“Special Relationship” Required Before Municipality Can Be Liable for Failure to Enforce Statute or Regulation
The Second Department determined Supreme Court should have dismissed a complaint against the village alleging plaintiffs were exposed to “noise, smoke and odor” emanating from a Verizon facility and the exposure constituted a health hazard. The complaint against the village alleged the negligent failure to enforce rules, regulations and building codes. The Second Department explained that absent a “special relationship” creating a duty of care for the benefit of particular people, liability may not be imposed on a municipality for failure to enforce a statute or regulation. The criteria for a special relationship are:
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 the municipality 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… .
“To form a special relationship through breach of a statutory duty, the governing statute must authorize a private right of action”… .
With respect to the creation of a special relationship by the municipality’s voluntary assumption of a duty and the plaintiffs’ justifiable reliance on the municipality’s undertaking, four criteria must be shown: “ (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’”… .
“[R]eliance must be examined in the specific context of the nature of the affirmative duty undertaken[,]” and “[i]t is the plaintiffs’ burden to show that the defendants’ conduct actually lulled them into a false sense of security, induced them to . . . 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”… . Ferriera v Cellco Partnership…, 2013 NY Slip Op 07706, 2nd Dept 11-20-13