Court Decides If Marine Division Failed To Properly Exercise Special Duty to Boater
Frank Marino commenced an action to recover damages from the City of New York and the Fire Department for personal injuries he allegedly sustained when he came in contact with the propeller of a boat’s outboard motor while he was being rescued from the waters of Jamaica Bay by members of the FDNY’s Marine Division. The complaint alleged that, among other things, the City and the FDNY were negligent in permitting Marino to drift toward the boat’s outboard motor after throwing him a rope.
The City and the FDNY moved for summary judgment dismissing the cause of action alleging negligence. Marino opposed the motion and cross-moved for leave to amend the complaint. Supreme Court granted the motion and denied the cross-motion. Marino appealed.
When a negligence claim is asserted against a municipality, the first issue for a court to decide is whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose. If the municipality was engaged in a proprietary function, it is subject to suit under the ordinary rules of negligence. In contrast, a municipality will be deemed to have been engaged in a governmental function when its acts are undertaken for the protection and safety of the public pursuant to the general police powers. If the municipality was acting in a governmental capacity, then the plaintiff must prove the existence of a special duty as an element of his or her negligence cause of action.
Here, the City and the FDNY were acting in a governmental capacity when Marino was injured during the firefighters’ rescue operation. Since the City and the FDNY were acting in a governmental capacity, Marino was required to prove that they owed him a special duty. A special duty can arise, as relevant here, where the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally or the municipality took positive control of a known and dangerous safety condition. The elements of a special duty based upon voluntary assumption of a duty are: an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; knowledge on the part of the municipality’s agents that inaction could lead to harm; some form of direct contact between the municipality’s agents and the injured party; and that party’s justifiable reliance on the municipality’s affirmative undertaking. Of the four factors, the justifiable reliance element is particularly critical because it provides the essential causative link between the special duty assumed by the municipality and the alleged injury.
Here, the City and the FDNY demonstrated their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging negligence by establishing that they did not owe a special duty to Marino and he failed to raise a triable issue of fact in opposition. Marino’s submissions failed to establish that the City and the FDNY lulled him into a false sense of security, or induced him to forego other avenues of assistance, and therefore placed Marino in a worse position than he would have been had they never assumed the duty. And Marino’s submissions failed to establish that the City and the FDNY assumed positive direction and control in the face of a known, blatant, and dangerous safety violation. Accordingly, Supreme Court properly granted that branch of the City and the FDNY’s motion which was for summary judgment dismissing the cause of action alleging negligence.
And, since no special duty existed, Supreme Court properly denied Marino’s cross-motion for leave to amend the complaint.