FDNY Prevails in Suit Brought by Injured Kayaker

The Appellate Division of the New York Supreme Court has upheld the dismissal of a lawsuit brought by a kayaker who was serious injured during an FDNY marine rescue. Frank Marino Jr., 17, was kayaking in Jamaica Bay on May 30, 2014 when he capsized prompting an FDNY response.

The propeller of the rescue boat struck Marino causing “multiple severe and serious lacerations” to his abdomen and legs, necessitating surgery. He filed suit alleging negligence. The Queens County Supreme Court granted summary judgment to the city concluding Marino could not establish the existence of a special duty by FDNY. Marino appealed to the Appellate Division.

Here is how the court explained its decision (quotation marks and citations removed):

  • 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 is engaged in a proprietary function, it is subject to suit under the ordinary rules of negligence.
  • 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.
  • If the municipality was acting in a governmental capacity, then the plaintiff must prove the existence of a special duty as an element of his or her negligence cause of action.
  • Here, the defendants were acting in a governmental capacity when the plaintiff was injured during the firefighters’ rescue operation.
  • Since the defendants were acting in a governmental capacity, the plaintiff was required to prove that the defendants owed him a special duty.
  • A special duty can arise, as relevant here, where the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally or the municipality took positive control of a known and dangerous safety condition.
  • The elements of a special duty based upon voluntary assumption of a duty are: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking.
  • Of the four factors, the ‘justifiable reliance’ element is particularly critical because it provides the essential causative link between the special duty assumed by the municipality and the alleged injury.
  • Here, the defendants demonstrated their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging negligence by establishing that they did not owe a special duty to the plaintiff, and the plaintiff failed to raise a triable issue of fact in opposition.
  • The plaintiff’s submissions failed to establish that the defendants lulled the plaintiff into a false sense of security, or induced him to forego other avenues of assistance, and therefore placed the plaintiff in a worse position than he would have been had the defendants never assumed the duty.
  • Further, the plaintiff’s submissions failed to establish that the defendants assumed positive direction and control in the face of a known, blatant, and dangerous safety violation. Accordingly, the Supreme Court properly granted that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging negligence.

Here is a copy of the decision:

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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