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Personal Injury Lawsuits and

Personal Injury Lawsuits and "Proprietary" Government

Personal injury lawsuits are always tricky when the defendant is a city or government agency. New York's Court of Appeals has found there is a clear distinction between “proprietary” and “governmental” functions when addressing negligence claims. “Proprietary” functions refer to any service provided by a local government as a substitute for the private sector. That is, it is not a function of the state's police power or general duty to protect the public. “As a general rule,” the Court of Appeals explained in a 2013decision, “the distinction is that the government will be subject to ordinary tort liability if it negligently provides 'services that traditionally have been supplied by the private sector'.”

Wittorf v. New York City

In anotherdecision, this one from June 2014, the Court of Appeals addressed the proprietary/governmental distinction in the context of a repair crew's failure to warn motorists about a hazard. The plaintiff here was riding her bicycle through New York City's Central Park. A crew from the city's Department of Transportation arrived earlier in the day to repair a reported “series of deep depressions in the westbound lane” of an underpass. The crew supervisor was placing traffic warning cones at the westbound entrance when the plaintiff asked if she could ride through. The supervisor said it was okay to do so. However, the plaintiff was injured when she struck the aforementioned underpass depressions, which were difficult to see from a distance.

Under municipal regulations, New York City is not liable for injuries caused by a road defect unless the city had at least 15 days notice, which was not the case here. But the plaintiff argued the city was liable for the supervisor's negligence in allowing her to enter the roadway when he knew there was a defect. A Manhattan Supreme Court jury agreed and held the city 60% liable for the plaintiff's injuries. The trial judge set aside the jury's verdict and dismissed the case, however, holding the supervisor was performing a “governmental” rather than “proprietary” function when he closed the road.

The Court of Appeals did not agree. It held that in this context, the supervisor was exercising a “proprietary” function. The crew was there to repair the road, not provide public safety. The supervisor's closing of the road was part of the repair job. If a private company owned the road and was performing maintenance, it would be liable under the “ordinary rules of negligence” for its employees' conduct. The same is true with respect to a city-owned road.

Holding City Hall Accountable

Although local governments enjoy many special privileges when it comes to civil litigation, they are not immune from ordinary negligence when exercising a proprietary function. If you have been injured as the result of such negligence, it is important you speak with a qualified New York personal injury attorney who can help assess your potential claim.Contact our office if you have any questions.

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