York Court of Appeals held that the county could be liable for the negligence of its servants in operating the 911 system. The public duty basis for immunity did not apply, the court explained, because the County had assumed a private undertaking when it told Amalia De Long that help was on the way and she relied on that assurance by remaining in her home.

In Kircher, however, the court held that immunity applied and the municipality was not liable. As in De Long there was reliance on the police assurance of aid. But unlike De Long, the reliance was not that of the injured party. Deborah Kircher never had contact with the police. Rather, the reliance was that of the would-be rescuers who, by abandoning their efforts to help plaintiff, unwittingly left her at the mercy of her assailant. Following Cuffy v. City of New York,[41] the Court concluded that without some direct contact between plaintiff and the police, there could be no special undertaking.[42] Kircher’s claim was thus barred by the public-duty immunity rule.

My concern is not with the Cuffy/Kircher exception as an application of the public-duty/private-undertaking rule, but with the rule itself and the results that can logically flow from it.[43] In both De Long and Kircher the injured party was blameless, and on the facts alleged, the municipality was at fault. In each case, there was reliance on the municipality’s acceptance of responsibility and the reliance was causally related to the injury.[44] While the difference that the court found critical–that in De Long the reliance was by the victim and in Kircher by those who might have rescued the victim–provides a basis for the legal distinction, it is difficult to discern any reason in principles of fairness or justice why the victims, both injured through the fault of others, should not have been treated alike. Certainly, that the reliance in one case was by the victim, and in the other by would-be rescuers, in no way alters the blameworthiness of the municipality.[45]

Another of the judge-made exceptions to the New York legislature’s waiver of sovereign immunity should be mentioned–the general rule that a municipality may be liable if its agents are acting in a proprietary capacity, but not, absent some special undertaking, in a governmental capacity.[46] Although long accepted as law in New York and other jurisdictions, this rule has been much criticized as producing “highly artificial distinctions in its application to municipal activities.”[47] Like the public-duty/private-undertaking rule, the governmental/proprietary function test for immunity is based essentially on the recognized need for conserving public resources, a policy ground properly implemented through legislative balancing of interests and line-drawing.[48] Not surprisingly, the governmental/proprietary function rule has also produced results that appear unavoidably, in my view, inconsistent and at times arbitrary.

For example, the New York Court of Appeals in Weiner v. Metropolitan Transit Authority[49] denied recovery to a person who suffered injuries when assaulted on a train. The court held that “allocation of police resources to protection from criminal wrongdoing is a legislative-executive decision for which there is no liability.”[50] But a few years later in Crosland v. New York City Transit Authority,[51] the Court of Appeals, distinguishing Weiner, found no basis for immunity when Transit Authority employees failed to summon police while they were witnessing the fatal beating of a passenger at a subway station.[52]

Enough has been said to make the point. In my opinion, at least, there is now good reason to consider seriously the warnings in the Desmond, Keating, and Wachtler dissenting opinions.[53] Experience, I think, proves that the public-duty/private-undertaking and the governmental/proprietary function dichotomies have not served satisfactorily as the means for making fair and consistent determinations of municipal immunity. Assuming that there is substance in the early judicial forebodings and in the criticisms of the rules by respected commentators, what, if anything, do I suggest?

When the Government Law Center first talked with me about the idea of a conference on municipal liability and my possible participation, I was enthusiastic. I saw it as an opportunity to stimulate some helpful public discussion and, I hoped, some further study of one important area of municipal law which, from my perspective, stands out as needing careful and critical examination. The extremely perceptive and thoughtful comments and papers of Professors Horace B. Robertson, Jr., Michael Hutter, and attorneys Kevin Crawford and William Fishlinger have provided helpful discussion. But today, after attending the conference, talking with New York City Corporation Counsel Sherwood and others, and doing the research for this paper, I am more than ever convinced that an in-depth study of governmental immunity as it affects municipalities is warranted. Surely, in the 1990s, no one questions the importance of the issue or disputes that the staggering costs arising from tort claims have become budget items of major concern to municipal officials and taxpayers. The steep upward trend of the yearly sums paid out, shown by Corporation Counsel Sherwood’s statistics, is apparently becoming even steeper, if the recent pattern of verdicts against the City is any guide.[54]

What would be the purpose of such a study? In my view, the study would try to answer two questions: (1) is it likely that a process of determining tort claims against municipalities would operate with greater fairness and consistency and at less total cost if changes were made in the present system of litigating such cases in supreme court under the existing judge-made immunity rules?; and if so, (2) what changes in the system or rules should be made?

