The Third Department determined the action against the city alleging negligence resulting in the destruction of plaintiffs’ property by fire should not have been dismissed. Fire department personnel told the plaintiffs the fire had been extinguished and that it was safe to reenter. However the fire rekindled. The Third Department held that there was a “special relationship” between the city and the plaintiffs stemming from the assurances the fire was out:
To establish a special relationship, plaintiffs were required to show: “(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” … .
Construing the evidence in the light most favorable to plaintiffs and providing them the benefit of every favorable inference …, we conclude that plaintiffs raised a triable issue of fact as to whether a special relationship existed. With regard to the first element, there is no dispute that defendants’ agents dispatched the Department to plaintiffs’ residence in response to their 911 call for assistance and that the responding crew thereafter assumed control over the ongoing fire. Even if the Department’s actions in that regard simply constituted the performance of a duty owed to the public generally … , we are of the view that, by making affirmative representations to plaintiffs that the fire had been fully extinguished and that it was safe to reenter the home, the Department assumed an affirmative duty to plaintiffs … . As for the second and third elements, knowledge on the part of the Department that inaction could result in harm can be reasonably inferred from the circumstances … , and the Department’s employees undisputedly had direct contact with plaintiffs. With respect to the final element, plaintiffs allege that they relied upon the Department’s assurances that the fire was completely extinguished in choosing to leave their home unattended for the evening. Trimble v City of Albany, 2016 NY Slip Op 07912, 3rd Dept 11-23-16
MUNICIPAL LAW (FIRE REKINDLED AFTER FIRE DEPARTMENT PERSONNEL ASSURED PLAINTIFFS THE FIRE WAS OUT, NEGLIGENCE CAUSE OF ACTION AGAINST THE CITY SHOULD NOT HAVE BEEN DISMISSED, QUESTION OF FACT WHETHER THERE WAS A SPECIAL RELATIONSHIP BETWEEN CITY AND PLAINTIFFS)/NEGLIGENCE (MUNICIPAL LAW, FIRE REKINDLED AFTER FIRE DEPARTMENT PERSONNEL ASSURED PLAINTIFFS THE FIRE WAS OUT, NEGLIGENCE CAUSE OF ACTION AGAINST THE CITY SHOULD NOT HAVE BEEN DISMISSED, QUESTION OF FACT WHETHER THERE WAS A SPECIAL RELATIONSHIP BETWEEN CITY AND PLAINTIFFS)/IMMUNITY (MUNICIPAL LAW, FIRE REKINDLED AFTER FIRE DEPARTMENT PERSONNEL ASSURED PLAINTIFFS THE FIRE WAS OUT, NEGLIGENCE CAUSE OF ACTION AGAINST THE CITY SHOULD NOT HAVE BEEN DISMISSED, QUESTION OF FACT WHETHER THERE WAS A SPECIAL RELATIONSHIP BETWEEN CITY AND PLAINTIFFS)/FIRE (MUNICIPAL LAW, NEGLIGENCE, FIRE REKINDLED AFTER FIRE DEPARTMENT PERSONNEL ASSURED PLAINTIFFS THE FIRE WAS OUT, NEGLIGENCE CAUSE OF ACTION AGAINST THE CITY SHOULD NOT HAVE BEEN DISMISSED, QUESTION OF FACT WHETHER THERE WAS A SPECIAL RELATIONSHIP BETWEEN CITY AND PLAINTIFFS)