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Applewhite v. Accuhealth, Inc.

Court of Appeals of New York

June 25, 2013

Tiffany APPLEWHITE, an Infant, by Samantha Applewhite, Her Mother and Natural Guardian, et al., Respondents,
ACCUHEALTH, INC., et al., Defendants, and City of New York, Appellant.

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[Copyrighted Material Omitted]

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[972 N.Y.S.2d 170]Michael A. Cardozo, Corporation Counsel, New York City (Drake A. Colley, Fay Leoussis, Amy G. London, Margaret G. King and Edward F.X. Hart of counsel), for appellant.

Kramer, Dillof, Livingston & Moore, New York City (Matthew Gaier and Thomas A. Moore of counsel), Norman Bard and Murray S. Axelrod, for respondents.

John A. Mancini, Albany, for New York State Conference of Mayors and Municipal Officials, amicus curiae.

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[972 N.Y.S.2d 171]OPINION


[995 N.E.2d 133] When a municipality provides ambulance service by emergency medical technicians in response to a 911 call for assistance, it performs a governmental function and cannot be held

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liable unless it owed a " special duty" to the injured party. Based on the specific allegations interposed in this case, plaintiffs have adequately established questions of fact on the applicability of the special duty doctrine, thereby precluding summary judgment for the municipal defendants.


In 1998, plaintiff Tiffany Applewhite suffered from uveitis, an eye condition, which required the intravenous administration of a prescribed medication. After a visiting nurse injected Tiffany with the drug at her home, the 12-year-old girl experienced an episode of anaphylactic shock. When Tiffany's breathing difficulties worsened, her mother dialed 911 seeking assistance. While the nurse performed whatever emergency care that she could provide, Tiffany had a seizure followed by cardiac arrest.

Within minutes after the 911 call was placed, two emergency medical technicians (EMTs) employed by the New York City Fire Department arrived at the Applewhite apartment, having traveled in a basic life support ambulance. The EMTs had been dispatched because no advanced life support (ALS) ambulance transporting paramedics was available at the time. One EMT immediately began performing cardiopulmonary resuscitation (CPR) on Tiffany while the other called for an ALS ambulance and then retrieved equipment from the ambulance.

At some point, Tiffany's mother allegedly requested that the EMTs transport Tiffany to nearby Montefiore Hospital. The EMT continued to conduct CPR on Tiffany until paramedics from a private hospital, who arrived in an ALS ambulance, appeared at the scene. The paramedics injected Tiffany with epinephrine to counter the effects of anaphylactic shock, intubated her, administered oxygen and then transported her to Montefiore Hospital. Tiffany survived the ordeal but tragically suffered serious brain damage.

Tiffany and her mother commenced this action against the nurse, her employer (Accuhealth, Inc.), and the City of New York and its emergency medical services (EMS). Accuhealth dissolved in bankruptcy and the lawsuit against the nurse was settled. Thus, the only claims that remain outstanding are those against the municipal defendants (referred to collectively as the City).

The City moved for summary judgment, primarily contending that it was immune from liability because it did not owe a special duty to plaintiffs. In the alternative, the City maintained

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that the actions of its personnel were not the proximate cause of Tiffany's injuries; rather, Tiffany's allergic reaction was the result of the drug administered to the child by the nurse. Supreme Court granted the City's motion, concluding that plaintiffs could not prove that the City owed them a special duty or that the municipal defendants were the proximate cause of the harm.

The Appellate Division reversed and reinstated the claims against the City ( 90 A.D.3d 501, 934 N.Y.S.2d 164 [1st Dept.2011] ). It determined that the City's emergency medical response was governmental in nature, but found that plaintiffs raised triable issues of fact as to whether the City had assumed a special duty to plaintiffs and whether it proximately caused their injuries. The Appellate Division [972 N.Y.S.2d 172] [995 N.E.2d 134] certified a question to us asking if its decision was correct.


