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25 Minute Response Time by Fire Department Was Not Actionable—No Special Relationship Between Plaintiffs and Fire Department—Fire Department’s Duty Is to the Public At Large

In reversing Supreme Court, the Second Department determined a complaint against a fire department alleging a “delinquent” (25 minute) response to a 911 call should have been dismissed.  The fire department’s duty is to the public at large and there was no special relationship between the plaintiffs and the fire department:

Generally, a municipality may not be held liable for the failure to provide fire protection because the duty to provide such protection is owed to the public at large, rather than to any particular individual … . An exception to this rule exists where there is a special relationship between the municipality and the injured parties … . “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” … .

Contrary to the Supreme Court’s conclusion, there was no question of fact as to whether there was “direct contact” between the defendant and the plaintiffs. * * *

Moreover, there was no question of fact as to whether the plaintiffs justifiably relied upon any affirmative undertaking by the defendant. In this respect, the plaintiffs failed to raise a triable issue of fact as to whether the defendant’s conduct “lulled [them] into a false sense of security, induced [them] either to relax [their] own vigilance or forgo other avenues of protection, and thereby placed [them] in a worse position than [they] would have been had the [defendant] never assumed the duty” … . Kirchberger v Senisi, 2014 NY Slip Op 07986, 2nd Dept 11-19-14

 

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