Complaint Against Town for Sewage Backup in Home Dismissed

The Fourth Department affirmed the dismissal of a negligence complaint against a town arising from the backup of sewage in plaintiffs’ house.  The decision includes a concise but complete explanation of the issues relevant to municipal liability for negligence:

In an action against a municipality such as defendant, it is “the fundamental obligation of a plaintiff pursuing a negligence cause of action to prove that the putative defendant owed a duty of care.  Under the public duty rule, although a municipality owes a general duty to the public at large to [perform certain governmental functions], this does not create a duty of care running to a specific individual sufficient to support a negligence claim, unless the facts demonstrate that a special duty was created.  This is an offshoot of the general proposition that ‘[t]o sustain liability against a municipality, the duty breached must be more than that owed the public generally’ ” … ..“The second principle relevant here relates not to an element of plaintiffs’ negligence claim but to a defense that [is] potentially available to [defendant]—the governmental function immunity defense . . . [T]he common-law doctrine of governmental immunity continues to shield public entities from liability for discretionary actions taken during the performance of governmental functions . . . [pursuant to which] ‘[a] public employee’s discretionary acts—meaning conduct involving the exercise of reasoned judgment—may not result in the municipality’s liability even when the conduct is negligent’ ” … ..  Middleton v Town of Salina, 604, 4th Dept 7-5-13