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PLAINTIFF ALLEGED DEFENDANT WAS LIABLE FOR HER BABY’S BRAIN DAMAGE BECAUSE DEFENDANT’S AMBULANCE BROKE DOWN ON THE WAY TO THE HOSPITAL, CAUSING A DELAY IN DELIVERY; DEFENDANT MUNICIPALITY, WHICH PROVIDED THE AMBULANCE, WAS ENGAGED IN A GOVERNMENTAL FUNCTION AND THERE WAS NO SPECIAL RELATIONSHIP WITH PLAINTIFF; THE MUNICIPALITY CAN NOT BE HELD LIABLE (SECOND DEPT).

The Second Department determined the complaint against the airport emergency medical service alleging liability for a delay in getting plaintiff to the hospital was properly dismissed. Plaintiff suffered complications giving birth which were alleged to have resulted in the baby suffering brain damage. The ambulance provided by defendant broke down and plaintiff was transferred to another ambulance. The defendant was deemed to have been engaged in a governmental function and there was no special relationship between the plaintiff and the municipal defendant. Therefore the defendant could not be held liable:

“Protecting health and safety is one of municipal government’s most important duties” … , and emergency medical services “have widely been considered one of government’s critical duties” … . …

… [D]efendant could not be held liable to the plaintiffs unless it owed them a special duty … . One way to prove the existence of a special duty is by showing that the defendant assumed a “special relationship” with the plaintiff beyond the duty that is owed to the public generally … . “The plaintiff has the heavy burden of establishing the existence of a special relationship by proving all of the following elements: (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) the party’s justifiable reliance on the municipality’s affirmative undertaking” … . Of the four factors, the “justifiable reliance” element is particularly “critical” because it “provides the essential causative link between the special duty assumed by the municipality and the alleged injury” … . Halberstam v Port Auth. of N.Y. & N.J., 2019 NY Slip Op 06479, Second Dept 9-11-19

 

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DEFENDANT ALLEGED HE WAS NOT SERVED WITH THE SUMMONS AND COMPLAINT WITHIN 120... ALTHOUGH PLAINTIFF’S COUNSEL SENT A LETTER TO THE INSURED SHORTLY AFTER...