Lewis Kovit et al.,
Respondents,
v.
Estate of Katherine Hallums,
Respondent,
City of New York,
Appellant,
et al.,
Defendant.
Norman Lazan, et al.,
Respondents,
v.
County of Suffolk,
Appellant.
2005 NY Int. 64
ROSENBLATT
As we explained in Pelaez v Seide (2 NY3d 186, 193
[2004]), municipalities generally enjoy immunity from liability
for discretionary activities they undertake through their agents,
except when plaintiffs establish a "special relationship" with
While driving her car, Katherine Hallums collided with
a vehicle carrying security officers from the Kings County
Hospital. According to witnesses, the accident left her shaken
and so "hysterical" that the security officers tried to calm her
down. When New York City police arrived on the scene, an officer
told her to move her car forward and out of the middle of the
intersection where it had stopped. Although plaintiff was
standing directly behind Hallums's car, she moved the vehicle
backward instead of forward, crushing plaintiff's legs between
her car and the one behind her. In his suit against the City,
plaintiff alleged that the police officer acted negligently when
he told Hallums to move her car while she was unfit to drive.[1]
A
jury found the City 100 percent responsible for plaintiff's
injuries, even though it found that Hallums was also negligent.
The Appellate Division reversed, concluding that on the facts, it
was impossible for Hallums to have been negligent but not in some
The police officer was exercising his discretion when he told Hallums to move her car. Even if we were to assume Hallums was unfit to drive and that the officer knew or should have known it, municipal liability to plaintiff would not follow. To hold the City liable for the negligent performance of a discretionary act, a plaintiff must establish a special relationship with the municipality.
We made this point in Kenavan v City of New York (70
2 558, 569 [1987]). There, the plaintiff was injured because
firefighters had parked firetrucks improperly. The Court held
that there is municipal immunity from suit when the conduct
complained of "involves the exercise of professional judgment,"
even if the judgment was poor in retrospect ( see also Balsam v
Delma Eng'g Corp. (90 2 966, 967 [1997]). We have municipal
immunity because of what we demand from public officials in the
performance of their duties. If liability flowed from every
negligent action, officials would be trained to shrink from their
responsibility so as to avoid possible costs to their municipal
The exception to the rule, as we noted in Pelaez (2 3 at 193), is when the plaintiff establishes a special relationship with the municipality.[3] Here, plaintiff fails to do so. Establishing a special relationship based on a municipality's assumption of a duty requires (1) an assumption by a municipality, through promises or actions, of an affirmative duty to act on behalf of the injured party; (2) knowledge on the part of a 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 ( see Pelaez, 2 NY3d at 202; Cuffy v City of New York, , 69 NY2d 255, 260 [1987]).
Plaintiff does not satisfy the third element of this
test.[4]
The police officer's contact was with Hallums, not
plaintiff. Not only was there a lack of a special relationship
After plaintiff pulled his car over to the shoulder of
the Long Island Expressway, a Suffolk County highway patrol
officer came up behind him with flashing lights. Plaintiff left
his car and walked back to the police cruiser to speak with the
officer. In his complaint, plaintiff alleges that he told the
officer he had chest pains and was not feeling well. He did not,
however, allege that he told the officer he was too ill or dizzy
to drive.[5]
After explaining that it was not safe to park on the
side of the road, the officer told plaintiff to move his car to
the nearest service station. Plaintiff drove off, but soon lost
The second prong of the Pelaez/ Cuffy test for special relationship liability requires "knowledge on the part of a municipality's agents that inaction could lead to harm" ( Pelaez, 2 NY3d at 202). Here, plaintiff never expressly told the police officer he was too sick to drive, and the record shows it was not manifestly clear to the officer that plaintiff was so disabled that he could not drive a short distance to a safer location. Therefore, as a matter of law, neither plaintiff's explanation to the police officer nor his appearance put the officer on notice that instructing plaintiff to remove his car from the shoulder of the expressway could lead to harm. Under these circumstances, we cannot expect the police to make a refined, expert medical diagnosis of a motorist's latent condition. Requiring them to do so would improperly burden police in carrying out their duties.
For there to be special relationship-based liability, a
municipality's agent must be clearly on notice of palpable
danger, as where it is so obvious that a layman would ascertain
it without inquiry, or where a person unambiguously communicated
Accordingly, in Kovit, the order of the Appellate Division should be reversed, with costs, and the complaint against the City dismissed. In Lazan, the order of the Appellate Division should be reversed, with costs, defendant's motion for summary judgment dismissing the complaint granted and the certified question answered in the negative.
Footnotes
1 Plaintiff also sued Hallums and the other driver. Only the issue of the City's liability is before us.
2 Finding the award excessive, the Appellate Division modified the judgment by ordering a new trial unless plaintiff agreed to a reduction in damages.
3 See also Kircher v Jamestown, , 74 NY2d 251, 255 1989) (describing as "legion" the cases of this Court holding municipalities immune from suit for exercising governmental powers including police protection absent a special relationship, and holding there could be no liability when a police officer learned about a possible crime in progress but took no action).
4 Although the parties dispute the application of the other three elements, we need not consider them because plaintiff's failure to satisfy the third is dispositive.
5 At one point in his deposition, plaintiff explained that he told the police officer that he only parked on the shoulder because he did not feel well. He also said that he had felt dizzy and faint and did not feel like driving, but was unclear as to whether he told those things to the officer. Later in the same deposition, plaintiff stated that he could not remember what he told the officer. Moreover, the record includes a transcript of a police department internal investigation hearing where plaintiff testified that he himself did not realize he was not well enough to drive when he pulled off the shoulder.