New York Law Review

Tag: Special Duty

  • Tara N.P. v. Western Suffolk Board of Cooperative Educational Services, 27 N.Y.3d 711 (2016): Establishing a Special Duty is Required for Municipal Liability in Governmental Capacity

    27 N.Y.3d 711 (2016)

    A municipality is not liable for negligence committed while performing a governmental function, unless the municipality owed a special duty to the injured party.

    Summary

    Tara N.P. sued Suffolk County for negligence after she was sexually assaulted by a worker referred to a facility where she attended classes through the County’s “welfare to work” program. The New York Court of Appeals held that the County was acting in a governmental capacity when referring the worker and did not owe Tara N.P. a special duty. The Court found the County’s actions were part of a governmental function and did not meet the requirements for a special duty, specifically the lack of direct contact and justifiable reliance by the plaintiff. Therefore, the County was not liable for the assault.

    Facts

    Suffolk County operated a “welfare to work” program (SWEP). The County referred Larry Smith, a known sex offender, to a facility operated by North Amityville Community Economic Council (NACEC) for a maintenance position, despite NACEC’s policy against hiring individuals with criminal records. Smith sexually assaulted Tara N.P. at the facility. N.P. sued the County, arguing its negligence in referring Smith caused her injuries.

    Procedural History

    The trial court denied the County’s motion for summary judgment. The Appellate Division reversed, granting summary judgment to the County based on governmental immunity, holding the County acted in a governmental capacity and did not assume a special duty to the plaintiff. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the County was acting in a governmental or proprietary capacity when it referred Smith to NACEC?

    Whether, assuming the County acted in a governmental capacity, the County owed a special duty to Tara N.P. that would allow the County to be liable for Smith’s actions?

    Holding

    Yes, the County was acting in a governmental capacity because it was operating a “welfare to work” program.

    No, the County did not owe a special duty to Tara N.P., because the requirements of a special duty were not met.

    Court’s Reasoning

    The Court first determined whether the County was acting in a governmental or proprietary capacity. The Court found that the County’s referral of Smith was part of its operation of the SWEP program, a governmental function “undertaken for the protection and safety of the public pursuant to the general police powers.” As such, the Court held that the County was performing a governmental function. The Court distinguished this from a proprietary function where the government’s activities substitute for private enterprises. The Court found no evidence to suggest the County assumed the role of a private landlord in this case.

    Having established the County acted in a governmental capacity, the Court addressed whether the County owed Tara N.P. a “special duty.” The Court explained that to “sustain liability against a municipality, the duty breached must be more than that owed the public generally.” A special duty arises when (1) a statute protects the plaintiff’s class, (2) the government voluntarily assumed a duty beyond that owed to the public, or (3) the municipality took control of a dangerous condition. Only the second situation was at issue here. The Court cited Cuffy v. City of New York to explain the four elements of this special relationship: “(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.” The Court found that the last two elements were not met because there was no direct contact between Tara N.P. and the County, and she did not justifiably rely on the County’s actions. The Court stated that because there was no direct contact or justifiable reliance, the County had no special duty to N.P. and thus could not be held liable for Smith’s actions.

    Practical Implications

    This case reinforces that municipalities performing governmental functions are generally immune from liability for negligence unless a special duty is established. Attorneys must carefully analyze whether a municipality’s actions constitute a governmental or proprietary function. The case underscores the strict requirements for proving a “special duty,” particularly the need for direct contact between the injured party and the municipality, and the party’s justifiable reliance on the municipality’s actions. This decision will guide the analysis of similar negligence claims against municipalities, especially those involving social services programs or other governmental activities. Lawyers need to emphasize the lack of direct contact and justifiable reliance of the injured party on the municipality’s promises or actions to defeat a negligence claim.

  • Applewhite v. Accuhealth, Inc., 20 N.Y.3d 412 (2013): Governmental Function & Special Duty in Municipal Emergency Response

    Applewhite v. Accuhealth, Inc., 20 N.Y.3d 412 (2013)

    When a municipality provides ambulance service through EMTs responding to a 911 call, it performs a governmental function and can only be liable if it owed a “special duty” to the injured party.

