The opinion of the court was delivered by: Graffeo, J.:
This opinion is uncorrected and subject to revision before publication in the New York Reports.
After her estranged boyfriend shot her, causing serious injuries, plaintiff Carmen Valdez sued the City of New York for failing to provide her with adequate police protection to prevent the attack. The primary issue before us is whether there was sufficient evidence in the record to establish the existence of a special relationship between Valdez and the police. Because we conclude that there was not, we affirm the order of the Appellate Division, which reversed the judgment in plaintiffs' favor and dismissed the complaint.
In July 1996, after a prior order of protection expired, plaintiff Carmen Valdez obtained a second order of protection against her former boyfriend, Felix Perez, in Bronx Criminal Court. She delivered the order to the Domestic Violence Unit at her local police precinct and asked that it be served on Perez. At that time, Valdez met Officers Torres and Perreira --the two individuals assigned to the unit. Valdez later received a telephone call from Officer Perreira confirming that Perez had been served with the court order.
According to Valdez, about a week later, Perez telephoned her at around 5:00 PM on a Friday evening and threatened to kill her. Perez had made various threats in the past -- threats that prompted Valdez to secure an order of protection -- but Valdez viewed this threat as an escalation of his hostility because he had not previously threatened to kill her. Valdez immediately left her apartment with her two young sons, planning to go to her grandmother's house in the Bronx. On the way to her car, however, she stopped at a payphone and contacted the Domestic Violence Unit to alert the police to the latest threat by Perez. She contended that she spoke with Officer Torres, who told her that she should return to her apartment and that the police would arrest Perez "immediately."*fn1
After speaking to Officer Torres, Valdez returned to her apartment with her children where she remained for the rest of the evening. She did not hear from the police that evening, nor did she contact the precinct to inquire whether Perez had been located or arrested. The night passed without incident. The following day -- a Saturday -- Valdez and the children remained in their apartment most of the day. At about 10:45 PM that evening, Valdez stepped out of the apartment and into the hallway of her building intending to take out the garbage when she was confronted by Perez brandishing a gun. He ushered her back into the apartment doorway and, tragically, shot her two or three times, injuring her face and arm. The two children witnessed the shooting but were not physically harmed. Perez then turned the gun on himself and committed suicide.
Valdez commenced this action against the City of NewYork claiming that, based on her telephone conversation with Officer Torres, the City had undertaken a "special relationship" with her that created a duty of care; that the City was negligent in failing to arrest Perez prior to the attack; and that its negligence was a proximate cause of the shooting. Valdez also brought claims on behalf of the children, contending that the "special relationship" extended to them and that they could recover damages for negligent infliction of emotional distress because they were in the zone of danger at the time of the attack.
After issue was joined, the parties engaged in discovery but the City did not file a pretrial motion to dismiss or seek summary judgment dismissing the complaint. Instead, in 2006, the case proceeded to a jury trial. At the commencement of the trial, the City moved to dismiss the complaint on the ground that plaintiffs had failed to state claims upon which relief could be granted asserting, among other arguments, that Valdez' allegations failed to establish the existence of a "special relationship" giving rise to a duty of care because there was insufficient evidence to show that any reliance on the purported statements of Officer Torres was justifiable. The City renewed this argument at the close of plaintiffs' proof. Both of these motions were denied.
At trial, Valdez offered her account of the events preceding the shooting, while the City asserted that Valdez had not contacted the police the night before the shooting and, as such, that the police neither promised to arrest Perez nor directed Valdez to return to her apartment. Consistent with its assertion that it never received a complaint from Valdez on the night in question, the City did not offer any evidence of investigative or other police activities taken in response to the telephone call. The jury apparently credited plaintiffs' proof as it returned a verdict apportioning fault 50% to the City and 50% to Perez, awarding damages in the amount of $9.93 Million. Beyond the finding of negligence, the jury also determined that the City had acted in reckless disregard of plaintiffs' safety. The City moved to set aside the verdict on a number of grounds, reiterating its contention that the evidence had been insufficient to support a finding of "special relationship." Supreme Court declined to disturb the verdict on liability but modified the damages award in a minor respect (the parties also stipulated to reduce the award for past medical expenses).
The City appealed to the Appellate Division, which reversed the judgment and vacated the verdict in a divided decision. Three justices concluded that plaintiffs failed to establish a special relationship because the proof was inadequate to support a finding that Valdez's reliance on the officer's promise to arrest Perez was justifiable. The two dissenting justices reasoned that there was sufficient evidence of justifiable reliance and would have sustained the liability verdict, albeit modifying the judgment to vacate the reckless disregard finding. Given that this Court's decisions in McLean v City of New York (12 NY3d 194 ) and Dinardo v City of New York (13 NY3d 872 ) were issued while this case was pending on appeal to the Appellate Division, the plurality, concurring and dissenting opinions all discussed those two cases. In particular, having concluded that plaintiffs demonstrated the existence of a special relationship, the dissent further addressed whether the failure of the police to arrest Perez or take other action to prevent the attack constituted a ministerial or discretionary act. Characterizing that act as ministerial, the dissent would have permitted plaintiffs to recover.
Plaintiffs appealed to this Court as of right on the two-justice dissent.
