Tiffany Applewhite,, et al., Respondents,v.Accuhealth, Inc., et al., Defendants, City of New York, Appellant.BriefN.Y.January 7, 2013TO BE SUBMITTED Court of Appeals State of New York TIFFANY APPLEWHITE an infant under the age of 14 years by her mother and natural guardian SAMANTHA APPLEWHITE and SAMANTHA APPLEWHITE individually PlaintiffsRespondents against ACCUHEALTH INC and LINDA RUSSO RN Defendants and EMERGENCY MEDICAL SERVICE AND THE CITY OF NEW YORK DefendantsAppell PROPOSED BRIFFOF THE NEW YORK STATE CONFERENCE OF MAYORS AND MUNICIPAL OFFICIALS AS AMICUS CURIAE NEW YORK STATE CONFERENCE OF MAYORS AND MUNICIPAL OFFICIALS 119 Washington Avenue Albany New York 12210 Telephone 518 4631185 John A Mancini Of Counsel Bronx County Index No 222341998 TABLE OF CONTENTS TABLE OF CONTENTS 2 TABLE OF AUTHORITIES 3 PRELIMINARY STATEMENT 4 INTEREST OF THE AMICUS CURIAE 4 STATEMENT OF FACTS 5 ARGUMENT 6 POINT I 6 ABANDONING THE LONGHELD STANDARD THAT THERE CAN BE NO LIABILITY AGAINST A MUNICIPALITY WITHOUT THE PLAINTIFF DEMONSTRATING THAT A SPECIAL DUTY WAS OWED TO THAT PERSON WOULD EXPOSE LOCAL GOVERNMENTS AND THE STATE TO AN AVALANCHE OF LITIGATION AND POTENTIAL LIABILITY STRESSING MUNICIPAL AND STATE RESOURCES THAT ARE ALREADY STRETCHED TO THE BREAKING POINT 6 POINT II 8 JUDGMENT AGAINST THE DEFENDANTS COULD HAVE A TREMENDOUS CHILLING EFFECT ON OTHER MUNICIPALITIES ACROSS THE STATE THAT PROVIDE ONSCENE EMERGENCY MEDICAL SERVICES AS WELL AS POLICE AND FIRE PROTECTION 8 POINT HI 9 MUNICIPAL EMERGENCY RESPONDERS SHOULD NOT HAVE TO FEAR LIABILITY WHEN EXERCISING THEIR PROFESSIONAL JUDGMENT 9 CONCLUSION 11 2 TABLE OF AUTHORITIES Cases Arias v City of New York 22AD3d 436 2 Dept 2005 10 Cuffy v City of New York 69NY2d 255 1987 7 Laratro v City of New York 8 NY3d 79 2006 7 8 Mon v City of New York 78 NY2d 309 1991 9 Valdez v City of New York 18 NY3d 69 2011 5 6 7 Other Authorities Office of the State Comptroller New Yorks Cities An Economic and Fiscal Analysis 2012 at wwwosc state ny us localgovpubsfiscalmonitoringpdfnycreport2012pdf 9 Press Release Office of the New York State Comptroller Thomas P DiNapoli DiNapoli Proposes Early Warning System To Identifj Local Governments in Fiscal Stress wwwscstatnuspre sreleasespt 1 20924 12htm 8 3 PRELIMINARY STATEMENT The New York State Conference of Mayors and Municipal Officials respectfully submits this memorandum of law amicus curiae in support of Defendants Appellants Emergency Medical Service and the City of New York which seeks a ruling from the Court of Appeals reversing the Appellate Divisions decision to reinstate the complaint against the City of New York Sound public policy dictates that there can be no liability against a municipality for negligence without a showing that a special duty was owed to an individual The record in this case establishes that no special duty was owed to the plaintiff beyond what is owed to the public in general INTEREST OF THE AMICUS CURIAE The Conference of Mayors is a notforprofit voluntary membership association whose members include 58 of the States 62 cities and 524 of the States 550 villages thereby representing the overwhelming majority of such municipalities This case involves a matter of statewide concern to all cities and villages The decision of the Appellate Division is contrary to sound public policy and if upheld will expose municipalities that provide on scene police fire and emergency medical response services to greater liability The Supreme Court was correct when it granted the defendants motion for summary judgment noting that no special duty existed in this matter The Supreme Court further opined thatgovernmental agencies such as the Ambulance Services owe a duty to the public generally and not individually This brief argues that the Appellate Division erroneously reinstated the complaint against the defendants It is well established under the public duty rule which is outlined in Valdez v 4 City of New York 18 NY3d 69 2011 that a municipality owes a general duty to the public at large to furnish police protection and this does not create a duty of care running to a specific individual sufficient to support a negligence claim unless the facts demonstrate that a special duty was created This brief will argue that no special duty was owed to the plaintiff in this case and that the defendants acted reasonable under the circumstances Furthermore this brief will argue that to decide against the defendants and thus abandoning the established standard of liability would throw open the flood gates of negligence claims against municipalities that provide onscene emergency medical services to correct similarly situated plaintiffs If the Appellate Divisions