The government has many defenses to tort actions not available to private parties.  Thus, results can vary for defendants based upon their status.

In Clark v City of New York, the plaintiff was injured while in a homeless shelter when he was attacked by two other residents and set on fire.  The plaintiff sued the City of New York, several governmental agencies that ran the homeless shelter, as well as a private company hired by the City to provide security.  The lower court granted all of the defendants’ motions for summary judgment.

The Appellate Division, Second Department, upheld the portion of the lower court’s decision that granted the City agencies’ motions for summary judgment.  The Court found the allegation that the City failed to properly protect the plaintiff fell under a governmental function, not a proprietary function.  The City agencies were entitled to immunity against the plaintiff’s claims because the City could not be found liable for breaching a governmental function unless it owed a special duty to the plaintiff, which it did not.

On the other hand, the Appellate Division reversed the lower court’s decision as to the private security company.  The Court held that the private, for-profit, company was not entitled to the same immunity afforded to the City defendants.  Rather, in order to escape liability, the private security company had to show that it did not breach a duty owed to the plaintiff and that the incident was not foreseeable.  Given that the plaintiff had been previously attacked by the same assailants who were allowed to enter the shelter with flammable liquid and roam the hallways of the shelter at night unsupervised, the Court found that the security company failed to make a prima facie showing that the incident was not foreseeable.

Thanks to Georgia Coats for her contribution.  For more information, contact Denise Fontana Ricci at .