The Third Department, in a full-fledged opinion by Justice Peters, reversing the Court of Claims, determined the “donate life registry,” which is based upon consent to organ donation indicated on driver’s license renewal applications, was a governmental, not a proprietary, function. Therefore the state may not be held liable for negligence with respect to organ donation absent a special relationship. No special relationship was alleged here. The lawsuit alleged claimant’s mother did not consent to the donation of her organs and that the Department of Health negligently interpreted a drawn line on the renewal application as a signature. The Court of Claims had upheld the “violation of the right of sepulcher” cause of action. The opinion includes detailed discussions of the law surrounding governmental versus proprietary functions, as well as the nature of governmental involvement in organ donation:
Quintessential examples of purely governmental functions include police and fire protection … and traffic regulation … . On the other hand, a governmental entity acts in a purely proprietary capacity when it serves as a landlord by virtue of its ownership and maintenance of property … . In determining where along the continuum a governmental entity’s challenged conduct falls, it is necessary to examine “‘the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred'”… . * * *
By establishing the Donate Life Registry and facilitating the identification of organ and tissue donors and the making of anatomical gifts through DMV applications and renewals, defendant is protecting and promoting the health and welfare of the public through the exercise of its general police powers. It is axiomatic that “‘[p]rotecting health and safety is one of municipal government’s most important duties'”… . Drever v State of New York, 2015 NY Slip Op 07726, 3rd Dept 10-22-15