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City traffic cop not liable for directing driver into oncoming Brooklyn traffic

April 21, 2014 By Charisma L. Miller, Esq. Brooklyn Daily Eagle
City officials discuss Mayor de Blasio's Vision Zero initiative in the Brooklyn Borough Hall courtroom. Photo: Mary Frost
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A New York City traffic officer and the city are not responsible for damages incurred by a driver who was directed into oncoming Brooklyn traffic by a traffic cop, the Brooklyn Appellate Division, Second Department ruled.

In 2008, Henry Miller was driving northbound on Adams Street in Downtown Brooklyn. Robert Fasano, who was traveling down Tillary Street, struck Miller’s car. According to court documents, Miller had the green light, but a New York City traffic cop directed Fasano to drive ahead despite Miller’s right of way.

Miller filed suit against Fasano, the city and the traffic officer for injuries sustained as a result of the accident. The city countered that it was not liable for damages and moved for a summary judgment dismissing the claims against it. The Brooklyn Supreme Court denied summary judgment finding that Miller had a viable claim against the city. Brooklyn’s Appellate Division disagreed.

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The four panel justices held that the city and its traffic officer were engaged in government action and therefore given immunity via government function.

“Government 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,” the court stated, citing case precedent.  

In other words, for the city to avail under government function immunity, it would have to prove that the disputed action was a government action and not a ministerial act. Legally defined, a ministerial act is one that a public officer is required to perform and performs without the exercise of his own judgment or in his own discretion. A discretionary act—as it relates to government action—is an act the officer performs in accordance with his own discretion or judgment.  If an act is discretionary, the government cannot be held liable for resulting injuries. Conversely, if an act is ministerial, the government actor may be found responsible.

For clarity, courts have held that a government actor cannot be held liable for exercising his judgment when that judgment is deemed faulty (following a discretionary act). However, a government actor can be held responsible where his actions involves failing to follow law or stated policy (following a ministerial act). 

The Appellate Division ruled that the alleged negligent acts of the traffic officer were performed in accordance with her own discretion and as such, the city may not be liable for Miller’s injuries.

“Here, the defendants City of New York and Traffic Enforcement Agent “Jane” Smith…met their burden of establishing…as a matter of law…that the allegedly negligent acts of the defendant traffic enforcement agent were discretionary and not ministerial,” the court concluded.

The panel summarily dismissed Miller’s complaint as related to the city. The court did not appear to make a determination regarding Miller’s claims against Fasano.

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