    Summary

    This case addresses whether a municipality is liable for negligence when its EMTs respond to a 911 call. Tiffany Applewhite suffered anaphylactic shock, and her mother called 911. EMTs arrived but were not paramedics with advanced life support (ALS) capabilities. Tiffany’s mother allegedly requested the EMTs take her to a nearby hospital, but they waited for an ALS ambulance. Tiffany suffered brain damage. The New York Court of Appeals held that providing ambulance service is a governmental function, requiring a “special duty” for liability. The Court found triable issues of fact as to whether the EMTs assumed a special duty to Tiffany, precluding summary judgment for the City.

    Facts

    In 1998, Tiffany Applewhite experienced anaphylactic shock after a nurse administered medication. Her mother called 911 when Tiffany’s breathing worsened. Two EMTs from the New York City Fire Department arrived in a basic life support ambulance because no ALS ambulance was available. One EMT performed CPR while the other called for an ALS ambulance. Tiffany’s mother allegedly asked the EMTs to transport Tiffany to a nearby hospital. Paramedics from a private hospital arrived in an ALS ambulance, administered epinephrine, intubated her, gave her oxygen, and transported her to Montefiore Hospital. Tiffany survived but suffered serious brain damage.

    Procedural History

    Tiffany and her mother sued the nurse, her employer (Accuhealth), and the City of New York. The claims against Accuhealth and the nurse were resolved. The City moved for summary judgment, arguing governmental immunity and lack of proximate cause. Supreme Court granted the City’s motion. The Appellate Division reversed, finding triable issues on special duty and proximate cause. The Court of Appeals affirmed the Appellate Division.

    Issue(s)

    Whether the City was exercising a governmental or proprietary function when the EMTs initiated emergency care.

    Whether the City voluntarily assumed a “special relationship” with the plaintiffs beyond the duty owed to the general public.

    Holding

    Yes, the City was exercising a governmental function because providing ambulance service by EMTs responding to a 911 call is a core governmental responsibility.

    Yes, because the allegations raised a question of fact as to whether the EMTs assumed an affirmative duty and whether the mother justifiably relied on their actions, precluding summary judgment.

    Court’s Reasoning

    The Court reasoned that police and fire protection are quintessential governmental functions. Emergency medical services are a critical government duty. The court distinguished this case from medical services provided in hospital settings, which are akin to private, proprietary conduct. The Court stated that emergency medical services are “undertaken for the protection and safety of the public pursuant to the general police powers.” The court stated that “publicly-employed, front-line EMTs and other first responders, who routinely place their own safety and lives in peril in order to rescue others, surely fulfill a government function…because they exist ‘for the protection and safety of the public’ and not as a ‘substitute for…private enterprises’.”

    To establish a special duty, the plaintiff must prove: ” ‘(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.’ ”

    The Court found a question of fact as to whether the EMTs assumed an affirmative duty by deciding to await ALS paramedics rather than transport Tiffany to the nearby hospital, after being asked to take her to the hospital by her mother. The court also found a question of fact concerning justifiable reliance. The Court stated, “Plaintiffs are therefore entitled to show how the EMTs’ statements or “conduct deprived [plaintiffs] of assistance that reasonably could have been expected from another source”.

    The court also cited public policy concerns. The cost of tort recoveries would be excessive for taxpayers, and liability could dissuade municipalities from maintaining emergency services.

  • Dinardo v. St. John the Baptist Diocesan High School, 15 N.Y.3d 863 (2010): Special Duty and Governmental Discretion

    Dinardo v. St. John the Baptist Diocesan High School, 15 N.Y.3d 863 (2010)

    A special duty cannot be established when the governmental action is discretionary, even if a special relationship exists between the plaintiff and the municipality.

    Summary

    In Dinardo v. St. John the Baptist Diocesan High School, the New York Court of Appeals addressed the question of municipal liability based on a special duty. The plaintiff, a teacher, sought damages for injuries sustained when a student with known behavioral problems attacked her. She argued that the school board had a special duty to protect her due to their awareness of the student’s dangerous behavior and assurances that action was being taken. The Court of Appeals reversed the lower court’s decision, holding that the school board’s actions were discretionary and therefore, not subject to liability, despite the potential existence of a special relationship. This decision highlights the limitations on municipal liability and the importance of distinguishing between discretionary and ministerial actions.

