"[I]n order for liability to be imposed upon a municipality . . . there must be proof of a `special relationship' between that person and the municipality." Kircher v. City of Jamestown, 74 N.Y.2d 251, 253, 543 N.E.2d 443, 444, 544 N.Y.S.2d 995, 996 (1989) (citing Cuffy). The "special duty" imposed by that relationship is recognized only in a "narrow class of cases."
Expanding the exception in this manner will very likely increase a municipality's exposure to liability, could discourage municipalities from providing vital public services, and could practically render the "special relationship" exception a nullity by opening the door to an endless number of individuals who may claim "direct contact." ( Cuffy v City of New York, 69 NY2d 255; Pelaez v Seide, 2 NY3d 186; Lauer v City of New York, 95 NY2d 95; Kircher v City of Jamestown, 74 NY2d 251; O'Connor v City of New York, 58 NY2d 184; Sorichetti v City of New York, 65 NY2d 461; Adderley v City of New York, 304 AD2d 485, 100 NY2d 511; Stata v Village of Waterford, 225 AD2d 163; Merced v City of New York, 75 NY2d 798; Baez v City of New York, 309 AD2d 679.) II.
The Court of Appeals has enunciated a general rule that, as a matter of policy, municipalities will not be held liable for negligence in performing governmental functions ( see Cuffy, 69 NY2d at 260). The rule has often been applied in the context of a failure to provide police protection ( see e.g. Kircher v. City of Jamestown, 74 NY2d 251; Cuffy, supra; Bogart v. Town of New Paltz, 145 AD2d 110, lv denied 74 NY2d 608; Yearwood v. Town of Brighton, 101 AD2d 498, affd 64 NY2d 667), but it has also addressed claims of negligence in other governmental services ( see e.g. Baez v. City of New York, 309 AD2d 679 [ambulance]; S.C. Freidfertig Bldrs. v. Spano Plumbing Heating, 173 AD2d 454 [firefighters]). The policy behind the rule is that the duty of the municipality is owed to the public at large rather than to individuals, and that such services are "limited by the resources of the community and by a considered legislative-executive decision as to how those resources may be deployed" ( see Riss v. City of New York, 22 NY2d 579, 581-582; accord Kircher, supra; Cuffy, supra).
Beginning with claimant's cross appeal, we must consider whether claimant has established the existence of a special relationship between the State and his children. As a general rule, a governmental entity may not be held liable for injuries resulting from its failure to provide police and fire protection to a particular individual ( see, Kircher v. City of Jamestown, 74 N.Y.2d 251, 255-256; Cuffy v. City of New York, 69 N.Y.2d 255, 260; Pike v. State of New York, 214 A.D.2d 934, 935, lv dismissed and denied 86 N.Y.2d 811). This proposition is founded upon the quite reasonable rationale that the duty to provide police and fire protection is owed to the public at large and not to any particular individual or group and, further, that the decision as to how to best allocate those resources is properly left to the discretion of policy makers ( see, Kircher v. City of Jamestown, supra, at 256; Cuffy v. City of New York, supra, at 260).
Defendants contend that none of plaintiffs may recover under any theory because a municipality ordinarily is not liable for injuries sustained from its failure to provide police protection. Laratro v. City of NewYork , 8 NY3d 79, 81-82 (2006); Mastroianni v. County of Suffolk, 91 NY2d 198, 203 (1997); Balsam v. Delma Eng'g Corp., 90 NY2d 966, 967 (1997); Kircher v. City of Jamestown, 74 NY2d 251, 255 (1989). Defendants may be liable, however, for failing to provide police protection if they previously formed a special relationship with plaintiffs.
The case law on special relationships is concentrated in police protection cases, which frequently invoke questions about municipal obligations to extend protection or assistance to individuals. See Kircher v. City of Jamestown, 74 N.Y.2d 251, 255-56 (1989) ("The decisions of this court requiring the existence of a `special relationship' between the claimant and the municipality before the latter may be held liable to the former for the negligent exercise of a government function such as providing police protection are legion."). The principles set forth in these cases may be extended to Newton's situation.
De Long v. County of Erie, 60 N.Y.2d 296, 469 N.Y.S.2d 611, 615, 457 N.E.2d 717, 720 (1983). See also Kircher v. City of Jamestown, 74 N.Y.2d 251, 544 N.Y.S.2d 995, 997, 543 N.E.2d 443, 445 (1989). The elements of a "special relationship" are:
DISCUSSION As a general rule, a municipality may not be held liable for injuries resulting from a failure to provide police protection (see, Kircher v. City of Jamestown, 74 N.Y.2d 251, 255, 544 N.Y.S.2d 995, 543 N.E.2d 443; Cuffy v. City of New York, 69 N.Y.2d 255, 260, 513 N.Y.S.2d 372, 505 N.E.2d 937; Sorichetti v. City of New York, 65 N.Y.2d 461, 468, 492 N.Y.S.2d 591, 482 N.E.2d 70; Riss v. City of New York, 22 N.Y.2d 579, 583, 293 N.Y.S.2d 897, 240 N.E.2d 860). As we have stated, "a different rule 'could and would inevitably determine how the limited police resources of the community should be allocated and without predictable limits' " (Sorichetti, supra, at 468, 492 N.Y.S.2d 591, 482 N.E.2d 70; see also, Kircher, supra, at 256, 544 N.Y.S.2d 995, 543 N.E.2d 443; Cuffy, supra, at 260, 513 N.Y.S.2d 372, 505 N.E.2d 937; Riss, supra, at 582, 293 N.Y.S.2d 897, 240 N.E.2d 860).
First, a potentially crushing burden of liability would fall on the community fisc. Weiner v. Metropolitan Transportation Auth., 55 N Y2d 175, 182, 448 N.Y.S.2d 141, 433 N.E.2d 124 (1982). Cf. Kircher v. City of Jamestown, 74 N.Y.2d 251, 256, 544 N.Y.S.2d 995, 543 N.E.2d 443 (1989) ("The amount of protection that may be provided is limited by the resources of the community."). Second, and perhaps more importantly, constraining the executive and legislative branches' discretionary control over public expenditures would be an improper exercise of judicial power.
We have held that a municipality engaged in a governmental function may be liable in negligence where "the facts demonstrate that a special duty was created" (Ferreira v City of Binghamton, 38 N.Y.3d 298, 310 [2022] [internal quotation marks and citation omitted]; see Applewhite v Accuhealth, Inc., 21 N.Y.3d 420, 426 [2013]). The special duty doctrine was developed as a mechanism " 'to rationally limit the class of citizens to whom the municipality owes a duty of protection' " ( Ferreira, 38 N.Y.3d at 310, quoting Kircher v City of Jamestown, 74 N.Y.2d 251, 258 [1989]). We have explained that