“Professional Judgment Rule” Did Not Preclude Lawsuit; Plaintiff Bitten by Police Dog While Assisting Police in a Search

The plaintiff was bitten by a police dog while assisting the police in a search.  Supreme Court denied defendants’ motion for summary judgment and the Second Department affirmed, explaining there was a question of fact about whether the “professional judgment rule” applied:

“The professional judgment rule insulates a municipality from liability for its employees’ performance of their duties where the . . . conduct involves the exercise of professional judgment such as electing one among many acceptable methods of carrying out tasks, or making tactical decisions” … . However, “the immunity afforded a municipality for its employee’s discretionary conduct does not extend to situations where the employee, a police officer, violates acceptable police practice” … .

Here, the defendants did not establish their prima facie entitlement to judgment as a matter of law. A question of fact with respect to whether the conduct of the dog’s handler was consistent with acceptable police practice was presented by the defendants’ evidentiary submissions … . Accordingly, summary judgment was properly denied … .  Newsome v County of Suffolk, 2013 NY Slip Op 05805, 2nd Dept 9-11-13