To ascertain whether “there might be a better way,” an analysis would, of course, have to be made of the fairness, the efficacy, the costs and other aspects of the present system.

But a definitive answer, I think, would also logically require a comparison with systems employed in other states, particularly states which have addressed the problems created by immunity rules through legislative reform. Several have enacted statutes codifying the rules.[55]

In New Jersey, for example, in creating the Tort Claims Act of 1972,[56] the State Legislature overruled long-existing case law and re-established the sovereign immunity doctrine.[57] Prior to the enactment of the statute, the general rule in New Jersey had been that municipal corporations could be sued in tort.[58] The 1972 statute provides that public entities may be sued, but only in the instances specified in the Act. Significantly, it also provides that all tort claims brought against a public entity under the statute shall be tried by a judge sitting without a jury.[59] Similarly, California has a statute re-establishing governmental immunity in tort actions[60] and Illinois has replaced sovereign immunity for local municipalities by the Local Governmental and Governmental Employees Tort Immunity Act.[61]

An alternative approach to the problems of municipal liability is that being urged by the City of New York, i.e., vesting exclusive jurisdiction over claims against municipalities in the New York Court of Claims.[62] In a recent speech, New York City Corporation Counsel Sherwood advocated this proposal, noting that the city “simply can’t afford to continue this trend” of enormous payouts for tort claims.[63] He observed that, while he opposes such drastic measures as “caps” on municipal liability, such monetary limits “have been adopted by no less than thirty-three of the fifty states, with limits in many cases being as low as $100,000 or even $50,000 per occurrence, regardless of the wrong committed or injury incurred.”[64]

No one can predict what the outcome of such a study might be. It is possible, of course, that the ultimate conclusion would be to recommend no reform–that imperfect though our system might be, the alternatives are no better. But I believe that it is likely that some practicable improvements in the system and the governing immunity rules could be recommended that would fairly balance the interests of the injured claimants against the competing interests of the municipalities and their taxpayers. I offer no suggestions as to what these changes might be. Who should undertake such a study? One logical answer would be the New York State Law Revision Commission.[65] California’s Tort Claims Act, it should be noted, was based on recommendations of its Law Revision Commission.[66] New Jersey’s Tort Claims Act, on the other hand, followed a lengthy and detailed study and report made by the Attorney General’s Task Force on Sovereign Immunity.[67] Some have suggested that, because the problems are so fraught with public policy considerations, the study should be undertaken by a broad-based committee, perhaps appointed by the Governor or the Legislature, which would include members of the plaintiffs’ bar and representatives of the Attorney General’s office as well as corporation counsels and county, town, and village attorneys.

I realize full well that the expected reaction to a suggestion such as this is, “oh no, not another study committee!” But, the need for fairness and coherence in the rules and the growing concern with the huge financial burdens on municipalities make it worth a try. My experience with municipal immunity rules as a trial lawyer, as a corporation counsel, and as a trial and appellate judge — reinforced by what I have learned from participating in this conference — has led me to one conclusion: We can do better, much better.

I thank the Albany Law School’s Government Law Center for giving me the opportunity to express these views.

±  The author is a former Associate Judge of the New York State Court of Appeals and is currently Distinguished Adjunct Professor and Jurist In Residence at Syracuse University College of Law and Of Counsel to the law firm of Hancock & Estabrook in Syracuse, New York. This article is based on the keynote address given by the author at the Government Law Center Conference on Municipal Liability at Albany Law School on May 25, 1993.

[1] The views expressed here, of course, are solely my own. I would like to acknowledge the helpful suggestions of Professor Vincent Bonventre of Albany Law School, and of my former law clerk, Loretta Smith, as well as the contributions of my assistant, MaryJo Santoro.

