The King Can Do No Wrong. But Then Again …

by Wilson Elser

At common law, municipalities were immune from liability in tort for the misfeasance of their officers and employees. This principle of “sovereign immunity” was often summed up by the phrase, “The King can do no wrong.” Sovereign immunity was not merely a defense to liability, it was a true immunity.

In New York, sovereign immunity was surrendered in 1929 with the enactment of former section 12-a, now section 8, of the Court of Claims Act (N.Y. Court of Claims Act, 8(a) (McKinney’s 1989); Bernardine v. City of New York, 294 N.Y. 361, 365 (1945). Nevertheless, in negligence actions municipal liability is still conditioned and limited in several important respects. One such limitation is the notice of claim provisions contained in most states’ general municipal laws, including the laws of New York, which require a claimant to notify the municipality of a claim within a period of time, typically 90 days, following the event on which it is based. N.Y. Gen. Mun. Law §§ 50-e, 50-I (McKinney’s 2013).

In New York, there is also a “judge-made” doctrine of municipal immunity that, notwithstanding the general waiver of sovereign immunity, limits municipal liability in negligence cases. This doctrine, along with certain exceptions, was developed in cases alleging the negligent failure to provide police protection as well as in cases alleging negligent acts or omissions generally. In this first part of a two-part blog, we will look at the development of the municipal immunity defense in New York.

In the police protection context, the general rule was simple – notwithstanding the waiver of sovereign immunity, a municipality cannot be held liable for the negligent performance of police protection. There is an important exception: If the plaintiff could establish a “special relationship” with the police, then the defense of municipal immunity would not apply and the plaintiff could pursue the negligence claim. In 1987, in Cuffy v. City of New York, 69 N.Y.2d 461 (1985), New York’s highest court developed a four-part test to determine whether a special relationship existed. Generally, to avoid the defense a plaintiff has to prove that (1) the police assumed a duty directed at the plaintiff, (2) the police were aware that inaction could lead to serious harm, (3) the plaintiff relied on the police promise, and (4) there was some form of direct contact between the plaintiff and the police.

In the non-police protection context, the judge-made defense of municipal immunity developed on a different track. Its applicability turned on whether the act in question was deemed “discretionary” or “ministerial.” When a municipal official performed a discretionary act, one that involves the exercise of judgment and could lead to more than one acceptable result, the municipality would not be liable, even if the act were performed negligently and with injurious result (Tango v. Tulevich, 61 N.Y.2d 198 (1983). On the other hand, the negligent performance of a ministerial act, one that involves direct adherence to a governing standard with a compulsory result, could expose the municipality to liability in negligence.

Interestingly, these two lines of cases appeared to have been merged by the Court of Appeals in the 2009 decision in McLean v. City of New York, 12 N.Y.3d 194 (2009). McLean did not involve a claim for negligent police protection but rather an allegation that New York City had negligently issued a license to a daycare center.  The Court rejected application of the “special relationship” test and stated, in terms suggesting applicability to police protection cases as well, that the discretionary versus the ministerial function-based test should determine whether the defense of municipal immunity applies.

Arguably, if this standard were to apply to police protection cases, it would dramatically expand the defense of municipal immunity because the provision of police services is almost always a discretionary function. And, indeed, in a case decided later in 2009, Dinardo v. City of New York, 13 N.Y.3d 827 (2009), the Chief Judge of the Court in a concurring opinion openly questioned whether McLean had artificially elevated the ministerial/discretionary distinction to an importance it was never meant to have. In his view: “because almost any governmental act may be characterized as discretionary, McLean too broadly insulates government agencies from being held accountable to injured parties.”

Is the “special relationship” test a dead letter in New York law? Have New York courts attempted to gloss over McLean or even ignore it altogether? To be continued.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Wilson Elser | Attorney Advertising

Written by:

Wilson Elser

Wilson Elser on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.