NYCLA Tort Committee Case Review Journal


Dear Members:


In our eagerness to provide our Committee members with their first Tort Committee Case Review/Digest Newsletter, we failed to apprise you of NYCLA’s amicus brief in Ferreira v City of Binghamton, 2022 N.Y. Slip Op. 01953 FerreiravBinghampton-NYCLA-amicus-amicusbrf.pdf. NYCLA’s Amicus brief asked: “Does the “special duty” requirement—that, to sustain liability in negligence against a municipality, the plaintiff must show that the duty breached is greater than that owed to the public generally— apply to bar recovery where a police officer executing a no-knock warrant shot an unarmed occupant of a residence? Amicus contends that the answer to this question is no.” FerreiravBinghampton-NYCLA-amicus-am icusbrf.pdf at p.7. The Court of Appeals agreed. holding that plaintiff Ferreira was owed a special duty. In reaching this conclusion the NY Court of Appeals said

The execution of a no-knock warrant is a charged and volatile situation undertaken at the direction and supervision of municipal actors, who plan and execute the warrant and who can reasonably foresee and take steps to avoid many of the risks occasioned by uncertain reactions to chaotic events when the police forcefully cross the threshold of someone’s home. In a no-knock warrant situation, the police exercise extraordinary governmental power to intrude upon the sanctity of the home and take temporary control of the premises and its occupants. In such circumstances, the police direct and control a known and dangerous condition, effectively taking command of the premises and temporarily detaining occupants of the targeted location. As a result, the municipality’s duty to the [*6]individuals in the targeted premises, a limited class of potential plaintiffs, exceeds the duty the municipality owes to the members of the general public. A special duty therefore arises when the police plan and execute a no-knock search warrant at an identified residence, running to the individuals within the targeted premises at the time the warrant is executed. In other words, in those circumstances, the police take positive control of a known and dangerous condition, creating a special duty under the third situation recognized by this Court.


Ferreira, id., 2022 NY Slip Op 01953 at p6.


The opinion also agreed with NYCLA’s amicus brief that negligent planning, investigation and the subsequent botched execution were the major contributing factors to the botched raid that resulted in the shooting of Plaintiff Ferreira. However they found that the jury’s finding that the City was negligent but not the officer for the botched execution obviated the Court’s need to opine on the issue. Although the Court of Appeals declined to adopt NYCLA’s amicus brief’s position that a “special duty” doctrine is unnecessary be- cause such cases can be litigated under the established tort negligence doctrine, dissenting Justice J. Wilson disagreed and opined NYCLA’s position, saying:

Our numerous precedents—spanning well over a century—establish that municipalities can owe an ordinary duty of care to individual members of the public. It is only when a plaintiff cannot demonstrate the existence of an ordinary duty breached by a governmental actor that the “special duty” doctrine comes into play. That is, the “special duty” doctrine is not a contraction of the circumstances under which a plain- tiff could establish a claim for negligence; it is, as its name suggests, an expansion that allows a claim of negligence to proceed even when no ordinary duty exists.

Id at p7.See, NYCLA’s amicus brief at: NYCLA-amicus-amicusbrf.pdf

It remains to be seen whether NYCLA and Justice Wilson’s argument that the “special duty” doctrine is unnecessary will prevail in this area of botched police raids.


Thank you—NYCLA Tort Committee

Co-Chairs: Alice Charles, Esq., and Josh Kelner, Esq.