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Village Not Liable for Failure to Place a Crossing Guard at a Particular Intersection—Placement of Crossing Guards Is a “Discretionary,” Not “Ministerial,” Government Action—No Liability Absent Special Relationship to Plaintiff

Infant plaintiff was struck by a car as he was crossing a street after leaving school.  There was no crossing guard at the intersection where infant plaintiff was struck, but there were crossing guards at nearby intersections.  The Second Department determined that the placement of crossing guards was a “discretionary,” not a “ministerial” action.  “[D]iscretionary or quasi-judicial acts involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result … “.  The municipality (village) was not liable absent a special relationship with the infant plaintiff apart from a duty to the general public:

“Government 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” … . ” [D]iscretionary or quasi-judicial acts involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result'” … . The assignment of crossing guards to intersections falls within the definition of a discretionary function … .

Here, the Village established its prima facie entitlement to judgment as a matter of law by demonstrating that its actions were discretionary. Although the Village had assigned crossing guards to certain intersections near the school, its decision not to post a crossing guard at the subject intersection does not give rise to liability on the part of the Village … . McCants v Hempstead Union Free School Dist., 2015 NY Slip Op 03136, 2nd Dept 4-15-15

 

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