Municipal litigation counsel can continue to sleep soundly. Before the New Year, the New York Court of Appeals, once again, reaffirmed the “special duty” doctrine in Maldovan v. County of Erie.[1]

As any first-year law student learns, the tort of negligence requires a showing that the defendant breached some “duty” owed to the plaintiff. However, what is lesser known, is that where a municipality is the defendant to a negligence cause of action, a “special duty” must be demonstrated.[2] A “special duty” is narrower than an ordinary “duty” and requires a specific showing that: (1) the plaintiff belonged to a class for whose benefit a statute was enacted; (2) the municipality voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally; or (3) the municipality took positive control of a known and dangerous safety condition.[3] Without such a showing, a municipality cannot be held liable on a theory of negligence.[4]

Although appearing unfair at first blush, New York’s highest court, the New York Court of Appeals, has described the rationale for the special duty doctrine, explaining that not providing municipalities greater protection from negligence claims would “render them less, not more, effective in protecting their citizens”[5] as “the threat of liability might deter or paralyze useful activity,’ and endanger[] the ability of [municipalities] to provide crucial services to the public.”[6]

The special duty doctrine is not novel. It has been ingrained in New York law for over a half century,[7] and its roots are even older.[8] However, despite its firm history in New York law, recent societal calls for greater protection of vulnerable individuals and further government accountability have put the special duty doctrine up for reexamination.

And compounding those societal calls have been a series of cases with horrific, troubling facts further pushing at the contours of the special duty doctrine. As the New York Court of Appeals recently noted, “[s]pecial duty cases often come to us following instances of domestic violence and other ‘sympathetic circumstances’ where emotions are charged and our shared ‘humanistic intuition’ necessarily tempts us to disregard settled law in order to permit individual recovery.”[9]

Despite those “sympathetic circumstances” and “humanistic intuition,” however, New York’s highest court “has long warned . . . against adoption of the sort of ‘ad hoc exceptions’ to the special duty . . . rule” and, over the past decade, continually “decline[d] to ‘enlarge the ambit of duty’ . . . out of ‘concern for the consequential effects’ of such a decision.”[10]

In Maldovan, the New York Court of Appeals followed its precedent and declined to erode the special duty doctrine despite the case’s tragic circumstances.[11] The decedent was a 23-year-old woman with developmental disabilities who lived with her mother. In 2009, the decedent’s brother contacted a family friend with concerns about the decedent’s well-being after another family member informed him that the decedent had “suspicious” injuries. Mistakenly believing that the decedent was under the age of 18, the family friend contacted Child Protective Services (CPS) instead of Adult Protective Services (APS). CPS visited the decedent’s home to investigate. Both the decedent and her mother provided CPS with the same “benign” explanation for the decedent’s injuries. CPS then closed the investigation and reported to the family friend that the concerns were “unfounded.”

Thereafter, the decedent’s brother was again informed of the decedent displaying injuries, including “facial bruising.” The decedent’s brother contacted APS. APS, like CPS, visited the decedent’s home. This time, however, the decedent’s mother refused to permit APS to interview the decedent alone. APS interviewed the decedent with the decedent’s mother, and the decedent provided the same benign explanation for her injuries. APS, like CPS, closed its investigation and found the concerns “unfounded.”

Later on, the decedent ran away from home and was found at an abandoned Girl Scout camp by two Erie County sheriff’s deputies. The sheriff’s deputies returned the decedent to her home and mother’s care. Only two months later, the decedent’s mother and other brother (apparently not the brother who raised concerns about the decedent’s injuries) tortured and murdered the decedent in her home. The murderous mother and brother were convicted and sentenced to significant prison terms for their crimes.

The decedent’s estate (the “Plaintiff”) then commenced multiple actions against the County of Erie (the “County”) and the Erie County Sheriff (the “Sheriff”) (collectively, “Defendants”) alleging, in relevant part, that Defendants’ negligence caused the decedent’s death. Before the trial court, Plaintiff and Defendants both moved for summary judgment. The trial court denied both motions. On appeal of the denials, the Appellate Division, Fourth Department affirmed the denial of Plaintiff’s motion, but reversed the denial of Defendants’ motion, granted Defendants’ motion, and dismissed Plaintiff’s complaints against Defendants. The Fourth Department reasoned that Plaintiff could not demonstrate that Defendants, who are municipalities or municipal arms, owed the decedent a special duty. Plaintiff appealed to New York’s highest court.