    Facts

    The plaintiff, a teacher, experienced increasing behavioral problems from a student, including the student bringing a knife to school, resulting in a suspension. The plaintiff and her supervisor recommended the student’s removal from the classroom due to safety concerns. The recommendation was supported by documented instances of the student punching, kicking, and threatening classmates and teachers. The teacher repeatedly expressed her concerns about classroom safety to her supervisors. Her supervisors assured her that the situation was being addressed and told her to “hang in there.” While the transfer request was pending, the student injured the teacher.

    Procedural History

    The plaintiff sued the school board, alleging negligence. The lower court initially ruled in favor of the plaintiff. The Appellate Division affirmed that ruling. The New York Court of Appeals reversed the Appellate Division’s decision and dismissed the complaint.

    Issue(s)

    Whether a municipality can be held liable for negligence when its actions are discretionary, even if a special relationship exists with the injured party.

    Holding

    No, because government action, if discretionary, may never form the basis for tort liability, even if a special relationship exists between the plaintiff and the municipality.

    Court’s Reasoning

    The Court of Appeals relied on its prior decision in McLean v. City of New York, which established that discretionary governmental actions cannot be the basis for tort liability, even when a special relationship exists. The court reasoned that the decision of whether and when to transfer a potentially dangerous student is a discretionary act of the school board. Chief Judge Lippman, in his concurring opinion, disagreed with the majority’s conclusion that a jury could not find a special relationship, citing the repeated assurances given to the teacher. However, he concurred in the result due to the constraint of McLean. Lippman argued that McLean unreasonably narrows the special relationship exception. He stated, “Although I agree that liability should not generally attach when a municipal employee is exercising his or her reasoned judgment, the broad immunity recognized for discretionary acts should not extend to situations where a special relationship is present.” The court emphasized that almost any governmental act may be characterized as discretionary, broadly insulating government agencies from accountability. The dissent argued that the focus should be on whether the government, by its undertaking to the specific plaintiff, has gone above and beyond the general duty it owes to the public and created a unique relationship with that plaintiff, upon which he or she is entitled to rely.

  • duties owed to teachers

    [73 N.Y.2d 931, 537 N.E.2d 617, 539 N.Y.S.2d 291 (1989)]

    A school’s provision of security against attacks by third parties is a governmental function, and liability for negligence in performing that function requires a special duty of protection to the plaintiff.

    Summary

    A teacher injured by an intruder in a schoolyard sued the Board of Education, alleging negligence in security. The New York Court of Appeals reversed a judgment for the teacher, holding that providing security is a governmental function, not a proprietary one. Because the teacher failed to demonstrate a special duty owed to him by the Board of Education, the Board was not liable for negligence. The court emphasized that the teacher’s role in securing the gate was part of the school’s overall security system.

    Facts

    A New York City public school teacher, along with other teachers, was assigned to supervise a school playground. The playground, enclosed by a chain-link fence, had two gates. The teacher locked one gate but had to stand guard at the other because it was broken. He then broke up a fight and forcibly escorted one of the non-student participants out of the playground. The student returned with a baseball bat and injured the teacher.

    Procedural History

    The teacher sued the Board of Education, alleging negligence in security. A jury returned a verdict for the teacher, finding him 50% responsible, and awarded damages. The Appellate Division affirmed the judgment for the teacher. The Board of Education appealed to the New York Court of Appeals.

    Issue(s)

    Whether the Board of Education’s alleged negligence in providing security at the school playground constituted a proprietary function, for which the Board could be held liable, or a governmental function, which would require a showing of a special duty owed to the teacher.

    Holding

    No, because providing security against physical attacks by third parties is a governmental function involving policymaking, and no liability arises absent a special duty of protection. The teacher failed to establish that the Board of Education had assumed a special duty to him.

    Court’s Reasoning

    The court reasoned that the teacher’s claim was based on the inadequacy of the school’s security system, which is a governmental function. The court cited prior cases establishing that providing security against third-party attacks is a governmental function involving policymaking, and liability requires a special duty of protection. The court distinguished this case from situations involving proprietary functions, such as failure to repair steps. The court stated that the teacher’s station at the gate was part of the security system: “plaintiff’s own testimony established that his station at the schoolyard’s north gate was in accordance with prior instruction, for the security of the school children, when the gate could not be locked.” The court likened the situation to a failure to maintain a key control system, which would also be considered a governmental function related to overall security. The court emphasized it was deciding the case solely on the terms presented regarding governmental and proprietary functions.

