Ordinary Negligence Standard Applied Where Ambulance (Responding to an Emergency) Struck Plaintiff Who Was Lawfully in the Crosswalk/Questions of Fact Whether There Was a “Special Relationship” Between the City’s Crossing Guard and the Plaintiff, and Whether the Crossing Guard Was Performing Ministerial, Rather than Discretionary, Functions (Such that the City Could Be Held Liable)

In a case involving a pedestrian who was lawfully crossing a street when struck by an ambulance responding to an emergency, in the presence of a city employee acting as a crossing guard, the Second Department determined that ordinary negligence standards applied to the ambulance (not the “emergence” “reckless disregard” standard of Vehicle and Traffic Law 1104) and that there were questions of fact whether the city was liable based upon a “special relationship” with the plaintiff and whether the city was liable because the crossing guard was performing ministerial, rather than discretionary, functions:

Failure to abide by the provisions set forth in Vehicle and Traffic Law §§ 1111 (duty to yield to pedestrians in crosswalk) and 1112 (pedestrian has right of way), which was the injury-causing conduct at issue here, is not privileged conduct pursuant to Vehicle and Traffic Law § 1104(b). As the injury-producing conduct was not specifically exempted from the rules of the road by Vehicle and Traffic Law § 1104(b), the principles of ordinary negligence apply … . * * *

“To impose liability [upon a municipality], there must be a duty that runs from the municipality to the plaintiff. We have recognized a narrow class of cases in which a duty is born of a special relationship between the plaintiff and the governmental entity” … . One of the ways that a special relationship arises is when the municipality “assumes a duty that generates justifiable reliance by the person who benefits from the duty” … . * * *

Further, “[g]overnment action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff apart from any duty to the public in general” … . Here, the City defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them on the basis that the crossing guard’s actions were discretionary. Based on their submissions in support of their cross motion, and under the circumstances here, the City defendants failed to eliminate all triable issues of fact as to whether the crossing guard’s actions constituted ministerial governmental functions … . Benn v New York Presbyt Hosp, 2014 NY Slip Op 05615, 2nd Dept 8-6-14