[2] See, e.g., Yearwood v. Town of Brighton, 101 A.D.2d 498, 475 N.Y.S.2d 958 (4th Dep’t 1984), aff ‘d, 64 N.Y.2d 667, 474 N.E.2d 612, 485 N.Y.S.2d 252 (1984) (immunity applied in claim based on negligence of police officer in handling complaint of domestic violence); Ufnal v. Cattaraugus County, 93 A.D.2d 521, 463 N.Y.S.2d 342 (4th Dep’t 1983), appeal denied, 60 N.Y.2d 554, 454 N.E.2d 1317, 467 N.Y.S.2d 1028 (1983) (immunity applied in claim against County for failure to erect deer-warning sign); De Long v. County of Erie, 89 A.D.2d 376, 455 N.Y.S.2d 887 (4th Dep’t 1982), aff ‘d, 60 N.Y.2d 296, 457 N.E.2d 717, 496 N.Y.S.2d 887 (1983) (no immunity in claim against county for negligence in answering 911 emergency call).

[3] N.Y. Jud. Court of Claims Act § 8 (McKinney 1989 & Supp. 1993) (Court of Claims Act of 1920, § 12-a, added L.1929, c. 467, § 1, amended L.1936, c. 775, § 2).

[4] See, e.g., Steitz v. City of Beacon, 295 N.Y. 51, 64 N.E.2d 704, 706 (N.Y. 1945) (city not liable for property damage resulting from its failure to create and maintain a proper fire protection system); Schuster v. City of N.Y., 5 N.Y.2d 75, 154 N.E.2d 534, 180 N.Y.S.2d 265 (N.Y. 1958) (city liable for death of informant for failing to provide police protection despite knowledge of threats on informant’s life); Riss v. City of N.Y., 22 N.Y.2d 579, 581-83, 240 N.E.2d 860, 860-62, 293 N.Y.S.2d 897, 898-99 (N.Y. 1968) (city not liable for injuries to plaintiff for failure to provide police protection despite pleas for assistance).

[5] The discussion in this article is limited to two established judge-made rules adhering to immunity despite the legislative waiver in § 8–the public-duty/private-undertaking and governmental/proprietary distinctions. There are, of course, other recognized bases for immunity including absolute immunity for quasi-judicial governmental decisions (see, e.g., Tarter v. State of N.Y., 68 N.Y.2d 511, 503 N.E.2d 84, 510 N.Y.S.2d 528 (1986) (decision of State parole board on releasing prisoners) and Arteaga v. State of N.Y., 72 N.Y.2d 212, 216-17, 527 N.E.2d 1194, 1196-97, 532 N.Y.S.2d 57, 59-60 (1988) (decisions of corrections officers in commencing and conducting disciplinary proceedings against inmates)) and qualified immunity for other governmental actions which are discretionary in nature but not quasi-judicial (see, e.g., Friedman v. State of N.Y., 67 N.Y.2d 271, 493 N.E.2d 893, 502 N.Y.S.2d 669 (1986) (decisions of Highway Department officials with respect to installation of median barriers during period of highway repair); Southworth v. State of N.Y., 62 A.D.2d 731, 405 N.Y.S.2d 548 (1978), aff ‘d 47 N.Y.2d 874, 392 N.E.2d 1254, 419 N.Y.S.2d 71 (1979) (decision of Department of Motor Vehicles officials to issue interim license to driver having record of repeated alcohol-related offenses); Weiss v. Fote, 7 N.Y.2d 579, 585, 587, 167 N.E.2d 63, 65, 67, 200 N.Y.S.2d 409, 413, 414 (1960) (decision of Buffalo Board of Safety in setting the timing sequence of traffic light); Ufnal, 93 A.D.2d at 524 -25, 463 N.Y.S.2d at 344-45 (see supra note 3)).

[6] See, e.g., Motyka v. City of Amsterdam, 15 N.Y.2d 134, 140-41, 204 N.E.2d 635, 637-38, 256 N.Y.S.2d 595, 598-99 (1965) (Desmond, C.J., dissenting) (city not liable for failure to require correction of defect in oil heating stove, which caused fire).

[7] See W. Page Keeton et al., Prosser & Keeton on the Law of Torts §§ 2-3 (5th ed. 1984 & Supp. 1988).

[8] See R.M. Dworkin, Taking Rights Seriously 81-130 (1978) (“Hard Cases”); Murphy & Coleman, Philosophy of Law 52-59 (1984).

