Written by: Jesse Minc Portrait Jesse Minc
Flag Of USA

When a municipality – a term for any governmental agency and certain types of  government-run organizations – or its agents are negligent and cause harm, it is not a foregone conclusion that they will be subject to the same liabilty rules that govern private people and organizations.  The government can, in many cases, assert a defense by claiming that it is immune from suit because of the nature of what occurred.  The question of whether a municipality is indeed immune from suit in a particular case is always a very complicated one, requiring extremely skilled lawyering,  deep comprehension of difficult legal concepts and careful preparation of a case to answer favorably for an injured person.   In this article, I discuss certain concepts that apply in certain cases; however, there are other contexts in which the governmental immunity defense may apply, and you should ask your personal injury lawyer about those when discussing your case.


In context of a personal injury lawsuit, an attorney must craft a case to address all of the following elements of the governmental immunity defense.  Failing to recognize that these issues will impact the case from the beginning can be fatal to your personal injury case; if any of these elements is not addressed, a judge may dismiss your case and your right to recovery for your injuries can be lost forever.

Governmental or Proprietary Function:  The question of whether or not governmental immunity will apply at all begins by asking whether the acts regarding which negligence is alleged were “governmental” or “proprietary” in nature.

  • Governmental acts are those that are undertaken by the government pursuant to its general police power (i.e., pursuant to its general authority to govern and provide services); they are acts that the government does to the exclusion of private citizens or organizations.  An example of a governmental act is the provision of police protection on the streets and the answering of 911 calls.  If you bring a lawsuit alleging that the government was negligent in connection with such an activity, immunity may apply.
  • Proprietary acts are actions that the government takes in context of an activity that is not traditionally considered to be exclusively within the domain of the government.  An example of a proprietary act is the provision of medical care in public hospitals.  If you bring a lawsuit alleging that the government was negligent in connection with such an activity, immunity will not apply.

Discretionary or Ministerial:  The government has absolute immunity from suit for negligence where it can show that the acts in which it or its agent was engaged was “discretionary,” rather than “ministerial.”  For example, the government is absolutely immune from suit if your attorney alleges that its policies for the provision of the number of ambulances needed to respond to a 911 call were inadequate and that agents of the government, in correctly performing the administration of these policies, caused someone harm as long as the policy was reasonable.  However, the government is not absolutely immune from suit if your attorney alleges that the government was negligent because an ambulance driver accepted an assignment to respond to a 911 call but then failed to act on that acceptance and did not cancel their acceptance to allow another ambulance driver to accept the call and respond to the emergency, and in so doing deprived the victim of an emergency a chance to survive.

“Special Duty” of Care:  If a tortious government action is classified as “ministerial”, the next question becomes whether or not the government owed the victim a “special duty” of care under the law to ensure the victim’s safety.  Essentially, a “special duty” of care means that the government has taken its interaction with a particular citizen beyond the normal bounds of the government-citizen relationship and has actually reached out to someone and done something that causes a person to reasonably rely on the government to do something.  The idea behind the concept of a “special duty” of care is that the government, generally, has contact with almost everyone in society in its provision of government services and other acts that it undertakes as the sovereign; and it would be impossible for the government to function properly for the good of society if, every time it undertook to provide government services, it became subject to potential liability.  New York’s highest court, the Court of Appeals, has held for decades that a plaintiff must prove the following things in order to hold a governmental entity responsible in court for its harmful conduct:  (i) That the governmental entity assumed (whether through promises or actions) an affirmative duty to act on the plaintiff’s behalf, (ii) the governmental entity knew that the plaintiff might be harmed if it did not act, (iii) the governmental entity (or its agent) and the plaintiff came into direct contact with eachother in connection with the governmental entity’s promises or actions, and (iv) the plaintiff justifiably relied on the governmental entity’s affirmative undertaking.  If a plaintiff can prove these things, they may proceed in court against the government as they otherwise would against a non-governmental defendant and prove their case.


Cases involving a governmental immunity defense are complicated and frought with pitfalls.  Only the best attorneys know how to recognize that a governmental immunity defense is likely to arise in a particular case; and few attorneys have the skill and knowledge necessary to build a successful case from the start.  Only with proper planning from the inception of a case is victory in court possible.  My law firm has considerable experience handling cases involving governmental immunity defenses; we have had considerable success in these cases on behalf of our family of clients.  Call me at (718) 354-8000 to discuss your personal injury case if you believe that the government may be responsible.

Category: Personal Injury