Monday, January 1, 2007

Without more, can an employee's failure to follow the employer's protocols sound in negligence?

Badillo v City of New York
Decided on December 28, 2006
Appellate Division, First Department

Plaintiffs allege that the four teenage boys drowned because emergency personnel did not respond to a 911 cell phone call made by one of the decedents. The complaints, given every favorable inference did not show justifiable reliance demonstrating the special relationship necessary to impose liability for the failure to send rescue personnel, i.e., that the call lulled the decedents into a false sense of security and thereby induced them to forgo other possibilities of rescue (see Cuffy v City of New York, 69 NY2d 255, 261 [1987]; De Long v County of Erie, 60 NY2d 296, 305 [1983] [assurance that police would arrive "right away" only increased the risk to the victim's life]). The decedents' alleged reasonable expectation that help was on the way is not enough to establish justifiable reliance. In addition, plaintiffs must show that the decedents acted on that reliance to their detriment, such that as a result of the call, they were put in a worse position than they would have been in had the call not been made (see Grieshaber v City of Albany, 279 AD2d 232, 235-236 [2001], lv denied 96 NY2d 719 [2001]). We reject plaintiffs' alternative argument that the alleged failure of 911 personnel to comply with departmental protocols and standards of conduct accepted throughout the 911 industry is an independent basis for liability, apart from the existence of a special relationship. The special relationship requirement applies where, as here, the acts or omissions complained of are in the nature of nonfeasance, not malfeasance (Haggerty v Diamond, 251 AD2d 455 [1998], lv denied 92 NY2d 814 [1998]; cf. Rodriguez v City of New York, 189 AD2d 166, 172-173 [1993]).