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Cities Starting to Balk at Lawsuits

In March, a woman in Teaneck, N.J. called her local fire department because she smelled smoke in her house, but could not find fire anywhere. The fire department arrived and performed tests throughout the house to locate a source of the smoke; it also found nothing. A thermal imaging camera that could detect hot spots on walls was available to the firemen, but it was left in the truck.

Four hours after the fire department left, with the entire family asleep, fire broke out near the house’s basement wall and killed four children in the home.

If the Teaneck Fire Department were a private entity performing a private function, the liability case against it would be clear. It was informed of the smell of smoke in the house, it inspected the house for its source, located nothing and a fatal fire broke out shortly thereafter. A jury could easily reason that it had been negligent. However, the public status of fire departments makes such a case virtually impossible.

Police are sometimes prone to negligence suits by the people whom they are charged to protect. For example, when a court issues an order of protection for a battered woman, a police department can be sued for negligently failing to enforce it. Such was the case of Benita Morales, who successfully sued Nassau County, N.Y.

Morales approached the police, showed them an order of protection against her husband, told the police that her husband was in her car threatening to stab her with a knife and that he had a prior arrest warrant for violating the order of protection. The police assured her they would arrest her husband. Morales left the scene, and the police released her husband shortly afterward without arresting him. He tracked Morales down and stabbed her.

To succeed in a negligence suit against police, a plaintiff must demonstrate that the police had actual knowledge of the danger the plaintiff was in, and that the plaintiff must rely on the police for protection. These lawsuits almost always involve an order of protection, a stalking husband or boyfriend, and ongoing communication between a battered woman and her local police department.

The Teaneck fire and Morales cases are uncommon. The vast majority of lawsuits against municipalities are based on the more mundane "slip and fall" accident. As a general matter, government entities performing a government function are immune from tort liability for resulting harm. This leaves a surprising number of municipal activities prone to lawsuits, though. Across the country municipalities own golf courses, pools, sports fields, even shooting ranges, and all of these places have been the subject of successful negligence actions.

The distinction between a government function, which is immune from tort liability, and a proprietary function like the operation of a golf course, which is exposed to tort liability, is not always clear. Many courts have employed a revenue test to determine if a function is proprietary. If a municipal golf course is operated for profit, then a slip and fall on it can probably result in a meritorious lawsuit.

Less certain might be the case of a municipal school bus company that is marginally profitable. Increasingly this job is performed by private bus companies, but getting the kids to school is regarded by many to be a government function and in some parts of the country, kids wouldn’t get to school if it were not for busing.

There was a time when governments, even local governments, enjoyed sovereign immunity. Most have volunteered to be held liable for their negligence through passage of tort claims acts, and the result has been tens of millions in settlements of slip and fall injuries for a City like New York.

Plaintiffs in cases like these must demonstrate that the city was on notice of the dangerous condition on which they fell before the accident happened. To that end, the plaintiff’s bar has created the Big Apple Pothole and Sidewalk Protection Committee, which employs a mapmaking company to constantly patrol the city’s thousands of miles of streets, mark all dangerous conditions on a map, and send it to the city so that it has actual notice of all defects.

Municipalities like New York seem to have had enough, though. The same city that voluntarily gave up its sovereign immunity is now trying to escape at least part of the resulting liability. The city just enacted a Section 7-210 of its administrative code, which shifts the entire liability for maintenance of the city-owned sidewalk from the city to the owners of abutting private property.

It’s estimated that the law will save the city $33 million in its first year alone.

Matt Hayes began practicing immigration law shortly after graduating from Pace University School of Law in 1994, representing new immigrants in civil and criminal matters. He is the author of the soon-to-be-published "The New Immigration Law and Practice."

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