[9] The original justifications for the common law doctrine of sovereign immunity–e.g., the maxim that “the King can do no wrong” and the “ancient idea that it is better that the individual should suffer an injury than that the public should suffer an inconvenience” (Delmar Dodderidge, Distinction Between Governmental & Proprietary Functions of Municipal Corporations, 23 Mich. L. Rev. 325, 337 (1925))–have long been seen as anachronistic and incompatible with a democratic form of government. See 120 A.L.R. 1377-78 (1939); see generally, Jackson v. City of Florence, 320 So. 2d 68, 69-73 (Ala. 1975). Only a minority of jurisdictions still adhere to the strict common law doctrine of sovereign or governmental immunity, which, by the middle of this century in most states, had been abandoned or substantially limited by statute or judicial decision in recognition of the hardships and injustice resulting from the doctrine. See generally, Eugene McQuillin, 18 Municipal Corporations § 53.01.10, § 53.02.10 (1993 3d ed. rev.). In the jurisdictions which have retained some form of immunity the policy justifications, such as protection of public resources, are now largely utilitarian. See 120 A.L.R. 1376 (1939); Gerald Wetherington & Donald Pollock, Tort Suits Against Governmental Entities in Florida, 44 Fla. L. Rev. 3, 8 (1992).

[10] There is, of course, an additional policy basis for the different type of immunity not discussed in this article: immunity for discretionary judgments of public officials. This immunity reflects the societal value of permitting public officials to exercise their discretion freely, unhampered by fear of retaliatory lawsuits. See Arteaga, 72 N.Y.2d at 216, 527 N.E.2d at 1196, 532 N.Y.S.2d at 59; Haddock v. City of N.Y., 75 N.Y.2d 478, 484, 553 N.E.2d 987, 991, 554 N.Y.S.2d 439, 443 (1990); Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949), cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950); 2 Harper et al., 5 Law of Torts § 29.10 (2d ed. 1986 & 1993 Cum. Supp.).

[11] 120 A.L.R. 1376 (1939); see, e.g., Kircher v. City of Jamestown, 74 N.Y.2d 251, 256-57, 259, 543 N.E.2d 443, 446-47, 544 N.Y.S.2d 995, 998-99 (1989) (see infra note 39 and accompanying text); O’Connor v. City of N.Y., 58 N.Y.2d 184, 191-92, 447 N.E.2d 33, 35-36, 460 N.Y.S.2d 485, 488 (1983) (see infra note 28 and accompanying text); Riss, 22 N.Y.2d, at 581-83, 240 N.E.2d at 860-62, 293 N.Y.S.2d at 898-900; Steitz, 295 N.Y. at 55, 64 N.E. 2d at 706; but cf., Crosland v. New York City Transit Auth., 68 N.Y.2d 165, 170, 498 N.E.2d 143, 145-46, 506 N.Y.S.2d 670, 672-73 (1986) (see infra note 51 and accompanying text).

[12] Riss, 22 N.Y.2d at 581-82, 240 N.E.2d at 860-61, 293 N.Y.S.2d at 898-99; Florence v. Goldberg, 44 N.Y.2d 189, 198, 375 N.E.2d 763, 768, 404 N.Y.S.2d 583, 588 (1978); see also, Enright v. Eli Lilly & Co., 77 N.Y.2d 377, 394, 570 N.E.2d 198, 208, 568 N.Y.S.2d 550, 560 (1991) (Hancock, J., dissenting).

