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No “Special Relationship” Between Plaintiff and City, City Not Liable for Shooting of the Plaintiff by a Civilian as Police Were Leaving the Scene of a Disturbance

The Second Department determined the city was properly granted summary judgment in an action by the victim of a (civilian) shooting. Plaintiff was involved in some sort of an altercation. The police arrived and ordered the group to disperse. As the police were leaving, plaintiff was shot in the back. The court explained that the city could not be held liable for performance of a governmental function (police protection) unless there was a “special duty” owed plaintiff. No “special duty” was demonstrated here:

“Liability for a claim that a municipality negligently exercised a governmental function turns upon the existence of a special duty to the injured person, in contrast to a general duty owed to the public'” … . The provision of police protection is a “classic” governmental function, and a municipality’s general duty to furnish police protection “does not create a duty of care running to a specific individual sufficient to support a negligence claim, unless the facts demonstrate that a special duty was created” … . A special duty—”a duty to exercise reasonable care toward the plaintiff”—is “born of a special relationship between the plaintiff and the governmental entity” … . As relevant here, a special relationship can be formed when the following elements are present: “(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” … .

Here, the City defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that no special relationship was created through the voluntary assumption of a duty to the injured plaintiff, either individually or as a member of a specific class … . Even if there had been a duty here, the evidence submitted by the City defendants established that the injured plaintiff did not justifiably rely upon an affirmative undertaking by the City defendants … . Moore v City of New York, 2015 NY Slip Op 07249, 2nd Dept 10-7-15

 

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