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The Governmental Function Immunity Defense of Municipalities in Personal Injury Cases

The Criteria for Governmental Immunity Defense

In order to raise the defense of a governmental immunity, it is incumbent upon the municipal defendant to meet two criteria:

  1. Governmental Entity - First, it must be established that the defendant is an actual governmental entity, which includes New York (or any other State) and its subdivisions and agencies, municipal corporations, district corporations and public benefit corporations. 

  1. Proprietary or Governmental Capacity - Secondly, it must be determined whether the governmental defendant was acting within its proprietary or governmental capacity when it allegedly caused the injury to the plaintiff.

Examples of proprietary function include owning and renting property, providing medical care and owning and operating a school. Governmental functions include providing for public safety, such as police and firefighting services, issuing building permits, performing inspections for public safety, and garbage collection.

Typically, the courts will seek to determine whether the act or omission arose from the governmental function as opposed to a proprietary function in order to determine whether the defense will apply.

If it is established that the alleged negligent act or omission was the product of a governmental function, the governmental defendant will stand in the same position as a private defendant.

In many cases the courts will first look to determine whether the governmental defendant owed a duty to the plaintiff before the courts will attempt to determine if this defense is even available to the defendant.  In that case, the plaintiff must be owed a special duty that is beyond the general duty owed to the public at large.  In order to establish that the plaintiff is owed a special duty, the courts will determine if a statute created a particular class of persons with special entitlements and whether:

  1. The plaintiff fits that class;
  2. The government voluntarily assumed a duty to a private party who then justifiably relied upon proper performance of that duty; or
  3. A governmental official assumed direction or control of a known blatant, dangerous safety violation.

Ministerial vs. Discretionary

Finally, the plaintiff must prove that the governmental act or omission was ministerial rather than discretionary as discretionary actions are entitled to the defense, whereas ministerial actions may not satisfy the court’s request for the defense to stand.

If it is established that the governmental actor had discretion but did not exercise that discretion, there is no governmental immunity.

This area of law is very fact specific and requires a careful analysis.  But if a case is prepared properly, the municipal defendant may be in a position to extricate itself from the lawsuit.



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