[13] These early decisions deal with the public-duty/private-undertaking basis for immunity in claims involving the provision of municipal services, including police and fire protection. See Steitz, 295 N.Y. at 57-60, 64 N.E.2d at 707-08 (Desmond, J., dissenting); Schuster, 5 N.Y.2d at 94-95, 154 N.E.2d at 545-46, 180 N.Y.S.2d at 281-82 (Conway, C.J., dissenting); Schuster, 5 N.Y.2d at 100, 154 N.E.2d at 549, 180 N.Y.S.2d at 286 (Froessel, J., dissenting); Motyka, 15 N.Y.2d at 140-41, 204 N.E.2d at 637-38, 256 N.Y.S.2d at 598-99 (Desmond, C.J., dissenting); Riss, 22 N.Y.2d at 581-83, 240 N.E.2d at 860-62, 293 N.Y.S.2d at 898-900 (Breitel, J.); Riss, 22 N.Y.2d at 583-94, 240 N.E.2d at 862-68, 293 N.Y.S.2d at 900-09 (Keating, J., dissenting); Evers v. Westerberg, 32 N.Y.2d 684, 686, 296 N.E.2d 257, 343 N.Y.S.2d 361 (1973) (Fuld, C.J., dissenting from application of immunity rule); O’Connor, 58 N.Y.2d at 191-92, 447 N.E.2d at 35-36, 460 N.Y.S.2d at 488 (Cooke, C.J.), 58 N.Y.2d at 192-94, 447 N.E.2d at 36-38, 460 N.Y.S.2d at 488-90 (Wachtler, J., dissenting); see generally Horace Robertson, Municipal Tort Liability: Special Duty Issues (Police, Fire, and Safety), 44 Syracuse L. Rev. — (1994) (this issue).

[14] 58 N.Y.2d 184, 447 N.E.2d 33, 460 N.Y.S.2d 485 (1983).

[15] Id. at 191, 447 N.E.2d at 35, 460 N.Y.S.2d at 488.

[16] According to figures recently recited by Hon. O. Peter Sherwood, Corporation Counsel of the City of New York, in fiscal 1991 New York City paid out $182 million in tort settlements and judgments; in fiscal 1992 the figure exceeded $200 million. According to Sherwood, these sums represent an increase of 700% from fiscal 1979 and the total amount paid per capita in New York City for tort judgments is over $26 per year, more than eight times the comparable per capita rate in Denver and over ten times the average expenditure for citizens of Cook County, Illinois. Sherwood’s figures are exclusive of pay-outs for liability on behalf of the Housing Authority ($9 million in 1991) and the Transit Authority ($60 million in 1992). He noted that New York City has projected that it will cost $1.38 billion to resolve all tort actions pending on June 30, 1991. O. Peter Sherwood, Address at the Annual Meeting of the New York State Bar Association-Section on Insurance and Compensation Law (Jan. 27, 1993).

[17] See 120 A.L.R. 1378 (1939); McQuillin, supra note 9, § 53.02.10; Owen v. City of Independence, 445 U.S. 622 (1980).

[18] 15 N.Y.2d at 140-41, 204 N.E.2d at 637-38, 256 N.Y.S.2d at 598-600.

[19] Id. at 141, 204 N.E.2d at 638, 256 N.Y.S.2d at 600 (citing Bing v. Thuning, 2 N.Y.2d 656 (1965)) (citations omitted). Chief Judge Desmond also asserted: Any court-created tort-immunity rule should be forthrightly abandoned when its injustice and its unreality are so evident as to produce exceptions, interpretations and inconsistencies galore (Woods v. Lancet, 303 N.Y. 349, 102 N.E.2d 691 (1951); Bing v. Thunig, 2 N.Y.2d 656, 163 N.Y.S.2d 3, 143 N.E.2d 3 (1957); Greenberg v. Lorenz, 9 N.Y.2d 195, 213 N.Y.S.2d 39, 173 N.E.2d 773 (1961)).

The only ground for dismissing this complaint is reliance on Steitz v. City of Beacon, 295 N.Y. 51, 64 N.E.2d 704 (1945), and its holding that a city’s duty to furnish police and fire protection runs to the general public and not to any individual. Yet in Schuster v. City of New York, 5 N.Y.2d 75, 180 N.Y.S.2d 265, 154 N.E.2d 534 (1958), we allowed recovery to the estate of an informer who failed to get special individualized protection from the police. The Schuster opinion (5 N.Y.2d 75, 81 et seq., 180 N.Y.S.2d 265, 269, 154 N.E.2d 534, 537 (1958)) lists many instances where, for one reason or another and despite the Steitz rule (supra), municipalities have been cast in damages to individuals from negligence in the operation of police departments. Id.

[20] 22 N.Y.2d 579, 240 N.E.2d 860, 293 N.Y.S.2d 897 (1968).

[21] Id. at 583, 240 N.E.2d at 861, 293 N.Y.S.2d at 899.

[22] 5 N.Y.2d 75, 154 N.E.2d 534, 180 N.Y.S.2d 265 (1958).