The New York Court of Appeals affirmed the Fourth Department’s decision.[12] The Court found none of the three special-duty circumstances in the record. As to the first (statutory duty), the Court found it unpreserved for appellate review, but noted that, assuming its preservation, it would still fail. For the alleged statutory duty, Plaintiff relied on Social Services Law section 473(3). However, the Court found this statute inapplicable as it failed to provide any actionable special duty. The Court also declined application of the second special-duty circumstance (voluntary assumption) because Plaintiff failed to demonstrate any evidence in support. The Court explained that, to be applicable, the voluntary assumption circumstance requires a four-part showing:

(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.[13]

Specifically, the Court held that Plaintiff failed to demonstrate any evidence of “justifiable reliance.” The evidence demonstrated that neither the decedent, nor the decedent’s brother, justifiably relied on CPS or APS investigations and conclusions as to “forego other avenues of relief.” Even after the CPS and APS investigations, the decedent’s brother allegedly continued voicing concerns to the County requesting further investigation. The Court also found that there was no “justifiable reliance” on any conduct by the Sheriff. Nor did the Court find Plaintiff’s arguments under the third special-duty circumstance appealing.

The Court also declined Plaintiff’s argument that the special duty doctrine should be done away with and/or modified in cases where the harmed individual “is a child or an adult of diminished capacity.” Although the Court seemed to recognize the harsh result warranted by the special duty doctrine, especially where “vulnerable victims” face “difficulty” in satisfying it, the Court explained its belief that the special duty doctrine properly balanced the competing public-policy interests and was sufficiently flexible to accommodate extreme cases.[14]

Notably, the Maldovan decision was not unanimous. Judge Wilson authored a lengthy dissent wherein he argued, among other things, that the special duty doctrine did not warrant dismissal of Plaintiff’s complaints and, if so, the special duty doctrine should be modified.

For now, based on the majority’s decision in Maldovan, it appears that municipalities will continue to benefit from the protections of the special duty doctrine against negligence claims. As such, litigators defending municipalities against negligence claims should add Maldovan to their arsenal. Litigators in opposition should look to Judge Wilson’s dissent which, although not law, provides a potential road map for overcoming the special duty doctrine in extreme cases.

[1] See Maldovan v. Cnty. of Erie, 2022 WL 17095561 (N.Y. Nov. 22, 2022).

[2] See Ferreira v. City of Binghamton, 38 N.Y.3d 298, 308–10 (2022).

[3] Tara N.P. v Western Suffolk Bd. of Coop. Educ. Servs., 28 NY3d 709, 714 (2017) (internal quotation marks omitted).

[4] Notably, federal courts presiding over section 1983 claims against municipalities also require the breach of a “special duty.”  See, e.g., DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 197 (1989).

[5] McLean v. City of New York, 12 N.Y.3d 194, 204 (2009) (citing Laratro v. City of New York, 8 N.Y.3d 79, 82 (2006)).

[6] Maldovan v. Cnty. of Erie, 2022 WL 17095561, at *1 (N.Y. Nov. 22, 2022) (quoting Laratro, 8 N.Y.3d at 82).

[7] See Motyka v. City of Amsterdam, 15 N.Y.2d 134, 139 (1965).

[8] See, e.g., Schuster v. City of New York, 5 N.Y.2d 75, 82 (1958).

[9] Howell v. City of New York, 2022 WL 17096862, at *3 (N.Y. Nov. 22, 2022) (quoting Kircher v. City of Jamestown, 74 N.Y.2d 251, 257 (1989); Lauer v. City of New York, 95 N.Y.2d 95, 103 (2000)).

[10] Howell, 2022 WL 17096862, at *3 (quoting McLean, 12 N.Y.3d at 204; Lauer, 95 N.Y.2d at 105); see, e.g., Maldovan, 2022 WL 17095561, at *1; Howell, 2022 WL 17096862, at *3; Ferreira, 38 N.Y.3d at 315; Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 432 (2013); Metz v. State, 20 N.Y.3d 175, 177 (2012).

[11] See 2022 WL 17095561, at *1.

[12] Maldovan, 2022 WL 17095561, at *2.

[13] Id.

[14] See id. at *4.