  • Cuffy v. City of New York, 69 N.Y.2d 255 (1987): Establishing ‘Special Duty’ Exception for Municipal Liability

    Cuffy v. City of New York, 69 N.Y.2d 255 (1987)

    A municipality is not liable for failure to provide police protection unless a ‘special relationship’ exists between the municipality and the injured party, requiring a promise of protection, knowledge inaction could lead to harm, direct contact, and justifiable reliance on the promise.

    Summary

    The Cuffy case clarifies the ‘special duty’ exception to municipal immunity for failure to provide police protection. The Cuffys sued the City of New York after being injured in an altercation with their tenants, alleging the police had promised protection but failed to act. The Court of Appeals reversed the lower court’s decision, holding that while a promise of protection was made, the plaintiffs failed to demonstrate justifiable reliance on that promise that causally led to their injuries. The Court emphasized that continued reliance must be reasonable in light of unfolding events.

    Facts

    The Cuffys, landlords, had a history of disputes with their tenants, the Aitkinses, requiring multiple police interventions. On July 27, 1981, Eleanor Cuffy was physically attacked by Joel Aitkins. Joseph Cuffy sought police protection at the local precinct, telling Lieutenant Moretti he would move his family if an arrest was not made. Moretti assured Cuffy an arrest would be made the next morning. Cuffy, relying on this promise, instructed his wife to unpack their bags. The next evening, Ralston Cuffy (the Cuffys’ son) was attacked by Joel Aitkins, leading to a violent confrontation where Eleanor and Cyril Cuffy were also injured.

    Procedural History

    Eleanor, Cyril, and Ralston Cuffy sued the City, claiming a ‘special duty’ existed due to Moretti’s promise. The trial court awarded substantial damages to each plaintiff. The Appellate Division affirmed. The Court of Appeals reversed, dismissing the complaint.

    Issue(s)

    1. Whether the City of New York owed a ‘special duty’ to the Cuffys, such that it could be held liable for failing to provide adequate police protection.

    2. Whether the plaintiffs justifiably relied on the promise of police protection, and if so, whether that reliance caused their injuries.

    Holding

    1. No, because Ralston Cuffy lacked direct contact with the police, and Eleanor and Cyril Cuffy’s justifiable reliance on the promise of police protection had dissipated before the incident occurred.

    Court’s Reasoning

    The Court reiterated the general rule that municipalities are not liable for failure to provide police protection due to the duty being owed to the public at large. However, a ‘special relationship’ exception exists when: (1) the municipality assumes an affirmative duty to act; (2) the municipality knows inaction could cause harm; (3) there is direct contact between the municipality and the injured party; and (4) the injured party justifiably relies on the municipality’s undertaking.

    The Court found Ralston Cuffy’s claim failed because he had no direct contact with the police and was unaware of the promise of protection. Eleanor and Cyril Cuffy had the requisite direct contact as the promise was made for their protection. However, the Court found that their justifiable reliance ended by midday on July 28th when it became clear that the police would not act. The Court stated:

    “Although both of them knew or should have known by midday that the promised police action would not be forthcoming, they remained in the house hours after any further reliance on those assurances could reasonably be deemed justified.”

    Because their continued presence in the house after midday was not based on justifiable reliance, it broke the causal link between the promise and the harm. The Court emphasized that “the injured party’s reliance is as critical in establishing the existence of a ‘special relationship’ as is the municipality’s voluntary affirmative undertaking of a duty to act.” This reliance element provides the crucial causal connection between the municipality’s ‘special duty’ and the alleged injury. The Court concluded that because justifiable reliance was not causally related to their injuries, the ‘special duty’ doctrine did not apply, and the City was not liable.

  • Gandolfi v. City of Yonkers, 62 N.Y.2d 995 (1984): Municipal Liability for Negligent Building Permits and Inspections

    62 N.Y.2d 995 (1984)

    A municipality can be held liable for damages proximately caused by its negligence in issuing a building permit or conducting inspections, where the municipality’s actions violate a special duty owed to the injured party.

    Summary

    This case addresses the liability of municipalities for negligence related to building permits and inspections. Plaintiffs sued the City of Yonkers and Westchester County, alleging negligence in issuing a building permit and conducting inspections that led to property damage. The Court of Appeals affirmed the lower court’s decision, holding that municipalities can be held liable for negligence in these areas when a special duty is owed to the injured party, thus establishing a precedent for municipal accountability in construction oversight where a specific duty of care is violated.