[23] Riss, 22 N.Y.2d at 584, 240 N.E.2d at 862, 293 N.Y.S.2d at 900.

[24] 295 N.Y. 51, 64 N.E.2d 704 (1945).

[25] 5 N.Y.2d 75, 154 N.E.2d 534, 180 N.Y.S.2d 265 (1958).

[26] Riss, 22 N.Y.2d at 585, 240 N.E.2d at 863, 293 N.Y.S.2d at 901.

[27] 58 N.Y.2d 184, 447 N.E.2d 33, 460 N.Y.S.2d 485 (1983).

[28] Id. at 188, 447 N.E.2d at 34, 460 N.Y.S.2d at 486. After the city’s Buildings Department inspector has examined and found acceptable the installation of any new gas piping or apparatus, a “blue card” is issued in order to renew gas service to the building.

[29] Id. at 191.

[30] Id. at 192, 447 N.E.2d at 36, 460 N.Y.S.2d at 488. Judge Wachtler added:

In addition, efforts to decide tort liability by placing, or attempting to fit litigants into rigid categories breeds exceptions and often produces incongruous, unfair and arbitrary results…. The need for reform in this area has been noted in the past by other members of this court. Former Chief Judge Desmond persistently dissented against the rule which generally relieves the State and its subdivisions of liability for negligent performance of governmental duties (Steitz v. City of Beacon, 295 N.Y. 51, 57- 60; Motyka v. City of Amsterdam, 15 N.Y.2d 134, 140 -141).

Id. at 192-93, 447 N.E.2d at 36-37, 460 N.Y.S.2d at 488-89.

[31] Aristotle, Nichomachean Ethics Book V 133-43 (Martin Oswald, trans. 1962).

[32] See supra note 3.

[33] Bernardine v. City of N.Y., 294 N.Y. 361, 365, 62 N.E.2d 604, 605 (1945).

[34] O’Connor, 58 N.Y.2d at 191, 447 N.E.2d at 35, 460 N.Y.S.2d at 488.

[35] Id.

[36] Id. at 192, 447 N.E.2d at 36, 460 N.Y.S.2d at 488.

[37] Motyka, 15 N.Y.2d at 140, 204 N.E.2d at 637-38, 256 N.Y.S.2d at 598-99.

[38] De Long v. County of Erie, 60 N.Y.2d 296, 457 N.E.2d 717, 469 N.Y.S.2d 611 (1983) and Kircher v. City of Jamestown, 74 N.Y.2d 251, 543 N.E.2d 443, 544 N.Y.S.2d 995 (1989).

[39] 60 N.Y.2d 296, 457 N.E.2d 717, 469 N.Y.S.2d 611 (1983).

[40] 74 N.Y.2d 251, 543 N.E.2d 443, 544 N.Y.S.2d 995 (1989).

[41] 69 N.Y.2d 255, 260, 505 N.E.2d 937, 940, 513 N.Y.S.2d 372, 374-75 (1987). The Cuffy court declared:

As a general rule, a municipality may not be held be held liable for injuries resulting from a simple failure to provide police protection (see, e.g., Weiner v. Metropolitan Transp. Auth., 55 N.Y.2d 175, 433 N.E.2d 124, 448 N.Y.S.2d 141 (1982)) (There exists, however, a narrow class of cases in which we have recognized an exception to this general rule and have upheld tort claims based upon a ‘special relationship’ between the municipality and the claimant (citations omitted). The elements of this ‘special relationship’ 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.)


But see Sorichetti v. City of N.Y., 65 N.Y.2d 461, 482 N.E.2d 70, 492 N.Y.S.2d 591 (1985) (discussing that the direct contact requisite has not been employed in an overly rigid fashion and allowing a recovery for an infant’s injuries even though the infant’s mother, not the infant, had the direct contact with the police).

[42] The Kircher court applied the Cuffy exception in the following way:

On the facts of the instant case, neither the requirement of direct contact nor of justifiable reliance has been satisfied. Plaintiff, by virtue of her unfortunate circumstances, could not communicate with the police and thus obviously could not rely on their assurances of assistance. Notwithstanding the sympathetic circumstances of this case, however, these requirements cannot simply be overlooked in order to permit this particular plaintiff to recover as the dissenters seem to suggest.