We begin with the observation that it is undisputed that this case involves the provision of police protection, which is a classic governmental, rather than proprietary, function. That being so, the facts potentially implicate two separate but well-established grounds for a municipality to secure dismissal of a tort claim brought against it by a private citizen injured by a third party. The first relates to the fundamental obligation of a plaintiff pursuing a negligence cause of action to prove that the putative defendant owed a duty of care. Under the public duty rule, although a municipality owes a general duty to the public at large to furnish police protection, 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 is an offshoot of the general proposition that "to sustain liability against a municipality, the duty breached must be more than that owed the public generally" (Lauer v City of New York, 95 NY2d 95, 100 ). We have deemed it necessary to restrict the scope of duty in this manner because the government is not an insurer against harm suffered by its citizenry at the hands of third parties. Thus, in order to pursue her negligence action against the City in this case, plaintiffs were required to allege a special duty -- which they attempted to do by contending that the telephone conversation with Officer Torres created a special relationship.
The second principle relevant here relates not to an element of plaintiffs' negligence claim but to a defense that was potentially available to the City -- the governmental function immunity defense. Although the State long-ago waived sovereign immunity on behalf of itself and its municipal subdivisions, the common-law doctrine of governmental immunity continues to shield public entities from liability for discretionary actions taken during the performance of governmental functions (Matter of World Trade Ctr. Bombing Litig., ___ NY3d ___ [decided September 22, 2011]; Lauer, 95 NY2d at 99; Tango v Tulevech, 61 NY2d 34, 40 ).*fn2 This limitation on liability reflects separation of powers principles and is intended to ensure that public servants are free to exercise their decision-making authority without interference from the courts. It further "reflects a value judgment that -- despite injury to a member of the public -- the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for injury" (Mon v City of New York, 78 NY2d 309, 313  [citation omitted]).
As a result, "[a] public employee's discretionary acts -- meaning conduct involving the exercise of reasoned judgment --may not result in the municipality's liability even when the conduct is negligent" (Lauer, 95 NY2d at 99).*fn3 In other words, even if a plaintiff establishes all elements of a negligence claim, a state or municipal defendant engaging in a governmental function can avoid liability if it timely raises the defense andproves that the alleged negligent act or omission involved the exercise of discretionary authority. It is also clear from our precedent that the governmental function immunity defense cannot attach unless the municipal defendant establishes that the discretion possessed by its employees was in fact exercised in relation to the conduct on which liability is predicated (see Mon, 78 NY2d at 313; Haddock v City of New York, 75 NY2d 478, 484 ).
As we recently observed in McLean v City of New York (12 NY3d at 203), when both of these doctrines are asserted in a negligence case, the rule that emerges is that "[g]overnment action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general" (see also Dinardo, 13 NY3d at 874). McLean did not announce a new rule -- it merely distilled the analysis applied in prior cases such as Lauer (95 NY2d 95; see also Garrett v Holiday Inns, 58 NY2d 253 ).
In Chief Judge Kaye's decision in Lauer, we expressly rejected the contention "that a ministerial breach by a governmental employee necessarily gives rise to municipal liability" (95 NY2d at 99). Lauer clarified that, even when municipal action is ministerial -- thereby "remov[ing] the issue of governmental immunity from the case" (id. [citation omitted]) -- the plaintiff in a negligence action must nonetheless establish that the municipality owed a duty of care by demonstrating the existence of a special duty beyond the obligation owed the public at large. In fact, in Lauer it was undisputed that the municipal negligence in question -- the medical examiner's failure to deliver a corrected autopsy report to law enforcement authorities -- amounted to a ministerial act
(95 NY2d at 99). Yet the Court applied the special duty analysis to determine whether the municipality could be answerable in negligence, concluding that plaintiff's claim could not be sustained because the medical examiner owed no special duty of care.*fn4 It is clear from the analysis in Lauer that the special duty rule assists a plaintiff in establishing a duty of care and that it operates independently of the governmental function immunity defense, which precludes liability even when all elements of a negligence claim -- including duty -- have been proved. The special duty doctrine is therefore not an exception to governmental function immunity.
Despite the analysis presented in Lauer, there has been lingering confusion concerning the relationship between the special duty rule (establishing a tort duty of care) and the governmental function immunity defense (affording a full defense for discretionary acts, even when all elements of the negligence claim have been established). Some of this is attributable to municipal defendants, who have often waived the immunity defense by failing to timely raise it -- causing courts to adjudicate claims based exclusively on special duty analysis. In McLean, we recognized our own role in blurring the distinctions between the two theories, acknowledging the existence of potentially misleading dicta in some of our prior cases (12 NY3d at 203). For this reason, we have endeavored here to explain the rationale underlying each doctrine in the hope of bringing further clarity to this complex area of the law.
This Court is not, however, unanimous in this effort. It appears that Chief Judge Lippman views the special duty rule as an exception to the governmental function immunity defense, at least in some circumstances. We did not adopt this view in Lauer, McLean and Dinardo -- and decline to do so today. Judge Jones concludes that the governmental function immunity defense should be inapplicable to police protection cases, reasoning that a plaintiff should be able to recover in that category of claims as long as a special duty is established. We reject this approach as well.*fn5
The dissenters seem to be concerned that, if governmental function immunity is available in police protection cases, plaintiffs will never be able to recover in negligence. Plaintiffs have similarly opined that the application of the McLean syllogism in this category of negligence cases will preclude plaintiffs from holding municipalities liable -- a fear that is predicated on the theory that police work invariably involves the exercise of discretion. We do not share this view because we do not accept the premise underlying it. We know of no decision of this Court holding that police action (or ...