    Facts

    The plaintiffs, Valentino Gandolfi et al. and Platzner Organization et al., brought actions against the City of Yonkers, Westchester County, and the Commissioner of Finance of Westchester County, respectively. The suits stemmed from alleged negligence in the issuance of a building permit and the performance of inspections. The plaintiffs claimed that this negligence resulted in property damage and other losses.

    Procedural History

    The Supreme Court initially heard the case. The Appellate Division, Second Department, reversed the Supreme Court’s decision, finding in favor of the plaintiffs and holding the municipalities potentially liable. The City of Yonkers and Westchester County appealed to the Court of Appeals. The Court of Appeals affirmed the Appellate Division’s decision, upholding the potential for municipal liability.

    Issue(s)

    Whether a municipality can be held liable for damages proximately caused by its negligence in issuing a building permit or conducting inspections.

    Holding

    Yes, because a municipality can be held liable for damages proximately caused by its negligence in issuing a building permit or conducting inspections, provided that the municipality’s actions or inactions violated a special duty owed to the injured party.

    Court’s Reasoning

    The Court of Appeals affirmed the decision of the Appellate Division for the reasons stated in the Appellate Division’s opinion. The core of the reasoning is that while municipalities generally owe a duty to the public at large, liability arises when a special duty is created toward a specific individual or class of individuals. This special duty can arise from specific promises or actions by the municipality that give rise to a reasonable expectation on the part of the individual. The court recognized that allowing such suits could create a chilling effect on municipal services but balanced this against the need for accountability where negligence directly and foreseeably harms specific individuals. The court implicitly acknowledged the importance of proper building oversight and the potential for significant harm if such oversight is negligently performed, thereby reinforcing the need for municipalities to exercise due care in these functions when a special relationship exists. This case emphasizes that liability is not automatic but depends on establishing a specific duty owed to the plaintiff beyond the general duty to the public.

  • Voss v. City of New York, 54 N.Y.2d 862 (1981): No Special Duty Owed to Teacher Under School Security Plan

    Voss v. City of New York, 54 N.Y.2d 862 (1981)

    A municipality’s adoption of a school security plan, mandated by state law, does not create a special duty of care to teachers, absent evidence the plan was specifically designed for their benefit beyond that of students, staff, and the general public.

    Summary

    Plaintiff, a teacher injured while intervening in a school fight, sued the City of New York, alleging negligence in failing to enforce a school security plan. The New York Court of Appeals reversed the Appellate Division’s order, dismissing the action. The Court held that the security plan, mandated by Education Law § 2801, created no special duty to teachers above that owed to the general school population. The plaintiff failed to demonstrate the plan was specifically designed for the teachers’ benefit, thus no governmental liability existed. The court distinguished the teacher’s role in implementing the plan from being a special beneficiary of it.

    Facts

    The plaintiff, an industrial arts teacher, was injured when he tried to stop a fight between students in the school hallway. The Board of Education had a security plan in place, as required by New York Education Law § 2801, to maintain order and safety on school property. The plaintiff argued the city was liable because it failed to adequately observe this detailed security plan. The security plan’s beneficiaries were students, teachers, staff, visitors, and other invitees.

    Procedural History

    The trial court’s decision is not mentioned. The Appellate Division’s order was appealed to the New York Court of Appeals. The Court of Appeals reversed the Appellate Division’s order and dismissed the action.

    Issue(s)

    Whether the adoption of a school security plan by the Board of Education, pursuant to Education Law § 2801, creates a special duty of care owed to teachers such that the City can be held liable for injuries sustained due to a failure to fully enforce the plan.

    Holding

    No, because the security plan was not designed or intended specifically for the benefit of teachers, placing them in the same position as students, other personnel, and members of the public. Therefore, no special duty existed that would allow the imposition of governmental liability.