Kircher, 74 N.Y.2d at 257, 543 N.E.2d at 446, 544 N.Y.S.2d at 998.

[43] While I dissented in Kircher, I do not dispute that Cuffy, as applied by the court, provides an acceptable precedential ground for distinguishing De Long.

[44] Amalia De Long stayed inside instead of going outside where she would have been safe; in Kircher, the would-be rescuers abandoned their efforts to save Deborah Kircher.

[45] This same apparent lack of principled reasons for conflicting results under the rule is evident when the outcomes in other cases are compared. For example, compare Schuster v. City of N.Y., 5 N.Y.2d 75, 154 N.E.2d 534, 180 N.Y.S.2d 265 (1958) (where the city was held liable for not providing police protection despite repeated threats against informant’s life) with Riss v. City of N.Y., 22 N.Y.2d 579, 240 N.E.2d 860, 293 N.Y.S.2d 897 (1968) (city was not liable for failure to provide police protection to prevent threatened attack); or compare Steitz v. City of Beacon, 295 N.Y. 51, 64 N.E.2d 704 (1945) with Foley v. State of N.Y., 294 N.Y. 275, 62 N.E.2d 69 (1945).

[46] See, e.g., Weiner v. Metropolitan Transit Auth., 55 N.Y.2d 175, 180-81, 433 N.E.2d 124, 126-27, 448 N.Y.S.2d 141, 143-44 (1982).

[47] McQuillin, supra note 9, at § 53.24.10; see also, Laraine Pacheco, Comment, The New York State Court of Appeals Flunks the Governmental-Proprietary Immunity Test in Denying Recovery to Teachers in Marilyn S. v. City of New York and Bonner v. City of New York, 56 Brooklyn L. Rev. 265, 268-71 (1990) (noting that the governmental/proprietary distinction “which has been used to resolve thousands of tort claims against New York City, has drawn widespread criticism.” (emphasis added). The Comment also adds that “[t]he Restatement (Second) of Torts § 895C (1979) rejects this distinction and applauds the Supreme Court of Florida, the first state court to declare the distinction invalid in Hargrove v. Town of Coca Beach, 96 So.2d 130 (Fla. 1957). Id. at 271, n.18.

For a discussion of the problematic nature of this distinction from a national perspective, see McQuillin, supra note 9, at § 53.02. See also, Murray Seasongood, Municipal Corporations: Objections to the Governmental or Proprietary Test, 22 U. Va. L. Rev. 910 (1936), noted in 53 U. Cin. L. Rev. 561 (1984).

[48] See supra note 13.

[49] 55 N.Y.2d 175, 433 N.E.2d 124, 448 N.Y.S.2d 141 (1982).

[50] Id. at 181, 44 N.E.2d at 127, 448 N.Y.S.2d at 144.

[51] 68 N.Y.2d 165, 498 N.E.2d 143, 506 N.Y.S.2d 670 (1986).

[52] The Crosland court distinguished Weiner thus:

Whether any act or failure to act of a Transit Authority employee alleged in the complaint can be the basis for an actionable claim against the Authority depends upon whether it is within or without the boundaries of the policy-based governmental immunity established in Weiner v. Metropolitan Transit Auth. (55 N.Y.2d 175, supra). Because the complaint alleges that an employee seeing the injury being inflicted unreasonably failed to summon aid although he could have done so without risk to himself, we hold such failure to act beyond the boundary of the Weiner immunity. Watching someone being beaten from a vantage point offering both safety and the means to summon help without danger is within the narrow range of circumstances which could be found to be actionable.

Crosland, 68 N.Y.2d at 170, 498 N.E.2d at 145, 506 N.Y.S.2d at 672.

The seemingly unavoidable difficulty in employing the governmental/proprietary rule without producing apparently inconsistent results is also evident when Miller v. State of N.Y, 62 N.Y.2d 506, 467 N.E.2d 493, 478 N.Y.S.2d 829 (1984) (state liable in its proprietary capacity as landlord for failure to keep outside doors locked in state-operated college dormitory) is compared with Marilyn S. v. City of N.Y., 134 A.D.2d 583, 521 N.Y.S.2d 485 (2nd Dep’t 1987), aff ‘d, 73 N.Y.2d 910, 536 N.E.2d 622, 539 N.Y.S.2d 293 (1989) and Bonner v. City of N.Y., 73 N.Y.2d 930, 536 N.E.2d 1147, 539 N.Y.S.2d 728 (1989). In both Marilyn S. and Bonner the city was held not liable for injuries to school teachers for negligence in failing to provide adequate security upon the ground that the city was acting in its governmental capacity. Id.; see also, Comment, supra note 47, at 265.