decision is upheld this new heightened standard of liability against local governments could force fiscally stressed municipalities that have no obligation to provide municipal emergency medical services to discontinue those services STATEMENT OF FACTS The Conference of Mayors adopts the statement of facts presented by Plaintiffs Appellants 5 ARGUMENT POINT I ABANDONING THE LONGHELD STANDARD THAT THERE CAN BE NO LIABILITY AGAINST A MUNICIPALITY WITHOUT THE PLAINTIFF DEMONSTRATING THAT A SPECIAL DUTY WAS OWED TO THAT PERSON WOULD EXPOSE LOCAL GOVERNMENTS AND THE STATE TO AN AVALANCHE OF LITIGATION AND POTENTIAL LIABILITY STRESSING MUNICIPAL AND STATE RESOURCES THAT ARE ALREADY STRETCHED TO THE BREAKING POINT As a general rule unless specified in a charter municipalities have no affirmative obligation to provide on scene municipal emergency medical services to the public However in many municipalities across the State onscene municipal emergency services are a critically important service which residents rely on As the population continues to age and life expectancies rise municipal emergency services will play an increasingly important role in the fabric of our communities For this reason the policy of our State should be to encourage municipalities to provide this important governmental function To expand the liability standard against municipalities may force municipalities to forgo providing onscene emergency medical services However New Yorks Courts have long recognized that there can be no liability against a municipality for negligence without the plaintiff demonstrating that a specific duty was owed to that person Valdez v City of New York 18 NY3d 69 2011 Stated differently under the public duty rule although a municipality owes a general duty to the public at large to furnish police protection this does not 6 create a duty of care running to a specific individual sufficient to support a negligence claim Valdez Furthermore this court has established that providing emergency medical services is a governmental function Laratro v City of New York 8 NY3d 79 2006 In Laratro the Court correctly opined Protecting health and safety is one of municipal governments most important duties Since municipalities are run by human beings they sometimes fail in that duty with harmful even catastrophic consequences When that happens as a general rule the municipality is not required to pay damages to the person injured The rationale for this rule is that the cost to municipalities of allowing recovery would be excessive the threat of liability might deter or paralyze useful activity and thus the net result of allowing recovery would be to make municipal governments less not more effective in protecting their citizens This Court further recognized in Cuffy v City of New York 69 NY2d 255 1987 a narrow right to recover from a municipality for its negligent failure to provide police protection where a promise of protection was made to a particular citizen and as a consequence a special duty to that citizen arose Essential to recovery is proof that the plaintiff relied on the promise and that his reliance was causally related to the harm he suffered The facts of this case fail to establish the type of promise of protection or service required by Cuffy and as such no special duty ran to the plaintiff beyond what is owed to the public generally Failure to dismiss this case would establish a new standard not previously recognized by the courts It would also create chaos in our court system by litigants looking to stick their hands into the deep pockets of local governments Court resources would be overburdened by the avalanche of lawsuits that would come rushing in if this Court fails to dismiss this claim As a result this case should be dismissed in its entirety To hold otherwise would indeed make government an insurer of tragic events a cost which neither the State of New York or its local governments can fund 7 POINT II JUDGMENT AGAINST THE DEFENDANTS COULD HAVE A TREMENDOUS CHILLING EFFECT ON OTHER MUNICIPALITIES ACROSS THE STATE THAT PROVIDE ONSCENE EMERGENCY MEDICAL SERVICES AS WELL AS POLICE AND FIRE PROTECTION Because the financial consequences of upholding the Appellate Divisions new standard would be severe it is also important to recognize the potential reaction by local governments if this Court were to rule against the defendants and find them negligent in their onscene response As this Court correctly opined in Laratro the threat of liability might deter or paralyze useful activity and thus the net result of allowing recovery would be to make the municipality less not more effective in protecting its citizens In an era when the State