    Court’s Reasoning

    The Court reasoned that, absent a special duty owed to the plaintiff, the City cannot be held liable for breaching a duty owed generally to the school population and the public, citing Glick v. City of New York, Bass v. City of New York, and Riss v. City of New York. The plaintiff attempted to distinguish his case from Glick, arguing that the security plan created a special relationship due to his role as a teacher. However, the court found no evidence that the plan was specifically designed or intended for the benefit of teachers. The Court rejected the argument that teachers were special beneficiaries simply because they had a role in implementing the plan. The court stated: “Nothing in the adoption or content of the plan warrants a finding that it was designed or intended specially for his benefit or that of other teachers in the school. They stood as its beneficiaries in exactly the same position as students, other personnel in the school system, and members of the public who came on the school property.” The Court emphasized that merely having responsibilities for implementing the plan does not automatically create a special duty. The Court concluded that the teacher’s role in implementation, without more, does not establish the condition precedent of a special duty required for governmental liability. The practical implication is that teachers, like other members of the public, cannot sue the city for negligence in enforcing a generally applicable security plan unless they can show the plan was specifically designed for their protection, distinguishing them from other beneficiaries.

  • Garrett v. Holiday Inns, Inc., 58 N.Y.2d 253 (1983): Municipal Liability for Negligent Issuance of Certificate of Occupancy

    Garrett v. Holiday Inns, Inc., 58 N.Y.2d 253 (1983)

    A municipality can be held proportionately liable to property owners for negligently issuing a certificate of occupancy despite the absence of a direct duty to injured third parties, if the municipality breached a special duty to the owners, leading to foreseeable harm.

    Summary

    Following a motel fire, the motel guests sued, among others, the Town of Greece. The town was dismissed from the primary suit because the plaintiffs alleged only a general duty owed to the public. The motel owners then filed a third-party complaint against the town, alleging negligence in approving building plans and issuing a certificate of occupancy despite known fire and safety violations. The New York Court of Appeals held that while the town owed no duty to the motel guests directly, it could still be proportionately liable to the motel owners if a special duty to them was breached, causing foreseeable harm.

    Facts

    An extensive fire occurred at the Holiday Inn in the Town of Greece, resulting in wrongful death, personal injury, and property damage claims by motel guests. The guests sued Holiday Inns, the developers, owners, and the Town of Greece. The claims against the town were based on its failure to enforce fire and safety laws and adequately inspect the motel’s construction. The original complaints against the town were dismissed because they alleged only a violation of a general duty owed to the public.

    Procedural History

    The remaining defendants (motel owners and lessee/operator) then filed third-party complaints against the Town of Greece, seeking contribution or indemnification. Special Term denied the town’s motion to dismiss the third-party complaints. The Appellate Division reversed, holding the town could not be liable to the third-party plaintiffs absent a duty owed to the original plaintiffs (motel guests). The motel owners appealed to the New York Court of Appeals.

    Issue(s)

    Whether a municipality, not owing a duty to injured motel guests, can be held proportionately liable to the motel owners and operator for breaching an independent duty owed to them regarding the issuance of a certificate of occupancy and approval of construction alterations.

    Holding

    Yes, because a municipality can be held proportionately liable to property owners if it breaches a special duty owed to them, leading to foreseeable harm, even if no direct duty was owed to the injured third parties.

    Court’s Reasoning

    The court reasoned that apportionment rights arise when tortfeasors share responsibility for an injury, violating respective duties to the injured party. However, the court emphasized that proportionate liability among tortfeasors is analytically distinct from the duties owed to the injured person. Citing Nolechek v. Gesuale, the court noted that a duty to prevent foreseeable harm could exist independently of a duty to the injured party. The court stated, “If an independent obligation can be found on the part of a concurrent wrongdoer to prevent foreseeable harm, he should be held responsible for the portion of the damage attributable to his negligence, despite the fact that the duty violated was not one owing directly to the injured person.”

    The court determined that municipalities can be liable for negligently exercising governmental functions when a special duty exists to the injured person, distinct from a general duty to the public. A special duty arises when a statute is enacted for the benefit of particular persons, a duty is voluntarily assumed and justifiably relied upon, or positive direction and control are assumed with a known, blatant, and dangerous safety violation. The court noted that the third-party complaints alleged known, blatant fire and safety code violations, yet the town approved building plan changes and issued a certificate of occupancy representing the premises as safe. If these allegations are proven, a basis for imposing liability on the town exists, potentially including economic damages suffered due to judgments in favor of the motel guests.

    The court distinguished the discretionary nature of granting or denying a building permit from the mandatory duty to refuse a certificate of occupancy when blatant code violations are known. The court concluded there was no basis for implied indemnification as the third-party complaints did not support the theory that the appellants were being cast in damages solely for the negligence of the town.