When a negligence claim is asserted against a municipality, the first issue for a court to decide is whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose. If the municipality's actions fall in the proprietary realm, it is subject to suit under the ordinary rules of negligence applicable to nongovernmental parties ( see Matter of World Trade Ctr. Bombing Litig., 17 N.Y.3d 428, 446-447, 933 N.Y.S.2d 164, 957 N.E.2d 733 [2011], cert. denied sub nom. Ruiz v. Port Auth. of New York & New Jersey, 568 U.S. ----, 133 S.Ct. 133, 184 L.Ed.2d 28 [2012] ). A government entity performs a purely proprietary role when its " activities essentially substitute for or supplement traditionally private enterprises" ( Sebastian v. State of New York, 93 N.Y.2d 790, 793, 698 N.Y.S.2d 601, 720 N.E.2d 878 [1999] [internal quotation marks omitted] ). In contrast, a municipality will be deemed to have been engaged in a governmental function when its acts are " undertaken for the protection and safety of the public pursuant to the general police powers" ( id. [internal quotation marks omitted] ).

Because this dichotomy is easier to state than to apply in some factual scenarios, the determination categorizing the conduct of a municipality may present a close question for the courts to decide ( see Matter of World Trade Ctr. Bombing Litig., 17 N.Y.3d at 446-447, 933 N.Y.S.2d 164, 957 N.E.2d 733; Sebastian, 93 N.Y.2d at 793-794, 698 N.Y.S.2d 601, 720 N.E.2d 878). Police and fire protection are examples of long-recognized, quintessential governmental functions ( see e.g. Valdez v. City of New York, 18 N.Y.3d 69, 75, 936 N.Y.S.2d 587, 960 N.E.2d 356 [2011]; Harland Enters. v. Commander Oil Corp., 64 N.Y.2d 708, 709, 485 N.Y.S.2d 733, 475 N.E.2d 104 [1984] ). Additional examples include security operations at the World Trade Center ( see

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Matter of World Trade Ctr. Bombing Litig., 17 N.Y.3d at 450, 933 N.Y.S.2d 164, 957 N.E.2d 733); oversight of juvenile delinquents ( see Sebastian, 93 N.Y.2d at 796, 698 N.Y.S.2d 601, 720 N.E.2d 878); issuance of building permits or certificates of occupancy ( see Rottkamp v. Young, 15 N.Y.2d 831, 833, 257 N.Y.S.2d 944, 205 N.E.2d 866 [1965], affg. 21 A.D.2d 373, 249 N.Y.S.2d 330 [2d Dept.1964]; Worth Distribs. v. Latham, 59 N.Y.2d 231, 237, 464 N.Y.S.2d 435, 451 N.E.2d 193 [1983] ); certifying compliance with fire safety codes ( see Garrett v. Holiday Inns, 58 N.Y.2d 253, 261-262, 460 N.Y.S.2d 774, 447 N.E.2d 717 [1983] ); teacher supervision of a public school playground ( see Bonner v. City of New York, 73 N.Y.2d 930, 932, 539 N.Y.S.2d 728, 536 N.E.2d 1147 [1989] ); boat inspections ( see Metz v. State of New York, 20 N.Y.3d 175, 179-180, 958 N.Y.S.2d 314, 982 N.E.2d 76 [2012] ); and garbage collection ( see Nehrbas v. Incorporated Vil. of Lloyd Harbor, 2 N.Y.2d 190, 194-195, 159 N.Y.S.2d 145, 140 N.E.2d 241 [1957] ). On the other hand, we have recognized that certain medical services delivered by the government in hospital-type settings are more akin to private, proprietary conduct ( see e.g. Schrempf v. State of New York, 66 N.Y.2d 289, 496 N.Y.S.2d 973, 487 N.E.2d 883 [1985]; Bryant v. New York City Health & Hosps. Corp., 93 N.Y.2d 592, 695 N.Y.S.2d 39, 716 N.E.2d 1084 [1999]; Matter of Murray v. City of New York, 30 ...

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