New York Appeals Court Rekindles the Spark


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In John Trimble, et al. v. City of Albany, et al., 2016, 144 A.D.3d 1484; 42 N.Y.S. 3d 432 (N.Y. App. Div.), the Supreme Court of New York, Appellate Division, addressed the issue of governmental immunity for municipal fire companies. The court held that the plaintiff, John Trimble  (Trimble), had sufficient evidence related to the four-pronged test for establishing a “special relationship” between a municipality and a citizen for liability to attach. In addition, the court held that the defendants were not entitled to summary judgment on the issue of governmental immunity. Specifically, regarding the latter holding, the court stated that, when there is no actual choice made on the part of the government, the government’s actions cannot be considered discretionary and immunity will not apply.

In the case at hand, a fire occurred at Trimble’s home on the evening of February 2, 2013. Trimble called 911 and the Department of Fire and Emergency Services for the City of Albany (the Department) responded. After extinguishing the fire, the Department conducted an investigation and cleared the home. The Department’s investigators then told Trimble that the fire was extinguished and it was safe to enter the home. Trimble did so, removing some items so that he could stay with relatives that night. Several hours later, there was a rekindle and the rekindled fire destroyed the home.

In the subsequent investigation of the rekindle, investigators determined that the second fire started in the area underneath a window well. Trimble alleged that the Department failed to overhaul that area. Specifically, Trimble alleged the Department did not remove damaged materials from the area, including a stack of firewood and remains of lawn furniture. These materials were found in the area of origin after the second fire. When questioned, one of the initial responders said that no one could remember if they pulled these materials away from the area during the Department’s response to the first fire.

After Trimble filed suit, the defendants, including the Department, filed a motion to dismiss on the grounds that there was no special relationship between Trimble and the Department that gave rise to a duty of care and that the Department was immune from liability since the firefighters were performing discretionary, governmental functions. The motion was eventually converted into a motion for summary judgment. The Supreme Court granted the motion and dismissed the case based on both issues. The Appellate Division reversed the lower court’s decision.

The Appellate Division reversed on the “special relationship” issue with relative ease. As noted by the court, to prove the existence of a special relationship, the plaintiff must have evidence showing: 1) an assumption of an affirmative duty to the injured party by the municipality; (2) knowledge by the municipality that inaction could lead to harm; (3) contact between the municipality and the injured party; and (4) the injured party’s justifiable reliance on the municipality’s affirmative undertaking. Construing the evidence in a light most favorable to Trimble, the court held that he raised a triable issue of fact as to whether a special relationship existed. Given the nature of firefighting, the court easily found that Trimble had sufficient evidence to meet the first three prongs of the test. Clearly, the municipality took on a duty to Trimble when it affirmatively represented that the fire was extinguished and it was clear that inaction could lead to harm. Moreover, there was obvious contact with the injured party and, under the circumstances, the jury could find that Trimble justifiably relied on the Department’s assurances about the fire. Thus, the court held that the Department was not entitled to summary judgment.

The court also reversed the trial court on the issue of governmental immunity. Immunity principles shield public entities from liability for discretionary actions taken during the performance of governmental functions. In this case, since the Department’s alleged negligence associated with failing to remove the materials near the window well could not be said to be the result of an affirmative decision, the court held that there was no evidence that the Department, in fact, exercised any discretion. Thus, the court found that the Department was not entitled to summary judgment on the issue of governmental immunity.

The Trimble holding is a reminder that, in fire rekindle cases, subrogation professionals should consider whether the circumstances of the case present sufficient evidence to argue that there was a special relationship between the fire department and the insured. Assuming that sufficient evidence exists, Trimble suggests that, although governmental immunity is generally a difficult defense to overcome, a court may reject the defense if there is evidence that the fire department failed to exercise its discretion. Alternatively, Trimble suggests that a court may reject a governmental immunity defense if there is evidence that the Department failed to follow its standard operating procedures and protocols. Thus, when faced with a potential immunity claim in a fire rekindle case in New York, as well as in other jurisdictions that apply similar legal tests, it is important to examine the facts of each case to analyze whether there is sufficient evidence to create a question of fact as to the existence of a special relationship. Similarly, subrogation professionals should examine the facts to analyze whether there is sufficient evidence to argue that the defendant is not entitled to immunity because its employees either failed to consider the issue in the first instance or failed to follow standard operating procedures and protocols.

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