continues to impose unfunded mandates on local governments creating an unsustainable structure of revenues and expenses the Courts should exercise a conservative approach when considering whether to expand the liability to which local governments are exposed The Court is undoubtedly aware of the fiscal stress currently facing our States municipalities New York State Comptroller Thomas P DiNapoli recently warned thatcities are struggling to keep their heads above water He continued elaborating thatthe fiscal challenges they face have evolved over many years and are systemic Press Release Office of the New York State Comptroller Thomas P DiNapoli DiNapoli Proposes Early Warning System To Identify Local Governments in Fiscal Stress wwwosc stateny us pressreleasesseptl2092412htm Moreover in a report highlighting the fiscal peril New Yorks local governments are facing the Comptroller warned that the current fiscal crunch is a product of longterm and systemic factors and will intensify if local elected 8 leaders are unable to identify or implement acceptable solutions Office of the State Comptroller New Yorks Cities An Economic and Fiscal Analysis 2012 at wwwosc state nyuslocalgovpubs fiscalmonitoringpdfnycreport2012pdf In addition the Comptrollers report cautioned that some cities are likely to be confronted with current year deficits that if left unaddressed could lead to difficulty in continuing normal operations emphasis added As a result local governments are closely scrutinizing every budget line and eliminating services when necessary in order to hold the line on taxes The current state of fiscal stress is further magnified by the States 2 property tax cap Consequently it is not beyond the realm of possibilities that if this court fails to reverse the Appellate Divisions determination many municipalities will determine that the financial risk of liability is not worth the benefit of providing on scene municipal emergency medical and will as a result cease providing these services altogether Moreover it is clear that upholding the Appellate Divisions lower standard of liability will expose local governments to a heightened level of liability not only for emergency medical response services but also for police and fire services POINT III MUNICIPAL EMERGENCY RESPONDERS SHOULD NOT HAVE TO FEAR LIABILITY WHEN EXERCISING THEIR PROFESSIONAL JUDGMENT The employees and officers who provide emergency medical services should not have to fear potential liability when making splitsecond life or death decisions As a general rule this Court has held that when official action involves the exercise of discretion or expert judgment in policy matters and is not exclusively ministerial a municipal defendant generally is not answerable in damages for the injurious consequences of that action Mon v City of New York 78 NY2d 309 1991 This Court further highlighted that position in Mon when it reasoned that 9 whether absolute or qualified this immunity reflects a value judgment that despite injury to a member of the public the broader interest is having government officers and employees free to exercise judgment and discretion in their official functions unhampered by fear or second guessing and retaliatory lawsuits outweighs the benefits to be had from imposing liability for the injury Municipal emergency medical professionals work under stressful conditions that require them to make splitsecond determinations This is the case not only for emergency medical responders but for police and fire as well New Yorks Courts have consistently held that as a matter of State policy municipal officials should not be burdened with the threat of liability for the discretionary decisions made in their official capacities Much like in Arias v City of New York 22 AD3d 436 2 Dept 2005 the record in this case fails to establish that the actions of the on scene emergency services personnel were inconsistent with acceptable professional practice Therefore sound public policy should encourage municipal officials to provide police fire and emergency medical services to their residents without fear of tort liability in unfortunate circumstances 10 CONCLUSION For the foregoing reasons the Amicus respectfully requests that this Court reverse the Appellate Divisions decision and dismiss the complaint in its entirety The record in this case establishes that no special duty of care was owed to the plaintiff and to hold otherwise would be contrary to sound public policy Dated Albany New York March 26th 2013 Respectfully Submitted John A Mancini Counsel to the New York State Conference of Mayors and Municipal Officials 119 Washington Avenue Albany New York 12210 Telephone 518 463 1185 11