[53] See supra notes 13, 14, 18 -21, 22-27, 30 and accompanying text.

[54] See Sherwood, supra note 16. According to information obtained from Mr. Sherwood’s office, a sample of recent verdicts against the City of New York or its agencies includes: Marmol v. City of N.Y., Sup. Ct. N.Y. Co., 1993, Index No. 7901/91 (verdict $100 million, motion to set aside or reduce pending); Bebee v. City of N.Y., Sup. Ct. Queens Co., 1993, Index No. 3248/92 (verdict $22.3 million); Meredith v. City of N.Y., Sup. Ct. Kings Co., 1993, Index No. 1724/90 (verdict $10.5 million reduced to $1.5 million); Pancheco v. Board of Educ. of City of N.Y., Sup. Ct. Queens Co., 1992, Index No. 23195/86 (verdict $30 million, appeal pending); Ramos v. Triborough Bridge & Tunnel Auth., 179 A.D.2d 471, 578 N.Y.S.2d 181 (1st Dept. 1992) (affirming verdicts of $10 million and $1 million).

[55] See, e.g., McQuillin, supra note 9, § 53.02.20 at 145-48, especially nn.1 & 11.

[56] N.J. Stat. Ann. § 59.1-1, et. seq (West 1972).

[57] Cancel v. Watson, 329 A.2d 596, 597 (N.J. Super. 1974).

[58] See Willis v. Department of Conservation and Economic Dev., 264 A.2d 34, 36 (N.J. 1970).

[59] See N.J. Stat. Ann. § 59.1-1, et seq. (West 1972). “The Tort Claims Act represents the legislative response to the Supreme Court’s decision in Willis v. Dep’t. of Conservation & Economic Dev., 55 N.J. 534 (1970), which abrogated the doctrine of sovereign immunity to tort claims. Its purpose was to re-establish immunity of all public entities in New Jersey, on a basis more coherent and equitable than that which has obtained prior to Willis.” Harry Margolis & Robert Novack, Claims Against Public Entities at ix (1993).

[60] See 1980 (& 1993 Supp.) Cal. Legis. Serv. 815 (West) (Added by Stats. 1963, c. 1681, § 1).

The 1980 Main Volume Legislative Committee Comment — Senate describes the enactment as follows:

This section abolishes all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the state or federal constitution, e.g., inverse condemnation. In the absence of a constitutional requirement, public entities may be held liable only if a statute (not including a charter provision, ordinance or regulation) is found declaring them to be liable.


[61] 745 I.L.C.S. 10/1-102 (Laws 1965 p. 2983, § 1-101, eff. (1991) Aug. 13, 1965, formerly Ill. Rev. Stat. ch. 85, para. 1-101). See Chicago v. Vickers, 291 N.E.2d 315 (Ill. 1972).

[62] In his 1993 State of the State Address, Governor Mario M. Cuomo proposed to examine whether jurisdiction over claims against New York City and other local governments should be vested exclusively in the Court of Claims. Governor Mario M. Cuomo, State of the State Address (1993).

[63] Speaking at the Annual Meeting of the New York State Bar Association-Section on Insurance and Compensation Law. See Sherwood supra note 16 and accompanying text.

[64] Id.

[65] See N.Y. Legis. Law § 72 (McKinney 1991 & 1993 Supp.) (Added L. 1934, c. 597, § 1). The primary purpose of the Law Revision Commission is to “examine the common law and statutes of the state and current judicial decisions for the purpose of discovering defects and anachronisms in the law and recommending needed reforms.” Id.

[66] Margolis & Novack, supra note 59, Attorney General’s Task Force on Sovereign Immunity Report, at R5-6.

[67] See Report of the Attorney General’s Task Force on Sovereign Immunity (1972), reprinted in Margolis & Novack, supra note 59, at 317.

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