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PLAINTIFF ALLEGED HE WAS SEXUALLY ABUSED BY AN EMPLOYEE OF THE COUNTY SHERIFF’S DEPARTMENT IN A GUARDED DEPARTMENT PARKING LOT AND IN A LOCKED BATHROOM IN THE JAIL; BECAUSE THE COUNTY WAS ENGAGED IN A GOVERNMENTAL, NOT A PROPRIETARY, FUNCTION (PROVIDING SECURITY FOR THE PARKING LOT AND JAIL), PLAINTIFF MUST DEMONSTRATE THE COUNTY OWED HIM A SPECIAL DUTY, WHICH HE WAS UNABLE TO DO (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the negligence action against the county in this Child Victims Act case should have been dismissed. Plaintiff alleged defendant Weis, a corrections officer employed by defendant Suffolk County Sheriff’s Department, sexually abused him in a guarded parking lot at the Sheriff’s Department and in a locked bathroom in the jail. The Second Department held that the alleged negligence related to a governmental function, not a proprietary function of the Sheriff’s Department, requiring plaintiff to demonstrate he was owed a “special duty:”

… [T]he specific acts or omissions that allegedly caused the plaintiff’s injuries were the defendant’s decisions regarding the level of security and surveillance to provide in a fenced-in jail parking lot, with admission controlled by a posted guard, or within the facility itself. Those decisions go beyond the scope of the defendant’s duty as a landlord and constitute actions undertaken in the defendant’s police protection capacity … . Accordingly, the specific acts or omissions at issue here involved a governmental function.

… [B]ecause the defendant was engaged in a governmental function, the plaintiff was required to demonstrate that the municipality owed him a “special duty” … . A special duty can arise, as relevant here, where “the plaintiff belonged to a class for whose benefit a statute was enacted” or “the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally” … . Here, the defendant demonstrated, prima facie, that it did not owe a special duty to the plaintiff, and the plaintiff failed to raise a triable issue of fact in opposition … . Neary v Suffolk County Sheriff’s Dept., 2025 NY Slip Op 00105, Second Dept 1-8-25

Practice Point: It is not easy to determine whether a governmental entity is engaged in a governmental function or a proprietary function at the time of an alleged negligent act or omission. Here plaintiff alleged abuse by a Sheriff’s Department employee in the guarded department parking lot and in a locked bathroom in the jail. The Second Department deemed the security of the parking lot and the jail a governmental function (acting as a landlord) and held the county could not be liable unless it owed plaintiff a ‘special duty.” Plaintiff was unable to demonstrate a “special duty.”

 

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